Scheer v. Altru Health System

• Decision Date: 26 June 2007
• Docket Number: No. 20060333.,20060333.
• Citation: 734 N.W.2d 778,2007 ND 104
• Parties: Loretta SCHEER, Plaintiff and Appellant v. ALTRU HEALTH SYSTEM and Leslie Sullivan, M.D., Defendants and Appellees.
• Court: North Dakota Supreme Court

734 N.W.2d 778

2007 ND 104

Loretta SCHEER, Plaintiff and Appellant v. ALTRU HEALTH SYSTEM and Leslie Sullivan, M.D., Defendants and Appellees.

No. 20060333.

Supreme Court of North Dakota.

June 26, 2007.

Rehearing Denied July 25, 2007.

Richard A. Clapp (on brief) and Sarah S. Barron (argued), Pearson Christensen & Clapp, PLLP, Grand Forks, N.D., for plaintiff and appellant.

Randall S. Hanson (argued) and Donna M. Smith (appeared), Camrud, Maddock, Olson & Larson, Ltd., Grand Forks, N.D., for defendants and appellees.

SANDSTROM, Justice.

[¶ 1] Loretta Scheer appeals a district court judgment dismissing her professional negligence claim without prejudice for failing to timely serve an expert affidavit within the three-month statutory period. Section 28-01-46, N.D.C.C., provides an exception to dismissal, but only for good cause shown by the plaintiff. Concluding that a plaintiff may move for good cause as late as in response to the defendant's motion to dismiss, we reverse and remand to the district court to decide whether Scheer has shown good cause for an extension.

I

[¶ 2] Suffering abdominal pain, Scheer sought treatment at Altru Health System in February 2004. On March 4, 2004, Leslie Sullivan, M.D., operated on Scheer's gallbladder at an Altru Health System facility. Scheer was discharged the next day; however, according to Dr. Sullivan's treatment notes, later that evening Scheer had "crampy abdominal pain" and "felt something pull." Scheer notified Dr. Sullivan of these symptoms on March 8, 2004. On March 10, 2004, Dr. Sullivan surgically explored the site and then placed a drain in Scheer's bile duct. Apparently after further problems, Scheer was transferred first to a Fargo hospital and later, on March 12, 2004, to Mayo Clinic, where doctors informed her that part of her bile duct had been surgically removed.

[¶ 3] About two years later, on March 13, 2006, Scheer served Dr. Sullivan with a complaint, claiming Sullivan had negligently performed the gallbladder operation. The complaint was filed in the district court on March 9, 2006. Scheer contends she served Altru Health System on March 9, 2006, and although Altru had contended the service was improper, it is not cross-appealing on that ground. Therefore, for purposes of this appeal, Altru was served on March 9, 2006.

[¶ 4] On July 12, 2006, Dr. Sullivan and Altru moved to dismiss because of Scheer's alleged failure to serve them with an admissible expert affidavit, which is required under section 28-01-46, N.D.C.C. That motion was filed with the district court on July 17, 2006. Also on July 17, Scheer sent Altru and Sullivan Dr. Jeffrey Snow's March 1, 2006, letter containing his opinion that the operation had fallen below the standard of care. On July 17, 2006, Scheer also requested more time to respond to the motion to dismiss. On July 24, 2006, the district court granted Scheer's request for more time to respond to the motion to dismiss. On August 15, 2006, Scheer responded:

Defendants' motion to dismiss for Plaintiff's failure to serve the expert medical opinion required by N.D.C.C. 28-01-46 within three months of commencement of this action should be denied because this court's scheduling order has in effect extended the deadline for Plaintiff to disclose its expert until January 31, 2007, or, alternatively, because Plaintiff's failure to timely serve the expert report was the result of excusable neglect which has not prejudiced Defendants or the court; because dismissal of Plaintiff's complaint would not further the purposes of N.D.C.C. § 28-01-46, reducing the number of frivolous law suits; and because enforcement of the dismissal provision of N.D.C.C. § 28-01-46 as applied to the facts of this case violates due process.

[¶ 5] On August 25, 2006, Scheer served Altru and Sullivan with Dr. Snow's affidavit containing his opinion. According to Dr. Snow's affidavit, "the operation performed by Dr. Sullivan was below the standard of care. The common bile duct was mistaken for the cystic duct and it was cut and clipped instead of cutting and clipping the cystic duct."

[¶ 6] On October 17, 2006, the district court dismissed Scheer's lawsuit without prejudice because she failed to timely serve the expert affidavit. In dismissing the suit, the district court followed an Eighth Circuit Court of Appeals' opinion that had interpreted the 1997 version of section 28-01-46:

[A]ccording to the 8th Circuit, the trial court can only grant [Scheer]'s good cause motion if she filed that motion prior to Defendant filing a Motion to Dismiss for failure to obtain an expert opinion within three months. Weasel v. St. Alexius Medical Center, 230 F.3d 348, 353 (8th Cir.2000). . . .

. . . At the latest, Ms. Scheer's three-month time period expired on June 13, 2006, and Defendants filed their Motion to Dismiss on July 17, 2006. Even if Ms. Scheer has provided good cause for an extension, her request for an extension came too late. . . . Hence, the court is bound by the legislative intent of N.D.C.C. § 28-01-46, and Ms. Scheer's claim must be dismissed without prejudice.

Scheer appeals the district court judgment of dismissal.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] Scheer contends the district court's judgment of dismissal is appealable because she will be prevented from relitigating her claim upon a finding that the three-month period has lapsed.

[¶ 9] "`[A] dismissal without prejudice is ordinarily not appealable.'" Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d 1 (quoting Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 12, 632 N.W.2d 407). "However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum." Rodenburg, at ¶ 12 (citations omitted).

[¶ 10] As amended by the 2005 legislative assembly,¹ section 28-01-46, N.D.C.C., currently provides, in part:

Any action for injury or death alleging professional negligence by a physician, . . . hospital, . . . must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff.

(Emphasis added.)

[¶ 11] The three-month period operates within the confines of a two-year statute of limitations for medical malpractice claims. See N.D.C.C. § 28-01-18(3) (providing a two-year statute of limitations). Section 28-01-18(3) "is silent on when an action accrues, and consequently the determination of when an action accrues is an issue for the court." Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 11, 599 N.W.2d 253 (citing Baird v. American Medical Optics, 155 N.J. 54, 713 A.2d 1019, 1025 (1998)). "[T]he two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence." Schanilec, at ¶ 12 (citations and internal quotations omitted); see also Hoffner v. Johnson, 2003 ND 79, ¶ 11, 660 N.W.2d 909 ("The occurrence of the negligent act and the injury to the plaintiff will not always be concurrent, and in such cases the cause of action does not accrue until the injury has occurred and manifested itself.").

[¶ 12] In Van Klootwyk v. Baptist Home, Inc., we concluded: "Although the action was dismissed without prejudice, because the statute of limitations has run on Van Klootwyk's claims, the dismissal effectively forecloses further litigation of the claims in this state, and therefore, the judgment and amended judgment are appealable." Van Klootwyk, 2003 ND 112, ¶ 7, 665 N.W.2d 679.

[¶ 13] In this case, although Dr. Sullivan and Altru moved for summary judgment for Scheer's alleged failure to bring her claim within two years of having discovered her injury, the district court denied the summary judgment motion and reasoned:

The possibility that reasonable minds could differ is evidenced by the fact that Defendant Altru believes all reasonable minds would agree that if an individual experiences pain for three days after surgery he/she is on notice that a possible malpractice claim exists from that surgery. On the other hand, Plaintiff contends that just experiencing pain after surgery is insufficient in itself to suggest to an ordinary individual that he/she has an injury and a possible malpractice claim exists. Hence, summary judgment should be denied because there is a genuine issue of material fact in dispute as to when Ms. Scheer knew or should have discovered her injury.

[¶ 14] Scheer's brief states that "it is undisputed that [she] knew of her injury and its cause by March 12, 2004, since her precise injury . . . was diagnosed at the Mayo Clinic on March 12, 2004." Thus it appears that the dismissal of this case had the practical effect of terminating the litigation.

III

[¶ 15] Scheer contends the district court erred in its interpretation of section 28-01-46, because "nowhere does the language of N.D.C.C. § 28-01-46 provide that good cause by the plaintiff must be shown before the three month period expires or that the plaintiff must ask for an extension before the defendant moves to dismiss." Scheer also contends that "[s]ince the trial court did not specifically consider whether the [plaintiff] Scheer had good cause for an extension . . . this court should remand this case . . . for consideration of this issue."

[¶ 16] "Statutory interpretation is a question of law, fully reviewable on appeal." Ballensky v....