Van Klootwyk v. BAPTIST HOME, INC

• Decision Date: 16 July 2003
• Docket Number: No. 20020325.,20020325.
• Citation: 2003 ND 112,665 N.W.2d 679
• Parties: Michelle VAN KLOOTWYK, Jim Wilhelm, Greg Wilhelm, as heirs and representatives of the Estate of Gladys Wilhelm, deceased; and Michelle Van Klootwyk, Jim Wilhelm, and Greg Wilhelm, as survivors of Gladys Wilhelm, deceased, Plaintiffs and Appellants, v. BAPTIST HOME, INC., a North Dakota non-profit corporation, Defendant and Appellee.
• Court: North Dakota Supreme Court

665 N.W.2d 679

2003 ND 112

Michelle VAN KLOOTWYK, Jim Wilhelm, Greg Wilhelm, as heirs and representatives of the Estate of Gladys Wilhelm, deceased; and Michelle Van Klootwyk, Jim Wilhelm, and Greg Wilhelm, as survivors of Gladys Wilhelm, deceased, Plaintiffs and Appellants, v. BAPTIST HOME, INC., a North Dakota non-profit corporation, Defendant and Appellee.

No. 20020325.

Supreme Court of North Dakota.

July 16, 2003.

Charles "Casey" L. Chapman, Chapman and Chapman, Bismarck, ND, for plaintiffs and appellants.

Steven A. Storslee, Storslee Law Firm, P.C., Bismarck, ND, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Michelle Van Klootwyk, Jim Wilhelm, and Greg Wilhelm, as heirs and representatives of the estate of Gladys Wilhelm (collectively "Van Klootwyk"), appealed from a judgment and amended judgment dismissing, without prejudice, their wrongful death and personal injury action against Baptist Home, Inc. Because Van Klootwyk's lawsuit is not an action against a physician, nurse, or hospital licensed by the state, we conclude N.D.C.C. § 28-01-46 does not apply and the trial court erred in dismissing the case. We reverse and remand for further proceedings.

I

[¶ 2] In June 1998, Gladys Wilhelm was admitted to the Baptist Home, which is a nursing home located in Bismarck. Wilhelm was 79 years old at the time and had been diagnosed with Parkinson's Disease and Shy-Drager's Syndrome. Wilhelm also suffered from chronic constipation, and her personal physician, who was the Baptist Home medical director, issued standing orders for her treatment.

[¶ 3] On November 19, 1999, the charge nurse on duty at the Baptist Home ordered two certified nurse assistants to administer a Fleet enema to Wilhelm to attempt to relieve her constipation. After administering the enema, the nurse assistants noticed blood in the toilet and contacted the charge nurse. The charge nurse discovered hard stool protruding from Wilhelm's anus, determined digital extraction of the stool was necessary, and performed the procedure. Wilhelm was then placed into bed. A charge nurse who later came on duty discovered a fissure on Wilhelm's anal sphincter and called Wilhelm's physician, who prescribed medication. After Wilhelm continued to suffer rectal bleeding, she was examined by her physician on November 20, 1999, and the physician issued new orders for her care.

[¶ 4] Wilhelm was examined by another physician on November 22, 1999, and was diagnosed with gangrene infection in the rectal area. Physicians agreed Wilhelm would not survive surgery to remove the gangrene infected tissue. Wilhelm was given hospice care at the nursing home and died on November 30, 1999.

[¶ 5] In November 2000, Wilhelm's surviving children commenced this action against the Baptist Home for wrongful death and personal injury. Van Klootwyk alleged:

V.

Employees and/or agents of the Defendant Baptist Home, Inc. failed to fully follow the procedures of the Defendant Baptist Home, Inc. in dealing with the constipation problem of Gladys Wilhelm.

VI.

In addition, one or more of the employees and/or agents of the Defendant Baptist Home, Inc., in attempting to physically remedy the constipation problem of Gladys Wilhelm, breached the applicable standard of care and negligently caused injury to Gladys Wilhelm.

VII.

Following injury to Gladys Wilhelm, the employees and/or agents of Defendant Baptist Home, Inc. failed to adequately care for the injury, thereby exacerbating the effect of the injury.

VIII.

As a result of the actions and inactions of the Defendant Baptist Home, Inc. acting by and through its employees and/or agents, Gladys Wilhelm contracted gangrene and died.

IX.

The failure of the employees and/or agents of the Defendant Baptist Home, Inc. to satisfy applicable standards of care in the events leading to the death of Gladys Wilhelm constitute negligence.

[¶ 6] In May 2002, the Baptist Home moved for summary judgment of dismissal. The Baptist Home argued Van Klootwyk had failed to comply with the three-month limit for obtaining an admissible supporting expert opinion under N.D.C.C. § 28-01-46, and alternatively, had failed to produce an expert opinion to establish a prima facie case of medical malpractice. Van Klootwyk responded with an affidavit from a Texas physician who opined that "the Baptist Home staff was negligent in causing Mrs. Wilhelm's sphincter tear," "the Baptist Home staff was negligent in its failure to fully and adequately report the nature of that injury to the attending physician," and "the negligence of the Baptist Home staff, in its failure to provide appropriate care to Gladys Wilhelm, led to the gangrene infection, which eventually caused her death." The trial court ruled N.D.C.C. § 28-01-46 applied to Van Klootwyk's action, and because no admissible expert opinion to support the allegations of professional negligence was provided within three months of the commencement of the litigation and Van Klootwyk had not moved to extend the time for obtaining an expert opinion, the court dismissed the action without prejudice. The trial court did not rule on the Baptist Home's alternative theory that Van Klootwyk had failed to produce an expert opinion to establish a prima facie case of medical malpractice.

[¶ 7] Van Klootwyk appealed from a judgment and amended judgment dismissing the action without prejudice. 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. See Haugenoe v. Bambrick, 2003 ND 92, ¶ 2, 663 N.W.2d 175

; Jaskoviak v. Gruver, 2002 ND 1, 638 N.W.2d 1.

II

[¶ 8] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after reviewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, ¶ 4, 655 N.W.2d 411. The interpretation of a statute is a question of law. Dennison v. North Dakota Dep't of Human Services, 2002 ND 39, ¶ 6, 640 N.W.2d 447. Whether the trial court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph's Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

[¶ 9] In dismissing Van Klootwyk's lawsuit, the trial court relied upon N.D.C.C. § 28-01-46, which provides:

Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff. The expert's affidavit must identify the name and business address of the expert, indicate the expert's field of expertise, and contain a brief summary of the basis for the expert's opinion. This section does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient's body, or other obvious occurrence.

[¶ 10] The statute "attempts to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to support the allegations of negligence in the early stages of litigation." Haugenoe, 2003 ND 92, ¶ 10, 663 N.W.2d 175. The statute provides for preliminary screening of totally unsupported claims and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim. Jaskoviak, 2002 ND 1, ¶ 2, 638 N.W.2d 1. It was enacted to prevent the necessity of an actual trial in those cases. Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 8, 622 N.W.2d 195. The statute does not require the plaintiff to complete discovery or to establish a prima facie case during the accelerated three-month time frame, but merely requires the plaintiff to come forward with an expert opinion to support the allegations of malpractice. Ellefson v. Earnshaw, 499 N.W.2d 112, 114 (N.D. 1993).

[¶ 11] Van Klootwyk argues the trial court erred in dismissing the action because she has not sued a "physician, nurse, or hospital licensed by the state," the three categories covered by N.D.C.C. § 28-01-46. We agree.

[¶ 12] We summarized the rules of statutory construction in Public Serv. Comm'n v. Wimbledon Grain Co., 2003 ND 104, ¶¶ 20-21, 663 N.W.2d 186:

[O]ur duty is to ascertain the Legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature's intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721.

Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. Meljie v. North Dakota Workers Comp. Bureau, 2002 ND 174, ¶ 15, 653 N.W.2d 62; Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. We presume the

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