Weasel v. St. Alexius Medical Center

• Decision Date: 13 June 2000
• Docket Number: NORTH,No. 99-3332,NON-PROFI,N-PROFI,RTH,99-3332
• Citation: 230 F.3d 348
• Parties: (8th Cir. 2000) DALE WEASEL, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR MARY ROSE KILLS CROW WEASEL, A TOTALLY DISABLED PERSON AND THEIR MINOR CHILDREN IN'YAN DEMETRICE WEASEL, IRA WEASEL, AND CHEYENNE WEASEL, AND THEIR EMANCIPATED CHILDREN JENNIFER WEASEL, WAYLON WEASEL AND CLYDE WEASEL,APPELLANTS, v. ST. ALEXIUS MEDICAL CENTER, ADAKOTA CORPORATION, AND ATTENDING PHYSICIAN JERRY OBRITSCH, M.D., FACOG, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 348

230 F.3d 348 (8th Cir. 2000)

DALE WEASEL, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR MARY ROSE KILLS CROW WEASEL, A TOTALLY DISABLED PERSON AND THEIR MINOR CHILDREN IN'YAN DEMETRICE WEASEL, IRA WEASEL, AND CHEYENNE WEASEL, AND THEIR EMANCIPATED CHILDREN JENNIFER WEASEL, WAYLON WEASEL AND CLYDE WEASEL,APPELLANTS, v. ST. ALEXIUS MEDICAL CENTER, A NON-PROFIT, NORTH DAKOTA CORPORATION, AND ATTENDING PHYSICIAN JERRY OBRITSCH, M.D., FACOG, APPELLEES.

No. 99-3332

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 13, 2000

Filed: October 13, 2000

Appeal from the United States District Court for the District of North Dakota.

Before Hansen and Heaney, Circuit Judges, and Mills, ¹ District Judge.

Mills, District Judge

A medical malpractice case.

I. Background

On August 27, 1996, Mary Rose Kills Crow Weasel, the wife of Dale Weasel, gave birth to a child at St. Alexius Medical Center in Bismark, North Dakota. Dr. Jerry Obritsch delivered the child by caesarian section. Mary Weasel, a member of the Standing Rock Sioux Indian Tribe, was diabetic and overweight at the time of delivery. She was approximately five feet tall, and had gained over 50 pounds during her pregnancy. Notwithstanding Mary Weasel's physical condition, the delivery was uncomplicated, and she was scheduled for discharge just a few days following the birth of her child.

On August 29, 1996, however, Mary Weasel went into cardiac arrest, suffered permanent brain damage and remains in a coma to this day.

On August 19, 1998, Dale Weasel, on behalf of his wife and children (collectively the "Weasels"), filed this medical malpractice action against St. Alexius ("Hospital") and Dr. Obritsch in federal court asserting diversity jurisdiction.

Approximately six months later, in February of 1999, the Hospital and Dr. Obritsch moved to dismiss the action based on the Weasels' failure to retain and file an expert's affidavit within three months of the filing of the Complaint as required under North Dakota law. See N.D.C.C. 28-01-46. On February 23, 1999, the Weasels filed a response informing the court that the medical records were submitted to one physician and two registered nurses and that their findings were about to be submitted. Moreover, the Weasels' attorney suggested to the district court that they needed financial assistance from the Standing Rock Sioux Tribe to finance the litigation, but that the financial assistance "was received once, . . . retracted once and now might be available again." As such, the Weasels requested an additional 90 days to tender the expert's opinion, and if they failed to do so, their attorney stated that he would advise the Weasels to voluntarily dismiss the case.

On March 2, 1999, the Weasels filed a supplement to their response which contained an affidavit executed by Teresa Price, R.N. She opined that Appellees were negligent. The affidavit also pointed out that she was consulting with Dr. Morrow with regard to this case. At that time, the Weasels also told the court that a second opinion was forthcoming from Dr. Morrow.

The district court, on March 30, 1999, dismissed the action without prejudice for failure to comply with the affidavit requirement in N.D.C.C. 28-01-46. With regard to the nurse's affidavit, the district court rejected that opinion stating, "[t]he statute contains the words 'admissible expert opinion.' I am not sure that the opinion of a registered nurse would be admissible as to the standard of care to be followed by a surgeon or an ob/gyn specialist."

On April 9, 1999, the Weasels filed a motion to reconsider, stating that medical experts were ready to submit opinions when they were assured of payment. With this motion, the Weasels also filed an affidavit of Standing Rock Tribal Chairman Charles Murphy. In his affidavit, Chairman Murphy stated that the tribe will "financially assist the Weasel family in obtaining both the medical expert opinions and paying for continued legal representation . . . ." Moreover, the Weasels argued that the court should grant some leeway because their ability to raise funds was hampered by internal tribal politics.²

The district court denied this motion finding that there were no exceptions to the statute based on the Weasels being members of an American Indian tribe or because of their financial difficulties.

The Weasels filed a second motion to reconsider, but on July 30, 1999, the district court also denied that motion. This appeal followed.

II. Issue

The sole issue in this case is whether the district court erred in dismissing Appellants' case without prejudice when Appellants failed to provide an admissible expert's affidavit within the three month period mandated by state statute.

III. Discussion.

Under North Dakota law, a plaintiff who asserts a medical malpractice claim must file an expert affidavit with the court within three months of filing the suit, unless good cause is shown. The statute in question states:

28-01-46 Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases. 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.

N.D.C.C. 28-01-46 (1997) (emphasis added).

This statute was designed to minimize frivolous claims against physicians, nurses, and hospitals by avoiding the necessity of a trial in an action based upon professional negligence unless the plaintiff obtains an expert opinion to substantiate the allegations of negligence. See Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D. 1989); Fortier v. Traynor, 330 N.W.2d 513, 516 (N.D. 1983). This section, however, does not require a plaintiff to complete discovery or to establish a prima facie case in an accelerated time frame. See Ellefson v. Earnshaw, 499 N.W.2d 112, 114 (N.D. 1993). As the plain wording of the statute dictates, a plaintiff must merely make a proffer of admissible expert opinion within three months of filing the suit or at a later time as granted by the court. See Larson v. Hetland, 593 N.W.2d 785, 787 (N.D. 1999).

In this case, the three month period ran on November 20, 1998. ³ There is no dispute that Appellants did not file an affidavit within the three month period as provided by the statute. More importantly, the record reflects that Appellants did not seek to extend the three month deadline prior to the limitations period running. Nor did they seek an extension of time before the Appellees filed the motion to dismiss. Regardless, Appellants raise basically two points of error allegedly committed by the district court in applying the above referenced statute: first, Appellants argue that they showed "good cause" for extending the time to procure the expert's affidavit; and second, Appellants argue that the district court improperly rejected Appellant's proffer of Nurse Price's affidavit.

For the following reasons, we affirm.

A.

Initially, the Court notes that there is a dispute as to the applicable standard of review that we should apply to the district court's decision to dismiss Appellants' case without prejudice. Since our jurisdiction in this case is based on diversity, we look to state law for the proper standard of review. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938); see, e.g., Burke v. Deere & Co., 6 F.3d 497, 511 (8 th Cir. 1993) (applying state law standard of review in a diversity case in the context of reviewing for sufficiency of the evidence). The Supreme Court of North Dakota has not definitively decided what standard of review applies to a trial court's decision applying the statute involved in this case. See Larsen v. Zarrett, 498 N.W.2d 191, 195 n.2 (N.D. 1993). It has, however, applied the "abuse of discretion" standard in an unpublished opinion. See Johnson v. Kennedy, No. 89-0341, 1990 WL 36947, at *1 (N.D. Mar. 1, 1990). But, the court has also stated that the "standard of review under N.D.C.C. 28-01-26 may vary depending on the procedural posture of the case," Larson v. Hetland, 593 N.W.2d 785, 787 n.1 (N.D. 1999), and that "greater leniency for the plaintiff who is subject to a motion for dismissal under 28-01-46 may be required than is typically given under either [evidentiary-abuse-of-discretion or summary judgment's genuine-issue-of-material-fact] standard." Zarrett, 498 N.W.2d at 195 n.2.

Given the procedural posture of the case, we conclude that we should give greater leniency to Appellants and will apply a standard of review that is somewhat lower than the traditional standard of review for abuse of discretion when considering this case. With that focus, we now turn to the merits of Appellants' arguments for reversal.

B.

Appellants argue that the district court should have granted additional time for them to make a proffer because they demonstrated "good cause." Specifically, Appellants point out that "good cause" for additional time was shown when they presented Teresa Price's affidavit, which contained a statement that she would be collaborating with Dr. Robert Morrow. Appellants argue that the proffer was evidence of a "good faith" effort to comply with the statute...