Zettel v. Licht

Decision Date15 June 1994
Docket NumberNo. 940067,940067
Citation518 N.W.2d 214
PartiesEdward ZETTEL, Plaintiff and Appellant, v. L.H. LICHT, Radiologists, Ltd., Fargo Clinic MeritCare, Defendants, Gordon Madland and Community Memorial Hospital, Lisbon, ND, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

J.P. Dosland, Dosland, Nordhougen, Lillehaug, Johnson and Saande, Moorhead, for plaintiff and appellant.

Patricia R. Ellingson, Nilles, Hansen & Davies, Ltd., Fargo, for defendants and appellees.

VANDE WALLE, Chief Justice.

Edward Zettel appealed from a summary judgment dismissing his medical malpractice claim against Gordon Madland and Community Memorial Hospital of Lisbon, as barred by the statute of limitations. We affirm.

On June 5, 1990 Dr. L.H. Licht, a radiologist, performed a venographic procedure on Zettel's right leg to determine the cause of swelling, pain, and redness in that leg. The procedure was conducted at Community Memorial Hospital, whose employee, Gordon Madland, a medical technician, assisted Dr. Licht. To conduct the procedure a needle was inserted through a vein in Zettel's right foot, and a contrast medium was injected through the needle into the vein. An x-ray was then taken of the area, for the radiologist to examine. During the procedure, an extravasation occurred in that the contrast medium escaped into the surrounding tissue of Zettel's foot. This is not supposed to occur, and it ultimately resulted in the amputation of the big toe of Zettel's right foot.

In December 1991, Zettel filed a malpractice claim against Dr. Licht and his employer, Radiologists, Ltd. However, Zettel did not take the deposition of technician Gordon Madland until May 21, 1993. During that deposition, Madland testified that he injected the contrast medium through the venographic needle and that during the procedure the needle came out. Madland said he was not sure how the needle was pulled loose. On June 23, 1993, Zettel amended his complaint to include a malpractice claim against Madland and Community Memorial Hospital. These defendants filed a motion for summary-judgment dismissal of Zettel's claim against them as being barred by the statute of limitations. The trial court granted the summary-judgment dismissal, and, because all other defendants had settled Zettel's claims against them, the court entered a judgment dismissing the entire case. Zettel appealed.

Under Section 28-01-18(3), N.D.C.C., a medical malpractice action must be commenced within two years of the discovery of the act or omission of alleged malpractice. The limitation period 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. Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D.1990). Knowledge is an objective standard which focuses upon whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists. Froysland v. Altenburg, 439 N.W.2d 797 (N.D.1989). The plaintiff's knowledge is ordinarily a fact question which is inappropriate for summary judgment, but the issue becomes one of law if the evidence is such that reasonable minds could draw but one conclusion. Wall v. Lewis, 393 N.W.2d 758 (N.D.1986).

Following the procedure, Zettel was immediately told that the extravasation occurred, and the resulting injury manifested itself soon thereafter. Zettel immediately recognized the radiologist's possible negligence for failing to properly conduct and monitor the procedure, and Zettel filed a timely malpractice claim against Dr. Licht and his employer. However, Zettel argues that a reasonable person, at the time the original suit was brought, would not have suspected possible negligence by Madland, the assisting technician. We disagree.

...

To continue reading

Request your trial
8 cases
  • Hoffner v. Johnson
    • United States
    • North Dakota Supreme Court
    • May 12, 2003
    ...and the defendant's possible negligence. Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 12, 599 N.W.2d 253; Zettel v. Licht, 518 N.W.2d 214, 215 (N.D.1994). [¶ 11] The second part of the statute provides that, in medical malpractice cases only, no cause of action may be brought after......
  • Schanilec v. Grand Forks Clinic, Ltd.
    • United States
    • North Dakota Supreme Court
    • August 25, 1999
    ...with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence." Zettel v. Licht, 518 N.W.2d 214, 215 (N.D.1994) (citing Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D.1990)); see also Iverson v. Lancaster, 158 N.W.2d 507 (N.D......
  • Knudson v. Director, North Dakota Dept. of Transp.
    • United States
    • North Dakota Supreme Court
    • March 16, 1995
    ...However, when the evidence is such that reasonable minds can draw but one conclusion, the issue becomes one of law. See Zettel v. Licht, 518 N.W.2d 214 (N.D.1994). At Hearing I, the relevant testimony revealed that Trooper French was within one hundred yards of the accident site, that he co......
  • Families Advocate, LLC v. Sanford Clinic N., CASE NO. 3:16-CV-00114
    • United States
    • U.S. District Court — District of North Dakota
    • April 7, 2019
    ...the Parents knew—or reasonably should have known—by June 23, 2014. 5. The R&R addresses and explains not only Schanilec, Zettel v. Licht, 518 N.W.2d 214 (N.D. 1994), Long v. Jaszczak, 688 N.W.2d 173 (N.D. 2004), Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D. 1990), and Froysland......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT