Justia Medical Malpractice Opinion SummariesArticles Posted in North Dakota Supreme Court
St. Alexius Medical Center v. Nesvig, et al.
St. Alexius Medical Center, d/b/a CHI St. Alexius Health Bismarck, requested a supervisory writ preventing enforcement of the district court’s order compelling disclosure of privileged information. Kevin McKibbage sued Daniel Dixon, Bone & Joint Center, and CHI for medical malpractice relating to a surgery Dixon performed in 2017. In response to McKibbage’s discovery requests, CHI produced some of the requested documents and asserted privileges on others. CHI provided a privilege log identifying undisclosed documents and the privileges claimed. McKibbage filed a motion to compel arguing CHI did not provide sufficient information in the privilege log. CHI responded that it identified all the information it could without violating the peer review law, but CHI agreed to produce an amended privilege log containing greater descriptions. The district court found the law permitted the disclosure of additional information and ordered the following to be disclosed: the dates the documents were created, the identity of the person who created each document and their position at the time of creation, and the identity of the person who received each document and their position for peer review. CHI argued to the North Dakota Supreme Court that the disclosures violated North Dakota’s statutory peer review privilege. The Supreme Court granted CHI's petition and directed the district court to vacate its November 8, 2021 discovery order. View "St. Alexius Medical Center v. Nesvig, et al." on Justia Law
Krebsbach, et al. v. Trinity Hospitals, Inc., et al.
Mark Krebsbach appeals a district court judgment dismissing his lawsuit against Trinity Hospital relating to medical services provided to his wife. Krystal Krebsbach died in June 2016. In September 2013 she was diagnosed with hepatitis C while a patient at the ManorCare nursing home in Minot. Krystal’s diagnosis occurred during a hepatitis C outbreak in the Minot area. In September 2016 Krebsbach moved to intervene in a lawsuit with other plaintiffs against Trinity related to the hepatitis C outbreak. The district court granted Krebsbach’s motion in December 2016. Krebsbach’s complaint against Trinity alleged negligence, fraud, deceit and unlawful sales and advertising practices. Krebsbach claimed negligence and misconduct by Trinity’s staff and management caused Krystal Krebsbach’s hepatitis C. Krebsbach alleged Trinity engaged in actual fraud or deceit by misrepresenting the competency of its care providers and withholding information about its employees’ theft or misuse of drugs (known as drug diversion) and needle reuse. Krebsbach asserted Krystal Krebsbach relied on Trinity’s misrepresentations and allowed Trinity to provide her with phlebotomy services, which caused her to contract hepatitis C. The court dismissed Krebsbach’s action after a special master appointed by the court concluded the two-year statute of limitations for medical malpractice applied to Krebsbach’s action. The special master also concluded the action was barred because Krebsbach had notice of Trinity’s possible negligence more than two years before bringing his lawsuit. Krebsbach claimed the six-year statute of limitations under N.D.C.C. 28-01-16 applies to his negligence claims against Trinity. Before the North Dakota Supreme Court, Krebsbach argued the special master and district court erred in concluding he was on notice of Trinity’s possible negligence more than two years before commencing his action against Trinity. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal. View "Krebsbach, et al. v. Trinity Hospitals, Inc., et al." on Justia Law
McCarthy v. Getz
Kelly McCarthy appealed after a district court dismissed her complaint against Dr. Ariane Getz with prejudice. On September 23, 2015, McCarthy’s daughter died by suicide. Prior to her death, McCarthy’s daughter received psychological counseling from Dr. Getz for several months for symptoms relating to anxiety and depression. McCarthy’s daughter had ten total visits with Dr. Getz, occurring roughly once to twice a month. McCarthy’s daughter was a minor when she was first seen by Dr. Getz, but turned 18 prior to her death. During the course of her visits with Dr. Getz, McCarthy’s daughter expressed self-injurious behavior, anxiety, depression, passive thoughts about suicide, discord with her mother, and inconsistency in taking her medications. McCarthy’s daughter’s last visit with Dr. Getz occurred on September 10, 2015. On September 23, 2015, prior to discovering her daughter’s death, McCarthy contacted Dr. Getz to report her daughter missing. McCarthy requested Dr. Getz put her daughter on a 72-hour hold once located. On September 22, 2017, one day shy of the two-year anniversary of her daughter’s death, McCarthy filed a complaint with the district court. On November 9, 2017, McCarthy filed a summons and complaint alleging malpractice against Dr. Getz. McCarthy’s issue on appeal was whether the district court erred as a matter of law in granting the motion for summary judgment based on the statute of limitations. The North Dakota Supreme Court affirmed, concluding the district court did not err in determining McCarthy’s claim was barred by the statute of limitations. View "McCarthy v. Getz" on Justia Law
Ortega v. Sanford Bismarck, et al.
Nancy Ortega appealed a district court order granting summary judgment in favor of Sanford Bismarck and Dr. Christie Iverson on her professional negligence claim. The matter was dismissed without prejudice. Ortega was seen at Sanford Bismarck for upper right abdomen pain. A CT scan revealed she had a right ovarian tumor. Dr. Iverson performed surgery to remove her left ovary. The surgery included a hysterectomy, bilateral salpingectomy, left oophorectomy and lysis of adhesions. Several months later, Dr. Iverson performed a second surgery to remove the right ovary. Ortega filed suit alleging malpractice when Dr. Iverson removed the left ovary instead of the right. The hospital and doctor moved to dismiss, arguing Ortega could not establish she suffered any damages. Although not argued by the hospital or doctor, the trial court held Ortega failed to file an admissible expert opinion supporting a prima facie medical malpractice claim within three months of filing her action, as required under N.D.C.C. 28-01-46. The court held Dr. Iverson’s removal of the ovary was not an “obvious occurrence” precluding application of 28-01-46, and that the “wrong organ” exception in the statute did not apply. The North Dakota Supreme Court found that Sanford and Dr. Iverson did not assert Ortega’s claims were barred by N.D.C.C 28-01-46, and they conceded the statute would not apply. Under these facts and circumstances, the Supreme Court concluded the district court erred in applying N.D.C.C. 28-01-46 to grant summary judgment. The judgment was therefore reversed, and the matter remanded for further proceedings. View "Ortega v. Sanford Bismarck, et al." on Justia Law
Bride v. Trinity Hospital, et al.
Tessa Bride, as personal representative of the estate of John Pelkey, appealed an order dismissing without prejudice her medical malpractice action against Trinity Hospital, Marc Eichler, M.D., Kim Koo, M.D., and unnamed others. On September 11, 2015, Pelkey fell at home and was transferred to Trinity where he was treated for spinal cord injuries. Neurosurgeons Dr. Eichler and Dr. Koo both operated on him. On September 20, 2015, Pelkey fell at the hospital and sustained serious injuries. Pelkey died on February 2, 2017. The North Dakota Supreme Court affirmed because Bride failed to serve an affidavit containing an admissible expert opinion supporting a prima facie case of professional negligence within three months of the commencement of the action and failed to request an extension of the time period to serve the affidavit within the three months as required by N.D.C.C. 28-01-46. View "Bride v. Trinity Hospital, et al." on Justia Law
Condon v. St. Alexius Medical Center, et al.
Dr. Allen Booth and St. Alexius Medical Center appeal from a district court judgment finding North Dakota’s noneconomic damages cap in medical malpractice cases unconstitutional. Dr. Booth and St. Alexius also argue the district court erred in denying a motion for a new trial. On May 29, 2012, Chenille Condon gave birth to a child at St. Alexius Medical Center. Within hours, Condon complained about chest discomfort and shortness of breath. A pulmonary embolism was suspected and testing was ordered in an effort to diagnose the issue. Testing revealed multiple pulmonary nodules in Condon’s mediastinum. Condon was eventually referred to Dr. Booth for a mediastinoscopy for the purpose of collecting a larger tissue sample. The larger tissue sample was necessary for a definitive diagnosis. Not long into the procedure, an injury occurred to Condon’s right innominate artery, resulting in life-threatening bleeding. Condon was placed in intensive care where she had a stroke. The stroke was related to the injury that occurred during surgery. Condon underwent rehabilitation for several months. Condon filed a medical malpractice claim against Dr. Booth. After nine days of proceedings, the jury returned a verdict finding negligence and awarding Condon $265,000 in past economic loss, $1.735-million in future economic loss, $150,000 in past noneconomic loss, and $1.350-million in future noneconomic loss. The North Dakota Supreme Court concluded the damage cap in N.D.C.C. 32-42-02 did not violate the equal-protection provisions of N.D. Const. art. I, section 21. The Supreme Court reversed the district court’s judgment and remanded for a reduction in noneconomic damages consistent with the statute. The Court affirmed the district court’s denial of Dr. Booth’s request for a new trial. View "Condon v. St. Alexius Medical Center, et al." on Justia Law
Pierce v. Anderson
Petitioners Dr. Troy Pierce and the Bone & Joint Center petitioned for a supervisory writ following the district court's denial of their motion to dismiss. In 2015, Robert Carvell was injured in a vehicle accident. Carvell arrived at the Emergency Department at St. Alexius Medical Center in Bismarck, where the staff took note of Carvell's injuries. Carvell claimed Petitioners were negligent in failing to treat his fractured and dislocated right middle or third finger. The North Dakota Supreme Court cautiously exercises its supervisory jurisdiction to prevent injustice in extraordinary cases where there is no adequate alternative remedy. Under N.D.C.C. 28-01-46, an occurrence is not obvious if it takes place during a technical surgical procedure and is beyond the understanding of a layperson. The Court was "left with a definite and firm conviction" the district court clearly erred in concluding the obvious occurrence exception contained within N.D.C.C. 28-01-46 applied. Dr. Pierce's interrogatory answer and the report following the May 2015 surgery clearly established the alleged professional negligence occurred during a technical surgical procedure outside the plain knowledge of a layperson. Because the obvious occurrence exception applied only to cases that are plainly within the knowledge of a layperson, the district court erred in its factual determination that the exception applied. In the absence of an obvious occurrence, the district court erred as a matter of law in denying the Petitioners' motion to dismiss. The Supreme Court granted Petitioners' request for a supervisory writ and directed the district court to enter a judgment dismissing Carvell's complaint against Petitioners. View "Pierce v. Anderson" on Justia Law
Cartwright v. Tong, M.D.
Under N.D.C.C. 28-01-46, the plain, ordinary and commonly understood meaning of the phrase "wrong organ" requires a doctor to perform a procedure on the incorrect organ; a wrong organ exception does not apply to performing an allegedly incorrect procedure on the correct organ. In 2014, Roxane and Tim Cartwright sued Dr. Beverly Tong and Great Plains Women's Health Center alleging professional negligence stemming from a medical procedure performed following a caesarean section. Defendant Tong performed a salpingectomy, removing Roxane Cartwright's fallopian tubes, rather than performing a tubal ligation, as Roxane Cartwright had consented to. As a proximate result of the negligence of Defendant Tong, Plaintiff alleged she was permanently sterilized and no longer able to bear children, nor could she have the ability to reverse the procedure in order to bear children, as she would have had, if a tubal ligation had been performed. The Cartwrights appealed a district court order and judgment dismissing their complaint without prejudice. The Cartwrights argued the district court erred in dismissing their complaint because the "obvious occurrence" and "wrong organ" exceptions to N.D.C.C. 28-01-46 applied to their claim. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's order and judgment. View "Cartwright v. Tong, M.D." on Justia Law
Greene v. Matthys
Mechele Greene appealed a district court's judgment dismissing her claim without prejudice for failure to serve an affidavit from an expert witness on Gary Matthys, M.D., within three months of commencing the action under N.D.C.C. 28-01-46. In 2013, Matthys performed a revision left total hip arthroplasty involving the femoral component, femoral head, and acetabular liner. In late 2015, Greene commenced this medical negligence action by serving a summons and complaint on Matthys. Matthys answered, denying that either he or any of his employees were the "proximate or legal cause of any alleged injury, loss or damage claimed by Plaintiff." Greene's attorney disclosed the existence of an expert witness willing to testify on Greene's behalf in a letter to Matthys' attorney in early 2016. Matthys moved to dismiss Greene's claim under N.D.C.C. 28-01-46, arguing Greene failed to provide an affidavit from an expert witness within three months of commencing this action. Greene opposed the motion. After review, the Supreme Court concluded, as to the use of the term "affidavit," N.D.C.C. 28-01-46 was clear on its face; the statute required Greene to serve Matthys with an affidavit from an expert; and Greene did not met the requirements of N.D.C.C. 28-01-46 as a matter of law. Therefore, the Court affirmed the district court's judgment dismissing Greene's claim against Matthys. View "Greene v. Matthys" on Justia Law