Filed 7/11/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 190

Kelly McCarthy, Plaintiff, Appellant,

and Cross-Appellee

v.

Ariane Getz, PSYD, Defendant, Appellee,

and Cross-Appellant

No. 20180418

Appealfromthe District Court ofRichland County, Southeast Judicial District,

the Honorable Bradley A. Cruff, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Mark A. Meyer, Wahpeton, ND, for plaintiff, appellant, and cross-appellee.

Charlotte J. Skar Rusch, Fargo, ND, for defendant, appellee, and crossappellant.
McCarthy v. Getz

No. 20180418

McEvers, Justice.

[¶1] Kelly McCarthy appeals from a district court judgment dismissing her

complaint with prejudice. We affirm, concluding the district court did not err in

determining McCarthy’s claim was barred by the statute of limitations.

I

[¶2] On September 23, 2015, McCarthy’s daughter died by suicide. Prior to her

death, McCarthy’s daughter received psychological counseling from Dr. Ariane Getz

for several months beginning on February 23, 2015, 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.

[¶3] 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. On November 14, 2017, the summons and complaint were served on Dr. Getz.

Dr. Getz answered and claimed McCarthy’s claims were barred by the statute of

limitations. On May 23, 2018, Dr. Getz moved to dismiss the complaint or, in the

alternative, for summary judgment, arguing (1) expert testimony on the elements of

McCarthy’s claim for medical malpractice was not served upon Dr. Getz within three

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months of commencing suit as required by N.D.C.C. § 28-01-46, and (2) McCarthy’s

allegations were time-barred by the applicable statute of limitations under N.D.C.C.

§ 28-01-18(3). McCarthy responded to Dr. Getz’s motion. A hearing on Dr. Getz’s

motion was held where both parties presented oral argument. The court ruled from

the bench, stating:

Here, we have the injury, which is the unfortunate death of her

daughter and there was . . I don’t know the timing, but it was shortly

before that that she was imploring Dr. Getz to do a 72 hour hold. She

obviously was involved in her daughter’s behavioral health care at the

time. Well aware of what’s going on. And the objective question is

whether the plaintiff has been apprised of facts which would place a

reasonable person on notice that a potential claim exists. And, so, I do

believe you can only come to one conclusion. It does become a

question of law, not fact. And, like I said, I believe the Long case is on

point and with the death on . . . September 23 of 2015. That’s two year

statute of limitations, and unfortunately, the law has very harsh results. 

I’m going to find that the statute of limitations was missed in this case

and, as a result, will be dismissed with prejudice.

A written order and judgment were entered thereafter, granting Dr. Getz’s motion for

summary judgment.

[¶4] McCarthy’s issue on appeal is whether the district court erred as a matter of

law in granting the motion for summary judgment based on the statute of limitations. 

Dr. Getz cross-appeals from the court’s judgment, arguing the court erred in deciding

the issue of whether there was expert testimony to support the element of causation.

II

[¶5] We have articulated the standard of review for a similar case as follows:

Whether a district court properly granted summary judgment is

a question of law subject to a de novo standard of review on the entire

record. Under N.D.R.Civ.P. 56, summary judgment is appropriate if no

dispute exists as to the material facts or the reasonable inferences to be

drawn from the undisputed facts, or if resolving disputed facts will not

change the result and any party is entitled to judgment as a matter of

law. The evidence is reviewed in a light most favorable to the opposing

party.

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Long v. Jaszczak, 2004 ND 194, ¶ 7, 688 N.W.2d 173 (internal citations omitted).

III

[¶6] On appeal, McCarthy argues the statute of limitations began to accrue “much

later than the day her daughter died,” without identifying a specific time that her claim

accrued.

[¶7] Section 28-01-18(4), N.D.C.C., controls the statute of limitations for

McCarthy’s action based on her daughter’s death and reads, in pertinent part:

The following actions must be commenced within two years

after the claim for relief has accrued:

. . . .

4. An action for injuries done to the person of

another, when death ensues from such injuries,

and the claim for relief must be deemed to have

accrued at the time of the death of the party

injured; provided, however, that when death

ensues as the result of malpractice, the claim for

relief is deemed to have accrued at the time of the

discovery of the malpractice.

(Emphasis added.) Under N.D.R.Civ.P. 3, a civil action is commenced by the service

of a summons. 

[¶8] In Long, this Court applied N.D.C.C. § 28-01-18(4) and explained the contours

of North Dakota’s “discovery rule,” as follows:

This Court has adopted the discovery rule in medical malpractice cases

holding, “the 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 v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 12, 599 N.W.2d

253. The objective question is “whether the plaintiff has been apprised

of facts which would place a reasonable person on notice that a

potential claim exists.” Wheeler v. Schmid Laboratories, Inc., 451

N.W.2d 133, 137 (N.D. 1990). The plaintiff does not have to be

“subjectively convinced that he has been injured and that the injurywas

caused by the defendant’s negligence.” Id. A malpractice plaintiff’s

knowledge is ordinarily a question of fact which is inappropriate for

summary judgment. Schanilec, 1999 ND 165, ¶ 20, 599 N.W.2d 253. 

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However, this issue becomes a question of law when reasonable minds

could come to but one conclusion. Id.

2004 ND 194, ¶ 9, 688 N.W.2d 173.

[¶9] Here, the district court’s order stated: “Plaintiff’s knowledge of the injury, its

cause, and the Defendant’s possible negligence in this matter has become a question

of law because reasonable minds could come to but one conclusion.” McCarthy

argues the court erred in finding the issue was a question of law because: (1) 13 days

elapsed between McCarthy’s daughter’s final visit with Dr. Getz and her death and

therefore McCarthywould not have made the connection between Dr. Getz’s possible

malpractice and her daughter’s death; (2) due to her grief and guilt, McCarthy was

unable to believe anyone should be blamed for her daughter’s death; (3) grief

experienced by survivors of a child suicide victim is so overwhelming that survivors

lose the ability to blame the victim’s therapist; (4) reasonable minds could differ as

to when McCarthy would conclude Dr. Getz committed malpractice due to many

other factors possibly at play in the suicide, including peer pressure, academic

pressure, and parental guilt; and (5) Dr. Getz submitted no affidavit or evidence in

favor of her argument that reasonable minds could come but to one conclusion on the

issue.

[¶10] In Long, the plaintiff’s claim against one of his wife’s doctors was barred by

the statute of limitations under N.D.C.C. § 28-01-18 because more than two years

elapsed between the date his claim accrued and the date the wrongful death action was

commenced. 2004 ND 194, ¶ 11, 688 N.W.2d 173. In Long, the plaintiff’s wife was

examined by a doctor on July 6, 1999 for a recurring urinary tract infection. Id. at ¶

2. On July 9, 1999, the plaintiff’s wife went to the hospital for further treatment

ordered by her doctor. Id. On the same day, she suffered a reaction, went into shock,

and died on July 24, 1999. Id. The plaintiff commenced an action against one of his

wife’s doctors on July 13, 2001. Id. at ¶ 10. This Court held that on July 9, 1999,

“reasonable minds could come to but one conclusion, [plaintiff] was apprised of the

facts which would place a reasonable person on notice that a potential claim of

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medical malpractice existed.” Id. Applying N.D.R.Civ.P. 6(a), which provides that

when computing a time period prescribed by statute, the day of the act or event

triggering the running of time is not included, we clarified the statute of limitations

began to run on July 10, 1999. Id.

[¶11] Applying the holding in Long, 2004 ND 194, 688 N.W.2d 173, we agree with

the district court that the earliest date facts occurred which would place a reasonable

person on notice that a potential claim of medical malpractice existed was September

23, 2015—the dayMcCarthywas alerted her daughter had gone missing and the same

day she learned of her daughter’s death. It is undisputed McCarthy learned of her

daughter’s death on September 23, 2015. McCarthy’s argument focuses on the

assertion there was a factual dispute regarding the date she subjectively realized a

potential claim existed. McCarthy supports her argument that her delayed subjective

realization is actually objective by submitting an affidavit froman expert, Dr. Thomas

E. Joiner, Jr., who argues any surviving parent in McCarthy’s position would have

experienced guilt and grief of such great magnitude resulting in a delayed realization

of a potential claim. But see Weathers v. Fulgenzi, 884 P.2d 538, 543 (Okla. 1994)

(“affidavits and testimony from expert witnesses do not automatically create a

question for the jury to hear. Rather, such evidence may be used by the trier of law,

to determine whether the statute of limitations was tolled by the discovery rule.”). 

Our holding in Long does not consider the plaintiff’s subjective thought processes, a

survivor’s grieving process, or a survivor’s feelings of guilt. The holding in Long

applied an objective standard to determine the date the statute of limitations begins

to run in a wrongful death claim based on allegations of medical malpractice is the

date the plaintiff becomes aware that the medical treatment sought by the deceased

has not gone as planned.

[¶12] We have stated before that “the act of suicide evidences that the course of

treatment failed.” Champagne v. U.S., 513 N.W.2d 75, 78 (N.D. 1994) (answering

a certified question from the Eighth Circuit Court of Appeals regarding the effect of

comparative fault on a medical provider’s tort liability for treating a patient with

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suicidal ideas when the patient commits suicide). We have also recognized the

discovery rule “requires only that the plaintiff be aware of an injury; it does not

require the plaintiff to know the full extent of the injury.” Dunford v. Tryhus, 2009

ND 212, ¶ 10, 776 N.W.2d 539 (citing Erickson v. Scotsman, Inc., 456 N.W.2d 535,

539 (N.D. 1990)).

[¶13] In the context of a child’s suicide and the parents’ later wrongful death claim

against the child’s treating psychiatrist, at least one other court has held the date of the

child’s death by suicide put the parents on notice an injury had occurred. In Bellah

v. Greenson, 146 Cal. Rptr. 535, 541 (Cal. Ct. App. 1978), the deceased had been

seeing a psychiatrist when she made a “suicide gesture.” She continued receiving

treatment from the psychiatrist and later died by suicide. Id. The parents of the

deceased initiated a wrongful death action against the psychiatrist alleging that he had

“failed to personally take measures to prevent [their daughter’s] suicide; that he failed

to warn plaintiffs of the seriousness of [their daughter’s] condition and of

circumstances which might cause her to commit suicide; and that he had failed to

informplaintiffs that [their daughter] was consorting with heroin addicts in plaintiff’s

home.” Id. at 537. The plaintiffs argued the one-year bar did not apply to their

action, brought nearly two years after their daughter’s death, because their “discovery

of the injury, within the meaning of the statute, [could] only be deemed to have

occurred when the plaintiffs had reason to know that they had a cause of action

arising from [their daughter’s] death.” Id. at 540. The plaintiffs claimed the statute

of limitations was tolled until theywere allowed to examine the treating psychiatrist’s

medical records and learned from his notes that he “had concluded [their daughter]

was disposed to suicide.” Id. The California court held: “The events surrounding [the

deceased’s] death were sufficient to cause plaintiffsto inquire into the circumstances

about which they now complain. They were free to bring suit immediately, pursue

discovery and avail themselves of the opportunity to examine defendant’s records. 

It follows that the one-year period . . . was not tolled by defendant’s failure to disclose

his professional opinion that [the deceased] was suicidally disposed and that

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plaintiffs’ action was barred by their failure to bring suit within one year after [their

daughter’s] death.” Id. at 541. We agree with the reasoning articulated by the

California court construing the application of the discovery rule.

[¶14] Here, McCarthy was on notice that the psychological treatment her daughter

was receiving from Dr. Getz had not gone as planned the date her daughter committed

suicide. Notes from McCarthy’s daughter’s visits with Dr. Getz reveal McCarthywas

aware of her daughter’s mental health treatment and nothing in the record indicates

otherwise. The plan for treatment was to treat McCarthy’s daughter’s anxiety and

depression and associated symptoms. Her resulting death by suicide is an objectively

obvious fact that the goal of treatment had not been achieved as planned. Dr. Getz

correctly notes that McCarthy has not asserted any additional occurrences following

her daughter’s death causing her to be put on notice of a potential claim; “the only

occurrences are subjective: that McCarthy became convinced that she had a potential

claim against Dr. Getz.” Construing all inferences in favor of McCarthy, no dispute

exists that she discovered her daughter’s injury on September 23, 2015, and that she

commenced this action on November 14, 2017. See N.D.R.Civ.P. 3. Applying

N.D.R.Civ.P. 6, the statute of limitations did not begin to run until September 24,

2015, and therefore initiation of the action based on service upon Dr. Getz on

November 14, 2017, was barred by the statute of limitations. The district court did

not err in granting Dr. Getz’s motion for summary judgment.

IV

[¶15] We need not address Dr. Getz’s cross-appeal because our decision on the

statute of limitations is dispositive.

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V

[¶16] We affirm the district court’s judgment.

[¶17] Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Jon J. Jensen

Gerald W. VandeWalle, C.J.

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