### File d 7 /1 1 /1 9 b y Cle r k o f S u p r e m e Co u r t
IN THE S UPREME COURT
S TATE OF NORTH DAKOTA

2019 ND 190

Kelly McCarthy , Plaintif f , Appellant, and Cross-Appellee

v.
Ariane Getz, PSYD, D ef endant, Appellee, and Cross-Appellant

No. 20180418

A p p e a l f r om the District Court of Richland County , Southeast Judicial D i s t r i c t , the Honorable Bradley

A. Cruf f , Judge.

AFFIRMED.
Opinion of

the Court by

McEvers, Justice.
Mark A. Mey er, W ahpeton, ND, f or plaintif f , appellant, and cross-appellee.

Charlotte J

. Skar Rusch, Fargo, ND, f or def endant, appellee, and crossappellant.McCarthy v. Getz
No. 20180418

McEvers, Justice. [ ¶1] Kelly M c Carthy appeals f rom a d istrict c o u r t j udgm ent dism issing her

com plaint with prejudice. W e a f f i r m , c oncluding the district court did not err in
determ ining McCarthy ’ s claim was barred by

the statute of

lim itations.

I [ ¶2] On Septem

ber 23, 2 015, McCarthy ’ s dau g h t er died by s uicide. Prior to her death, McCarthy ’ s daughter received psy chological counseling f rom Dr. Ariane Getz
f or s everal m onths beginning on February 23, 2015, f or sy m ptom s relating t o anxiety
and depression. McCarthy ’s d a ughter had ten total visits with Dr. Getz, occurring roughly o nce t o twice a m onth. McCarthy ’s daughter was a m inor w hen she was f irst

seen by Dr. Getz, but turned 18 prior to her death. D uring the c o urse of her visits with
D r

. G e t z , M c C a

r t h y ’ s d a u g h ter expressed self

-injurious behavior, anxiety , d epr e s s i o n , passive thoughts about suicide, discord with her m other, and inconsistency in t aking
h e r m edications. McCarthy ’s daughter’s last visit w ith Dr. Getz occurred on Septemb er 10, 2 015. On Septem ber 23, 2015, prior to discovering her daughter’s
deat h , M c Carthy c ontacted Dr. Getz to report her d aughter m issing. McCarthy requested Dr. Getz put her daughter on a 72-hour hold once located. [ ¶3] On Septem

ber 22, 2017, one da y s h y o f t he two-y ear anniversary of her daughter’s death, McCarthy f iled a c om

plaint with t he district court. On Novem ber 9, 2017, McCarthy

f i led a sum m ons and com

plaint alleging m alpractice against Dr.
Getz. On Novem

ber 14, 2017, the sum m ons and com plaint were served o n Dr. Getz.
Dr. Getz a n s w e red and c laim ed McCarthy ’s claim s were barred by the s t atute of
lim itations. On May 23, 2018, Dr. Getz moved to dism iss t he c o m plaint or, in the alternative, f

or sum m ary

judgm ent, arguing (1) expert testim ony on the elem ents of McCarthy ’s c laim f

or m edical m alpractice was not served upon D r. Getz within three

1m onths of com m encing suit as required by N.D.C.C. § 28-01-46, a nd (2) McCarthy ’s

allegations were tim e-barred by the a pplicable statute of lim itations under N.D.C.C. § 2 8-01-18(3). McCarthy responded t o Dr. Getz’s m otion. A hearing on D r

. Getz’s

m otion was held where both parties presented o ral argum ent. The court ruled f rom the bench, stating:

Here, we have the injury , which is t he unf o rtunate death of her daughter and t here w as

. . I don’t know t he tim ing, but it w as shortly bef ore t hat that she was im

p loring Dr. Getz t o do a 72 hour hold. S he obviously was involved in her daughter’s behavioral health care at the tim e. W ell aware o f what’s going on. And the objective question is whether the plaintif

f h a s b e e n apprised of f

acts which w ould place a reasonable person on notice that a potential claim exists. And, so, I do believe y ou c a n o n l y c o m e to one conclusion. It does becom e a question of law, not f

a ct. And, like I s aid, I believe the Long case is on point and with the d eath on

. . . Septem ber 2 3 of 2015. That’s two y ear statute of lim itations, and unf ortunately , t he law has very harsh results. I’m going to f

i nd that the statute of lim itations was m issed in this c ase and, as a result, will be dism i ssed with prejudice.
A written order and judgm ent were e ntered t hereaf ter, granting Dr. Getz’s m o tion f or

sum m ary judgm ent. [ ¶4] McCarthy ’s issue on appeal is whether t he district court er r e d as a m a tter of
law in granting the m o t ion f o r sum m ary judgm ent based on t he statute of lim i tations.
Dr. Getz cross-appeals f

rom the court’s judgm ent, arguing the court erred in deciding
the issue of whether there was expert testim ony to support the elem ent of causation.

I I [ ¶5] W e have articulated the standard of review f o r a sim ilar case as f

ollows:
W hether a district court properly granted sum m ary judgm ent is

a question of law subject to a de novo standard of review on the entire record. Under N.D.R.Civ.P. 56, sum m ary judgm ent is appropriate if no dispute exists a s to t he m aterial f acts or the reasonable inf

erences to be drawn f rom t he undisputed f

acts, o r i f resolving disputed f a cts will not change the result and any p arty is entitled to judgm ent as a m atter of law. T he evidence i s reviewed in a light m ost f avorable to the opposing party

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

III [ ¶6] On appeal, McCarthy argues the statute o f lim itations b egan to accrue “m uch
later than the day h er daughter died,” without identif y ing a specif

ic tim e that her claim
accrued. [ ¶7] Section 28-01-1 8 ( 4 ) , N.D.C.C., controls the statute of lim itations f or McCarthy ’s action based on her daughter’s death and reads, in pertinent part:

The f ollowing actions mu s t b e c om m enced within two y ears af ter the claim

f or relief has accrued:

. . . . 4. An action f

or injuries done to the person of another, w hen death ensues f rom such injuries, and the claim f

or r e lief m

ust be deem ed to have accrued at the tim e of t h e death of the p arty injured; pro v i d ed, however, t hat 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

. (Em phasis added.) Under N.D.R.Civ.P. 3, a civil action is c om m enced by t he service
of a sum m ons. [ ¶8] In Long , t his Court applied N.D.C.C. § 28-01-18(4) and explained t he contours of North Dakota’s “discovery rule,” as f

o llows:
This Court has adopted the d iscovery rule in m edical m alpractice cases holding, “the two-y ear statute of l im itations begins to r un when the plaintif f knows, or with reasonable diligence should know, o f ( 1 ) the injury , (2) its cause, a nd (3) the d ef endant’s possible negligenc e .” Schanilec v. Grand Forks Clinic, Ltd. , 1999 ND 165, ¶ 12, 5 99 N.W .2d 253. The objective q

uestion is “whether t he plaintif f has been apprised of f acts which would place a reasonable person on notice tha t a potential claim exists.” W heeler v. Schmid Laboratories, In c

. , 4 51 N

. W. 2 d 1 3 3 , 137 (N.D. 1990). T he plaintif f does not have to be “subjectively convinced that he has been i njured a nd that the injury was caused by the def

en d a n t ’s negligence.” Id. A m alpractice plaintif f ’s knowledge is ordinarily a question o f f a c t which is inappropriate f or
sum m ary judgm ent. S

chanilec , 1999 ND 1 65, ¶ 20, 5 99 N.W .2d 253.

3However, t his issue becom es a question of law when reasonable m inds

could com e to but one conclusion. Id. 2004 ND 194, ¶ 9, 688 N.W .2d 173. [ ¶9] Here, the district court’s order stated: “Plaintif f ’s knowledge of the i njury , its

cause, and the Def

e ndant’s possible negligence in this m atter has becom e a question
of law because reasonable m inds could com e to but one conclusion.” M cCarthy

argues the court erred in f inding t he issue was a question of l aw b ecause: (1) 13 day s elapsed b etween McCarthy ’s daughter’s f i nal visit with Dr. G e t z and h er death and
theref ore McCarthy would not have m a de the connection between Dr. Getz’s possible

m alpractice a nd her daughter’s death; (2) due to her grief and guilt, McCarthy was

u n a ble to believe anyone should be blam ed f or her daughter’s death; (3) gri e f experienced by survivors of a child suicide victim i s so overwhelm i ng that survivors
lose the ability to blam e the victim ’s therapist; (4) r easonable m inds could dif f er as
to w hen McCarthy would conclude Dr. G e t z c o m m itted m alpractice due to m any other f actors possibly at play in the suicide, i ncluding peer pressure, a c adem ic

pressure, and p a rental guilt; and (5) Dr. Getz subm itted no a f f idavit o r evidence in
f avor of her a rgum ent that reasonable m inds could com e but to one conclusion o n the
issue. [ ¶10] In Long , the plaintif f ’ s claim against one of

his wif e’s d octors was b arred by

t h e s t a tute of l im i tations under N.D.C.C. § 2 8-01-18 because m ore than two y e a r s elapsed between the date his c laim accrued and the date the wrongf ul death action was

com m enced. 2004 ND 194, ¶ 11, 688 N.W .2d 173. In Long , t he p laintif f ’s w if e was

exam ined by a doctor o n July 6, 1999 f or a recurring urinary tract inf ection. Id

. at ¶
2. On Ju l y 9 , 1 9 9 9 , the p laintif f ’s wif e went to the hospital f

or f urther t reatm ent ordered by her doctor. Id

. O n the sam e day , she suf f ered a r eaction, went into shock,
and died on J uly 24, 1 999. Id

. The plaintif f com m enced an action against o ne of his
wif e’s d o ctors on July 13, 2001. Id

. at ¶ 10. This Court held that on J u ly 9, 1999,
“reasonable m inds could com e to but o ne conclusion, [ plaintif f ] was apprised of the
f acts which would place a reasonable person on not i c e t h a t a potential claim of

4m edical m alpractice e xisted.” Id. Apply ing N.D.R.Civ.P. 6(a), which provides that

when com

puting a tim e period prescribed by statute, the d ay of th e a c t o r event triggering the running of tim e is not i ncluded, we clarif ied the statute of lim itations began to run on July

10, 1999. Id

. [ ¶11] Apply ing t he h olding in Long , 2004 N D 194, 688 N .W .2d 173, we a gree with
the district court that the earliest date f acts occurred which would place a r easonable

person on notice that a potential claim of m edical m alpractice existed was Septem ber 23, 2015—the day McCarthy was alerted her d aughter had gone m issing and the sam e day she l earned of her daughter’s dea t h

. I t i s undisputed McCarthy learned of her daughter’s death on Septem ber 2 3 , 2 015. McCarthy ’ s argum ent f ocuses on the
assertion the r e was a f

actual d ispute regarding the date she subjectively realized a potential claim e xisted. M cCarthy supports h er argum ent that her delay ed subjective
realization is actually objective by subm itting an af f idavit f rom an e xpert, Dr. Thom as E. Joiner, Jr., who argues any surviving p arent i n McCarthy ’s p o s i tion would have experienced guilt and grief o f s uch great m agnitude resulting i n a delay ed realization
of a potential claim

. But see W eathers v. Fulgenzi , 884 P.2d 538, 543 (Okla. 1994) ( “ a f f i d a v its and testim ony f

r om expert w itnesses do not autom atically create a question f or the jury to hear. Rather, such evidence m a y be used b y the trier of law,

to determ ine whether the statute o f l im itations was tolled by the discovery rule.”).
Our holding in Long d oes not c onsider the plaintif f ’s subjective thought processes, a

s u r v i v o r ’ s grieving process, or a survivor’s f eelings of g uilt. The holding in Long applied a n objective standard to determ ine th e d a t e the statute of lim itations begins

to r un in a wrongf

ul death c laim b a sed on allegations of m edical m alpractice is the
date the plaintif

f b ecom es aware that the m edic a l t r e a t ment sought b y the deceased has not gone as planned. [ ¶12] W e have stated bef ore that “ t h e act of suicide evidences t hat the course of

treatm ent f

ailed.” Champagne v. U.S. , 513 N.W.2d 75, 7 8 ( N.D. 1994) (answering

a c ertif ied question f

rom the Eighth Circuit Court of Appeals regarding t he ef f ect of

com parative f ault on a m e d i c a l p r ovider’s t ort liability f or treating a p atient with
5suicidal ideas when the patient com m its suicide). We have also recognized the

discovery rule “requires only that the plaintif f be a ware of a n inju r y ; i t does not require the plaintif

f to know the f

ull extent of

the injury

. ” Dunford v. Tryhus , 2009
ND 212, ¶ 10, 776 N.W .2d 539 (citing Erickson v. S cotsman, Inc. , 456 N.W .2d 535, 539 (N.D. 1990)). [ ¶13] In t he context o f a child’s suicide a n d the parents’ l ater wrongf ul death claim against the child’s treating psy chiatrist, at least o ne other c o urt has held the date of the
child’s death b y suicide put the parents on notice an injury h ad o ccurred. In Bellah

v. G reenson , 146 Cal. Rptr. 5 3 5 , 541 (Cal. C t. App. 1978), the deceased had been seeing a psy chiatrist w h e n s he m ade a “suicide gesture.” She continued receiving

treatm ent f

rom the psy chiatrist and later died by sui c i d e

. I d

. The parents of the
deceased initiated a wrongf ul d eath action against the psy chiatrist alleging that he had
“f ailed to personally t ake m easures to prevent [ their daughter’s] suicide; t hat he f ailed

t o warn plaintif

f s o f the seriousness of [ their d aughter’s] condition and o f
circum stances which m ight cause her to com m i t suicide; and t h a t h e h a d f ailed to inf orm plaintif

f s that [ their daughter] was consorting with heroin addicts in plaintif f ’s
hom e.” Id

. at 537. The plaintif f s argued the o ne-y ear b ar did not a p ply to their action, brought nearly two y ears af t er their d aughter’s d eath, because their “discovery
of the injury , within the m ea n i n g o f t h e s tatute, [ could] only be deem ed to have
occurred when t he plaintif f s had reason to kn o w t h a t t h e y had a c ause of action arising f rom [ their d aughter’s] death.” I d

. at 540. T he plaintif

f s claim ed the statute of lim itations was tolled until they were allowed to exam i ne t he t reating psy chiatrist’s

m edical records a nd l e a r ned f rom his n otes that he “had concluded [ their daughter]

was disposed t o s uicide.” Id

. The Calif ornia court h eld: “The events surrounding [ the deceased’s] death were suf f icient to cause plaintif

f s to inquire into the circum s t ances about which t h e y n ow com plain. They were f

ree to b ring suit im m e diately , pursue discovery and avail them selves of the opportun i t y to exam i ne def endant’s r ecords.
It f ollows that the one-y ear period

. . . was not tolled by def endant’s f ailure to disclose
his prof essional opinion that [ the deceased] was suic i d a l l y disposed and that
6plaintif

f s’ action w as barred b y their f ailure t o bring suit within one y ear af ter [ their daughter’s] death.” Id

. at 541. W e agree wi t h t h e reasoning articulated by the
Calif o rnia court construing the application of the discovery rule. [ ¶14] Here, M cCarthy was on notice that the psy chological treatm ent her daughter

was receiving f

rom Dr. Getz h a d not gone as p lanned the date her daughter com m itted
suicide. Notes f

rom McCarthy ’s d aughter’s visits with Dr. Getz reveal McCarthy was

aware of her daughter’s m ental health treatm ent and nothing in the record indicates
otherwise. T he plan f

or treatm ent was to t r e a t M c C arthy ’s daughter’s anxiety and depression and associated s y m ptom s. Her r esulting d eath by suicide is an objectively
obvious f act that t he goal o f t r e a t me nt had not been achieved as planned. D r

. Getz correctly notes t hat McCarthy has not asserted any additional occurrences f ollowing
her daughter’s death causing h er to b e put o n notice of a potential claim ; “the only

occurrences are s u

bjective: that McCarthy becam e c onvinced t hat she had a potential
claim a gainst Dr. G etz.” Construing all inf erences in f

avor o f McCarthy , n o d ispute
exists that s he discovered her d aughter’s i njury on Septem ber 23, 2015, and that she

com m enced this action on Novem ber 1 4, 2017. See N.D.R.Civ.P. 3

. Apply ing
N.D.R.Civ.P. 6, the statute of lim itations d i d n o t begin to run until Septem ber 24, 2015, and theref

o re initiation of the a c t i on based on service upon Dr. Getz on Novem ber 14, 2017, was barred by the s t a t ute of lim itations. T he district court did not err in granting Dr. Getz’s m otion f o r sum m ary

judgm ent.

IV [ ¶15] We n eed not address Dr. Getz’s cross-appeal b ecause our decision on t h e statute of lim itations is dispositive.

7V

[ ¶16] W e af

f irm the district court’s judgm ent. [ ¶17] Lisa Fair McEvers Daniel J. Crothers Jerod E. Tuf

te Jon J. Jensen Gerald W . VandeW alle, C.J.

8