                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


      Appeal from the District Court of Richland 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 cross-
appellant.
                                 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
                                           1
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.

                                           2
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 injury was
       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.

                                           3
         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 McCarthy would 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

                                             4
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 day McCarthy was 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 from an 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
                                          5
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
inform plaintiffs 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 they were 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 plaintiffs to 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
                                             6
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 McCarthy was
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.




                                           7
                                        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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