               Filed 01/27/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 24

Mark Krebsbach individually and as the
Personal Representative of the Estate of
Krystal Krebsbach as the surviving husband of
Krystal Krebsbach,                                 Plaintiff and Appellant
      and
ManorCare of Minot, ND, LLC
d/b/a ManorCare Health Services, and
HCR III Healthcare, LLC,                                        Plaintiffs
      v.
Trinity Hospitals, Inc. and
Trinity Health, Inc.,                           Defendants and Appellees



                                No. 20190096

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Todd L. Cresap, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Randall J. Bakke (argued) and Bradley N. Wiederholt (appeared), Bismarck,
ND, for plaintiff and appellant Mark Kresbach.

Matt A. Paulson (argued) and Randall S. Hanson (appeared), Grand Forks,
ND, for defendants and appellees.
                Krebsbach, et al. v. Trinity Hospitals, Inc.
                              No. 20190096

Crothers, Justice.

[¶1] Mark Krebsbach appeals a district court judgment dismissing his
lawsuit against Trinity Hospital relating to medical services provided to his
wife. 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. We affirm.

                                        I

[¶2] Krebsbach’s wife, Krystal, died in June 2016. In September 2013 she was
diagnosed with hepatitis C while a patient at the ManorCare nursing home in
Minot. Krystal Krebsbach’s diagnosis occurred during a hepatitis C outbreak
in the Minot area.

[¶3] 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.

[¶4] Krebsbach’s negligence claims relating to Trinity’s phlebotomy services
and primarily focused on a phlebotomist referred to as Employee A. Krebsbach
claimed Employee A had a history of needle reuse and contributed to the



                                        1
hepatitis C outbreak because she drew blood from all of the patients infected
with the outbreak strain of hepatitis C. Krebsbach asserted Trinity’s failure to
properly train, supervise and discipline Employee A caused injuries and
damages to him and his wife.

[¶5] Trinity moved to dismiss Krebsbach’s complaint, arguing he failed to
allege any facts suggesting Trinity was required to disclose to Krystal
Krebsbach alleged complaints about Trinity’s phlebotomy services. A special
master appointed by the district court under N.D.R.Civ.P. 53 dismissed
Krebsbach’s fraud, deceit and unlawful sales and advertising practices claims
because Krebsbach did not allege any facts requiring a duty of disclosure by
Trinity.

[¶6] Trinity moved for summary judgment, seeking the dismissal of
Krebsbach’s negligence claims. The special master granted the motion,
concluding the two-year statute of limitations for medical malpractice under
N.D.C.C. § 28-01-18(3) applied to Krebsbach’s negligence claims. The special
master concluded Krebsbach’s claims were barred because he sued more than
two years after information was made available to him establishing Trinity’s
possible negligence. After objection by Krebsbach, the district court agreed
with the special master’s decisions and entered a judgment dismissing
Krebsbach’s lawsuit.

                                       II

[¶7] This Court’s standard of review for summary judgments is well
established:

      “Summary judgment is a procedural device for the prompt
      resolution of a controversy on the merits without a trial if there
      are no genuine issues of material fact or inferences that can
      reasonably be drawn from undisputed facts, or if the only issues to
      be resolved are questions of law. A party moving for summary
      judgment has the burden of showing there are no genuine issues
      of material fact and the moving party is entitled to judgment as a
      matter of law. In determining whether summary judgment was
      appropriately granted, we must view the evidence in the light most


                                       2
      favorable to the party opposing the motion, and that party will be
      given the benefit of all favorable inferences which can reasonably
      be drawn from the record. On appeal, this Court decides whether
      the information available to the district court precluded the
      existence of a genuine issue of material fact and entitled the
      moving party to judgment as a matter of law. Whether the district
      court properly granted summary judgment is a question of law
      which we review de novo on the entire record.”

Pennington v. Cont’l Res., Inc., 2019 ND 228, ¶ 6, 932 N.W.2d 897 (quoting
Horob v. Zavanna, LLC, 2016 ND 168, ¶ 8, 883 N.W.2d 855).

[¶8] Motions for judgment on the pleadings are governed by N.D.R.Civ.P.
12(c). In reviewing a district court’s dismissal of a complaint after a judgment
on the pleadings under N.D.R.Civ.P. 12(c), we have said:

      “[W]e recognize that a complaint should not be dismissed unless it
      appears beyond doubt that the plaintiff can prove no set of facts in
      support of his claim which would entitle him to relief. The court’s
      inquiry is directed to whether or not the allegations constitute a
      statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets
      forth the requirements for pleading a claim and calls for a short
      and plain statement of the claim showing that the pleader is
      entitled to relief. The complaint is to be construed in the light most
      favorable to the plaintiff, and the allegations of the complaint are
      taken as true. The motion for dismissal of the complaint should be
      granted only if it is disclosed with certainty the impossibility of
      proving a claim upon which relief can be granted.”

Nelson v. McAlester Fuel Co., 2017 ND 49, ¶ 20, 891 N.W.2d 126 (quoting
Kouba v. State, 2004 ND 186, ¶ 5, 687 N.W.2d 466). We review a court’s
decision to grant judgment on the pleadings de novo. Nelson, at ¶ 20.

                                       III

[¶9] Krebsbach argues the special master and district court erred in
concluding the two-year statute of limitations for medical malpractice applied
to his negligence claims against Trinity. He also claims the special master and




                                        3
district court wrongfully concluded he was on notice of Trinity’s possible
negligence more than two years before he sued Trinity.

                                       A

[¶10] Under N.D.C.C. § 28-01-18(3), a malpractice action “must be commenced
within two years after the claim for relief has accrued.” This Court has defined
“malpractice” as “professional negligence.” Jilek v. Berger Elec., Inc., 441
N.W.2d 660, 661 (N.D. 1989).

      “Malpractice is the failure of one rendering professional services to
      exercise the degree of skill and learning commonly applied under
      all the circumstances in the community by the average prudent
      reputable member of the profession, which results in injury, loss,
      or damage to the recipient of those services or to those entitled to
      rely upon them.”

Beaudoin v. S. Texas Blood & Tissue Ctr., 2004 ND 49, ¶ 8, 676 N.W.2d 103
(citing Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D. 1981)).

[¶11] Krebsbach claims the six-year statute of limitations under N.D.C.C. §
28-01-16 applies to his negligence claims against Trinity. He asserts Trinity
was negligent in its selection, training and supervision of Employee A. He
contends Employee A’s substandard phlebotomy practices and Trinity’s failure
to have proper drug diversion protocol caused Krystal Krebsbach’s hepatitis C.

[¶12] The actual nature of a plaintiff’s action determines what statute of
limitations applies. Sime v. Tvenge Assocs. Architects & Planners, P.C., 488
N.W.2d 606, 609 (N.D. 1992). In a malpractice action, the malpractice statute
of limitations controls over statutes of limitations applicable to contract or
other tort actions. Beaudoin, 2004 ND 49, ¶ 9, 676 N.W.2d 103. A plaintiff
“cannot escape the confines of the statute of limitations for malpractice actions
by simply couching the complaint in terms of ordinary negligence.” Sime, at
609. “The distinction between ordinary negligence and malpractice turns on
whether the acts or omissions complained of involve a matter of . . . science or
art requiring special skills not ordinarily possessed by lay persons or whether



                                       4
the conduct complained of can instead be assessed on the basis of common
everyday experience.” Beaudoin, at ¶ 9 (quoting Sime, at 609).

[¶13] Krebsbach’s complaint alleged Trinity caused his wife to contract
hepatitis C because Trinity and its staff failed to meet the applicable standards
of care:

            “Trinity owes a duty to its current and former patients,
      including but not limited to Krystal Krebsbach, to provide medical
      treatment and services that meet the applicable standard of care.
      This duty includes the obligation to protect these patients from
      diseases like hepatitis C by exercising reasonable care under the
      circumstances, including using proper infection control procedures
      and preventing drug diversion, and by following all applicable
      laws, rules, regulations, industry standards, and professional
      guidelines.”

Krebsbach further alleged Trinity breached its duty to his wife, and the breach
caused her to contract hepatitis C.

[¶14] Krebsbach relies on Jilek to support his argument that the six-year
statute of limitations for general negligence under N.D.C.C. § 28-01-16 should
apply. In Jilek, 441 N.W.2d at 662-63, this Court decided whether negligence
by an electrician was governed by the two-year malpractice statute of
limitations or by the general six-year statute. This Court distinguished
between a profession and a trade, and “conclude[d] that the malpractice statute
of limitations applies to one practicing a profession, not a trade. Because an
electrician practices a trade, the two-year malpractice statute of limitations
does not apply.” Id. at 663. This Court “[held] that, as a general rule, a
profession is an occupation that requires a college degree in the specific field.”
Id. In stating the general rule, we recognized that “there may be professions or
individual members of a profession that cannot be so neatly pigeonholed.” Id.

[¶15] The special master concluded the two-year statute of limitations for
claims involving medical malpractice applied to Krebsbach’s negligence claims,
explaining:



                                        5
             “Although phlebotomists need no particular education,
      certification or training to perform their work in North Dakota, the
      Special Master finds their work must be considered in light of the
      context in which it is performed. Unlike an electrician, a
      phlebotomist’s work is not a stand-alone service. A phlebotomist’s
      blood draw is not the entirety of the service provided to the patient
      by the phlebotomist’s employer. Blood was drawn from Krystal
      Krebsbach by a Trinity phlebotomist for the larger purpose of
      being screened or tested in a laboratory for interpretation and
      ultimate diagnosis by a physician or other highly-educated medical
      professional. It is part of a continuum of service provided by the
      hospital or other medical facility for the purpose of diagnosing and
      treating a patient’s medical condition. The work of the
      phlebotomist cannot and should not be considered in isolation.
      Considered in this context, it is apparent that phlebotomy, at least
      in the context of this case, should not be considered a stand-alone
      trade, akin to an electrician, but rather an integral part of the
      practice of the medical profession.”

The district court agreed with the special master’s analysis and conclusions.

[¶16] Krebsbach contends a phlebotomist is not a member of a profession that
requires advanced learning. He argues Employee A did not have a college
degree or other advanced training, was not required to be licensed, received
little on-the-job training and was not supervised by a professional when she
performed the phlebotomy services on Krystal Krebsbach.

[¶17] Krebsbach seeks a strict application of Jilek as it relates to the
distinction between a trade and a profession. Although this Court delineated
between trades and professions, we noted that the statute of limitations for
malpractice applied to the profession of medicine. Jilek, 441 N.W.2d at 661.
This Court also recognized that “there may be professions or individual
members of a profession that cannot be so neatly pigeonholed.” Id. at 663.

[¶18] This Court has not limited medical malpractice actions exclusively to
physicians with advanced learning. See Greenwood v. Paracelsus Health Care
Corp. of N.D., Inc., 2001 ND 28, ¶¶ 21-22, 622 N.W.2d 195 (plaintiff’s failure
to establish the standard of care for a scrub nurse employed by defendant


                                       6
hospital justified judgment as a matter of law against plaintiff in action against
the hospital); Zettel v. Licht, 518 N.W.2d 214, 215-16 (N.D. 1994) (two-year
malpractice statute of limitations barred plaintiff’s action against a medical
technician and his employer clinic); Beaudoin, 2004 ND 49, ¶¶ 2, 8-10, 676
N.W.2d 103 (malpractice statute of limitations governed action against
company that harvested, preserved and delivered body parts from cadavers for
use in surgeries).

[¶19] Here, the actual nature of Krebsbach’s action is Trinity’s negligent
provision of medical services to his wife. As the special master concluded, the
question of whether Krystal Krebsbach contracted hepatitis C due to Trinity’s
alleged substandard phlebotomy services and failure to have proper drug
diversion protocol involves “science or art requiring special skills not ordinarily
possessed by lay persons.” Beaudoin, 2004 ND 49, ¶ 9, 676 N.W.2d 103.
Krebsbach’s negligence claims are governed by the two-year statute of
limitations for malpractice under N.D.C.C. § 28-01-18(3).

                                        B

[¶20] Krebsbach argues 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.

[¶21] In Zettel, 518 N.W.2d at 215 (internal citations omitted), this Court
explained that a plaintiff must bring a medical malpractice action within two
years of discovering the alleged malpractice:

             “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. 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. The plaintiff’s knowledge is ordinarily a fact question which
      is inappropriate for summary judgment, but the issue becomes one


                                        7
     of law if the evidence is such that reasonable minds could draw but
     one conclusion.”

[¶22] The special master concluded there was no genuine issue of material fact
about when Krebsbach discovered Trinity’s possible negligence. The special
master concluded Krebsbach had information available to him or with
reasonable diligence could have been available to him before September 21,
2014, two years before he moved to intervene in the lawsuit against Trinity.

[¶23] The special master’s order discussed the information that was available
or with reasonable diligence could have been available to Krebsbach before
September 21, 2014. The following information noted Trinity’s possible
involvement in the hepatitis C outbreak before September 21, 2014:

     (1) North Dakota Department of Health (NDDOH) news release
         dated December 27, 2013, stating “having Hepatitis C may be
         associated with receipt of: (1) podiatry and phlebotomy (blood
         draw) services through contractual agreements with Trinity
         Health.”

     (2) Minot Daily News article dated December 28, 2013, discussed
         the NDDOH press release.

     (3) Letter dated February 28, 2014, from attorneys stating
         “[p]reliminary analysis suggested that the infection might have
         been associated with nail care services at ManorCare or blood
         services through Trinity Health, but further investigation has
         not confirmed this.” The letter also stated, “The people in Minot
         who have been diagnosed with Hepatitis C may have
         substantial personal injury claims and be entitled to
         substantial damage awards. If you have a relative, friend or
         loved one who was infected with Hepatitis C we would be glad
         to visit with them and possibly represent them if we feel there
         is a viable case.”

     (4) Minot Daily News article dated July 2014, stating ManorCare
         blamed Trinity for the spread of hepatitis C.




                                      8
      (5) KX News article dated June 28, 2014, discussing ManorCare’s
          suit against Trinity.

      (6) Associated Press article dated July 19, 2014, discussing
          Trinity’s denial of ManorCare’s accusations against Trinity.

[¶24] Krebsbach testified in his deposition that he was aware of the NDDOH
investigation, but he did not read the report. He testified his brother used to
work at the Minot Daily News and informed him of the newspaper articles. He
testified he was aware people were organizing a class action lawsuit in the
spring of 2014, but he did not get involved. He testified that he received
communications from attorneys but he decided to focus on his wife’s health
instead of getting involved in a lawsuit.

[¶25] After reviewing the information available, or with reasonable diligence
could have been available to Krebsbach before September 21, 2014, we agree
with the special master’s conclusion that Krebsbach’s negligence claims were
barred by the statute of limitations. Specifically, after receiving the letter from
the attorneys about a possible personal injury claim, Krebsbach reasonably
should have recognized the need to investigate Trinity’s possible negligence.
The two-year malpractice statute of limitations expired before Krebsbach
moved to intervene on September 21, 2016.

                                        IV

[¶26] Krebsbach asserts the special master and district court erred in
dismissing his claims of fraud, deceit and unlawful sales and advertising
practices against Trinity.

                                        A

[¶27] Krystal Krebsbach did not have a contractual relationship with Trinity;
therefore, Krebsbach’s claims against Trinity are for the tort of deceit. See
Bakke v. Magi-Touch Carpet One Floor & Home, Inc., 2018 ND 273, ¶¶ 19-20,
920 N.W.2d 726. Under N.D.C.C. § 9-10-02, a deceit is defined as:




                                        9
      “1. The suggestion as a fact of that which is not true by one who
      does not believe it to be true;
      2. The assertion as a fact of that which is not true by one who has
      no reasonable ground for believing it to be true;
      3. The suppression of a fact by one who is bound to disclose it, or
      who gives information of other facts which are likely to mislead for
      want of communication of that fact; or
      4. A promise made without any intention of performing.”

“One who willfully deceives another with intent to induce that person to alter
that person’s position to that person’s injury or risk is liable for any damage
which that person thereby suffers.” N.D.C.C. § 9-10-03.

[¶28] Krebsbach’s complaint alleged Trinity suppressed information about
Employee A’s substandard phlebotomy practices and drug diversion occurring
at Trinity. He alleged Trinity’s suppression of information induced him and his
wife to accept phlebotomy services from Trinity and caused damages.

[¶29] Krebsbach’s complaint fails to allege facts establishing Trinity had a
duty to disclose the information about Employee A or drug diversion. In
addition, he does not allege representations made by Trinity or inquiries made
by the Krebsbachs that could give rise to a duty to disclose. The special master
did not err in dismissing Krebsbach’s deceit claim against Trinity under
N.D.R.Civ.P. 12(c).

                                       B

[¶30] The Unlawful Sales or Advertising Practices Act prohibits “any deceptive
act or practice, fraud, false pretense, false promise, or misrepresentation, with
the intent that others rely thereon in connection with the sale or advertisement
of any merchandise.” N.D.C.C. § 51-15-02. Under the Act, “[s]ale means any
charitable solicitation or any sale, offer for sale, or attempt to sell any
merchandise [including services] for any consideration.” N.D.C.C. § 51-15-
01(5). Alleged misrepresentations or omissions not “made in connection with
the sale or advertisement of any merchandise” are not actionable under the
Act. Thimjon Farms P’ship v. First Int’l Bank & Trust, 2013 ND 160, ¶ 26, 837
N.W.2d 327.


                                       10
[¶31] Krebsbach’s complaint fails to allege any misrepresentations by Trinity
in connection with the phlebotomy services performed on Krystal Krebsbach.
The special master properly dismissed Krebsbach’s claim.

                                      V

[¶32] Krebsbach’s remaining arguments are either unnecessary to our decision
or without merit. The judgment is affirmed.

[¶33] Daniel J. Crothers
      Allan Schmalenberger, S.J.
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jon J. Jensen, C.J.




[¶34] The Honorable Allan Schmalenberger, S.J., sitting in place of Tufte, J.,
disqualified.




                                     11
