White v. Altru Health System

20070031 Denise D. White, Plaintiff and Appellant
v.
Altru Health System, A
North Dakota Corporation;
First Care Health Center;
P.R. Health Corporation, a
North Dakota Corporation;
and Jamil R. Tareen, M.D., Defendants and Appellees

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Debbie Gordon Kleven
Nature of Action: Malpractice
Counsel:
Appellant: #Omdahl Law Office
Appellee: Camrud, Maddock, Olson & Larson, Ltd.
Appellant: Shirley Ann Dvorak
Term: 09/2007   Argument: 09/11/2007  10:00am
ND cite: 2008 ND 48
NW cite: 746 N.W.2d 173

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Which amendment (1997 or 2005) of N.D.C.C. 28-01-46 applies to the case at bar?
II.What standard of review applies to the case before the Court?
III.If N.D.C.C. 28-01-46 (1997) applies to the case at bar, does the statute apply to that portion of the Appellant's claim relating to lack of informed consent?
IV.Does N.D.C.C. 28-10-47 (whether the 1997 or 2005 amendment) apply to those portions of the Appellant's claim relating to negligent hiring or maintenance of an professional medical employee by Altru Heal Systems, Inc. whose license to practice medicine is restricted or whether there is an affirmative duty on the part of that physician and/or his employer to advise patients of such a restriction prior to any procedures being performed by that physician; or put another way whether such non-disclosure is negligent retention of or non-restriction of an employee's duties?
V.Does an agreed-upon extension of time between Plaintiff and Defense counsel to extend time beyond the three month window of N.D. C.C. 28-01-46 to answer Defense Interrogatories asking, among other things, for "each expert you have employed or may designate as an expert witness. ." include filing an affidavit pursuant to N.D.C.C. 28-01-46, where the Interrogatories are answered by the Plaintiff prior to the expiration of the greed-upon extension of time and include the opinion and qualifications of Plaintiff's expert witness?
VI.If the agreed-upon extension of time between Plaintiff and Defense counsel to answer the Defense interrogatories referenced in question V above do not extend to or apply to the three month window required in N.D.C.C. 28-01-46, does that extension of time prevent the Defense counsel from invoking the requirements of N.D.C.C. 28-01-46 relating to the three month window to provide expert support pursuant to the theory of equitable estoppel?

Appellee's Statement of the Issues:
I.Whether the District Court properly denied Plaintiff's Motion for Reconsideration of Dismissal and Motion to Vacate Judgment
II.Whether the District Court correctly held that N.D.C.C.  28-01-46 (2005) applies to the case at bar
III.Whether the District Court correctly held that N.D.C.C.  28-01-46 mandates dismissal of Plaintiff's claims
IV.Whether Plaintiff's Complaint includes any claims which are outside the scope of N.D.C.C.  28-01-46

Appellee's Supplemental Brief Issues

I. Whether the Court's decision in Scheer v. Altru Health System, 2007 ND 104, has any impact on this appeal.

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Docket entries:
101/29/2007 NOTICE OF APPEAL: 01/26/2007
201/29/2007 ORDER FOR TRANSCRIPT: 01/26/2007
302/07/2007 RETENTION OF RECORD ON APPEAL: 03/17/2007
402/09/2007 TRANSCRIPT DATED July 5, 2006
502/12/2007 DISK - tra (7-5-06)
602/21/2007 RECORD ON APPEAL (not rec'd - 23 & 62, court reporter steno notes)
703/01/2007 Letter dated February 28, 2007, from Mr. Omdahl regarding appealability
803/21/2007 MOT. EXT/TIME TRANSCRIPT dated 10-31-06(per request from Mr. Omdahl)
903/29/2007 ACTION BY ACTING CHIEF JUSTICE (TRA). Granted: 04/27/2007
1003/21/2007 MOT. EXT/TIME APPELLANT BRIEF
1103/29/2007 ACTION BY ACTING CHIEF JUSTICE (ATB due 30 days after TRA is filed)
1203/30/2007 Supplemental Clerk's Certificate of Record dated 3-29-07(Entry Nos. 70 & 71)
1304/04/2007 Copy of letter from Karen Aamodt to Mr. Omdahl dated 3-30-07 RE: trans. of 10-31-06 hearing)
1404/12/2007 TRANSCRIPT DATED October 31, 2006
1504/16/2007 DISK-tra(10/31/06)
1605/21/2007 Per ltr from Thomas V. Omdahl to Penny Miller dated 5-18-07 there is a stay in Dist Ct.
1705/21/2007 case No. 06-C-1418 pending the resoloution of this appeal.
1805/21/2007 Appellant's Appendix (replaced on 5-25-07)
1905/25/2007 APPELLANT BRIEF (corrected)
2005/25/2007 APPELLANT APPENDIX (replaced ATA filed on 5-21-07)
2105/25/2007 DISK - atb (e-mailed)
2206/20/2007 APPELLEE BRIEF
2306/20/2007 E-FILED BRIEF (AEB)
2406/21/2007 Received $25 surcharge for AEB
2506/26/2007 Copies of AEB received from Central Duplicating
2606/29/2007 REPLY BRIEF of Appellant
2706/29/2007 DISK -ryb (e-mailed)
2807/02/2007 Certificate of Service of RYB on opposing counsel
2908/17/2007 Supplemental Brief of Appellee (e-filed)
3008/17/2007 7 copies of Supplemental Brief of Appellee made
3108/17/2007 E-FILED BRIEF (Supplemental AEB)
3209/11/2007 APPEARANCES: Shirley A. Dvorak; Donna M. Smith, Randall S. Hanson
3309/11/2007 ARGUED: Dvorak; Smith
3409/11/2007 ORAL ARGUMENT WEBCAST
3503/20/2008 DISPOSITION: REVERSED AND REMANDED
3603/20/2008 SPLIT OPINION: Crothers, Daniel John
3703/20/2008 Concur in the result: Sandstrom, Dale V.: CON/RES
3803/20/2008 (Concur): VandeWalle, Gerald W.: CONCUR
3903/20/2008 Costs taxed in favor of the appellant
4003/24/2008 Judgment e-mailed to Parties
4104/16/2008 MANDATE
4204/21/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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