792 N.W.2d 169
N.D.2010Background
- Plaintiffs B.D.H. sues for medical malpractice against doctors for pregnancy care that allegedly failed to detect Down syndrome; action is framed as wrongful life by the child and wrongful birth by the parents.
- District court granted summary judgment: wrongful life barred by NDCC 32-03-43 and wrongful birth not recognized; alternative: two-year malpractice statute of limitations bars the claim.
- Plaintiffs argue wrongful life not barred by 32-03-43 and wrongful birth recognized under North Dakota law.
- Birth of B.D.H. occurred on April 12, 2007; plaintiff’s summons filed April 9, 2009; served May 5, 2009.
- Court holds: (1) 32-03-43 bars wrongful life claims; (2) even if wrongful birth exists, it is barred by the two-year malpractice statute of limitations; (3) tolling under infancy does not apply to the parents’ wrongful birth claim; (4) action commenced by service beyond two years; consequently, summary judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NDCC 32-03-43 bars wrongful life claims. | Plaintiff argues statute precludes only claims by the person, not by guardians/parents. | Defendants contend statute precludes all wrongful life claims. | Yes; statute precludes wrongful life on behalf of the child. |
| Whether parents may pursue a wrongful birth claim under North Dakota law. | Parents may recover for extraordinary expenses caused by child’s impairments. | ND law does not recognize a wrongful birth claim or tolling applies. | Not recognized; tolling not applicable to parents’ wrongful birth claim. |
| Whether the parents’ wrongful birth claim is timely under the two-year malpractice statute of limitations. | tolling for infancy extends time; accrual at query date; discovery rule not pressed. | Accrual upon notice; filing served more than two years after birth. | Barred; two-year statute applies; service date determines timeliness. |
Key Cases Cited
- Amerada Hess Corp. v. State ex rel. Tax Comm’r, 704 N.W.2d 8 (N.D. 2005) (statutory interpretation and harmonization principles)
- Wheeler v. Gardner, 708 N.W.2d 908 (N.D. 2006) (summary judgment standard and de novo review on statute questions)
- Tibert v. Slominski, 692 N.W.2d 133 (N.D. 2005) (summary judgment/notice principles; interpretation of facts for law)
- Larson v. Norkot Mfg., Inc., 627 N.W.2d 386 (N.D. 2001) (accrual for medical malpractice actions; discovery rule cited)