Van Klootwyk v. Baptist Home, Inc. (665 N.W.2D 679)

north-dakota-nursing-home-abuse-neglect-300x208Articles: North Dakota

Van Klootwyk v. Baptist Home, Inc. (665 N.W.2D 679)

Van Klootwyk v. Baptist Home, Inc. (665 N.W.2D 679)
Plaintiff (Appellee) – Michelle Van Klootwyk, survivor of Gladys Wilhelm (Deceased)
Defendant (Appellant) – Baptist Home, Inc.
Supreme Court of North Dakota (2003)

In November 2000, Michelle Van Klootwyk, Gladys’ daughter, representing Gladys’ surviving children commenced a wrongful death action against Baptist Home alleging that the nursing home breached their duty of reasonable care negligently injuring Gladys and ultimately causing her death.

In May, 2002, Baptist Home moved for summary judgment of dismissal. Baptist Home based their motion on Van Klootwyk’s failure to comply with the three- month limit for obtaining admissible supporting expert opinion pursuant to N.D.C.C. § 28-01-46. The trial court granted Baptist Home’s motion. Van Klootwyk appealed.


Gladys Wilhelm was admitted to the Baptist Home nursing facility in June 1998. At that time she was 79 years old and had been diagnosed with Parkinson’s disease and Shy-Drager’s Syndrome. She also suffered from chronic constipation.

Gladys’ personal physician was the medical director of the Baptist Home and had issued standing orders for her treatment. On November 19, 1999, the charge nurse at Baptist Home ordered two certified nurse assistants to administer a Fleet enema in order to relieve Gladys of her constipation. After administering the enema, the nurses noticed blood in the toilet. The charge nurse was called and she determined that digital extraction of the stool was required and she performed the procedure.

A nurse checking on Gladys later that evening noticed a fissure on her anal sphincter and called her physician. He prescribed medication. On November 20, after Gladys continued to experience rectal bleeding, she was examined by her physician. He issued new orders for her care. On November 22, 1999, Gladys was examined by another physician who diagnosed her with gangrene infection in her rectal area. Physicians agreed that Gladys would not survive surgery to remove the gangrene infected area. She was then given hospice care and passed away on November 30, 1999.


The trial court granted Baptist Home’s motion for summary judgment, dismissing the action. They found that Van Klootwyk was required to comply with N.D.C.C. § 28-01-46, requiring a plaintiff to provide admissible expert opinion within three months for “any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence.”


Did the trial court err in finding Baptist Home qualified as a “hospital” for the purposes of applying N.D.C.C § 28-01-46?

The Supreme Court ruled that North Dakota law differentiates between hospitals and nursing homes.

They noted that the law defines “Hospital” as “an institution with an organized medical staff, permanent facilities including inpatient beds, medical services, including physician services and continuous nursing services, to provide diagnosis and treatment for medical conditions, both surgical and nonsurgical, and services including rehabilitation services.”

“Nursing Home,” on the other hand, is defined as “an institution in which nursing care is rendered for compensation to two or more persons not related to the operator by blood or marriage, serving persons suffering from prolonged physical or mental illness or defect, or persons recovering from some injury or disease.”

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Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa
After I read Jonathan’s Nursing Home Blog, I decided to hire him to look into my wife’s treatment at a local nursing home. Jonathan did a great job explaining the process and the laws that apply to nursing homes. I immediately felt at ease and was glad to have him on my side. Though the lawsuit process was at times frustrating, Jonathan reassured me, particularly at my deposition. I really felt like Jonathan cared about my wife’s best interests, and I think that came across to the lawyers for the nursing home. Eric
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