## Facts

- Darlyne Rogers arrived at an emergency room in Crosby, North Dakota, with abdominal pain, nausea, and vomiting.
- Imaging indicated pneumonia and a bowel obstruction; Dr. Lane Lee agreed to treat Rogers, and she was transferred to Trinity Hospital in Minot as Lee’s patient.
- Rogers, described as critically ill, was admitted to a regular hospital floor rather than a higher-acuity setting.
- Approximately three and one-half hours later, Rogers began vomiting bodily waste and aspirated it; she later died.
- Rogers’s adult children sued Dr. Lee and Trinity Health under North Dakota’s wrongful death statute, alleging negligence caused their mother’s death.
- The children sought non-economic damages for their own mental and emotional anguish and for loss of their mother’s society, comfort, counsel, companionship, and related relational loss.

## Issues

1. Whether North Dakota’s wrongful death statutes (N.D.C.C. ch. 32-21) allow a decedent’s children to recover non-economic damages, including emotional distress and loss of society/companionship, in a wrongful death action.
2. Whether precedent disallowing a child’s loss-of-parental-consortium claim in a non-fatal personal injury context bars such non-economic damages in a statutory wrongful death action.
3. Whether dismissal was proper where plaintiffs lacked proof of economic damages but sought statutorily available non-economic wrongful death damages.

## Decision

- The North Dakota Supreme Court reversed the judgment of dismissal and remanded.
- The court held that a decedent’s children may seek non-economic damages in a wrongful death action under N.D.C.C. ch. 32-21.
- The court ruled the district court erred by treating the children’s claimed emotional anguish as inseparable from a barred personal-injury consortium claim and by extending non-wrongful-death precedent to defeat wrongful death remedies.
- Because non-economic damages were legally available, the case could not be dismissed solely due to an asserted lack of economic damages.

## Legal Principles

- Wrongful death actions under N.D.C.C. ch. 32-21 are statutory claims belonging to designated survivors/heirs for damages resulting from the death, including non-economic harms such as emotional distress and loss of society and companionship.
- A child’s inability to assert a common-law loss-of-parental-consortium claim arising from a parent’s non-fatal injury does not control damages available in a wrongful death action based on the parent’s death.
- Survival claims (estate-based recovery of damages the decedent could have recovered if living) are distinct from wrongful death claims (survivor-based recovery for death-related losses), and rules limiting one category may not be imported into another without statutory support.

## Conclusion

The court reinstated the wrongful death action, holding that North Dakota law permits a decedent’s children to pursue non-economic damages for their own emotional anguish and relational loss caused by the death, and it reversed dismissal that rested on applying non-fatal personal injury consortium precedent to a wrongful death claim.


Weigel v. Lee, 752 N.W.2d 618 (N.D. 2008)