File Photo Trinity Hospital, on which hepatitis litigation eventually focused, had the last case against it dismissed by the N.D. Supreme Court Monday.

A plaintiff whose late wife had been infected with Hepatitis C has lost appeal to keep alive his lawsuit against Trinity Health

In a unanimous decision, the N.D. Supreme Court Tuesday ruled Monday the case was correctly dismissed in district court.

Mark Krebsbach, who has been represented by the Bakke Grinolds Wiederholt firm in Bismarck, asked the court to reverse the judgment against him in North Central District Court and order a trial. Court-appointed Master Karen Klein dismissed the case on the grounds the two-year statute of limitations had expired by the time he filed his complaint in September 2016. District Judge Todd Cresap upheld Klein’s order.

Krebsbach had challenged whether the phlebotomist through which he alleges the infection transfer occurred is considered a professional for whom a two-year medical malpractice statute of limitations exists. He challenged whether he knew he had a claim against Trinity as far back as 2014, when the focus of blame for a hepatitis outbreak had been on ManorCare Health Services.

Krebsbach also appealed the dismissal of his claim for fraud/deceit and unlawful sales and advertising by Trinity, which is based on allegations that Trinity failed to notify patients of problems with its phlebotomist.

The Supreme Court sided with the district court in concluding the phlebotomist, while not meeting the definition of a medical professional, was part of a professional continuum of care and as such, those duties fall under the statute of limitations. The court also found Krebsbach failed to establish Trinity had a duty to disclose information about the phlebotomist or drug diversion that would support the argument for fraud/deceit. It determined Krebsbach should have known he had a claim within the timeframe for bringing a lawsuit.

In a statement through his attorney, Krebsbach said he respectfully disagrees with the analysis of the Supreme Court in affirming the dismissal of his lawsuit. He believes the evidence was overwhelming, that his wife, Krystal, had contracted Hepatitis C due to the actions and negligence of Trinity Hospital, including the breaches of infection control by Trinity’s phlebotomist.

The statement issued Wednesday said, “Krebsbach does not believe the courts involved in this case followed the applicable legal standard, which requires a court to assume as true all of his factual allegations and to view the evidence in the light most favorable to him. Nor does Krebsbach believe Trinity’s Employee A, a phlebotomist with essentially no training and no certification, is a ‘professional’ as defined by North Dakota law. Krebsbach is disappointed the North Dakota Supreme Court never allowed a jury to address the evidence in this case.”

Trinity Health issued a statement that it is “pleased that the North Dakota Supreme Court, by a 5-0 unanimous vote, agreed with the District Court decision that all of the claims made by the Plaintiff against Trinity Health were properly dismissed.”

The Krebsbach lawsuit was the last remaining legal action regarding a Hepatitis C outbreak uncovered in Minot in 2013. Victims and families filed a lawsuit against ManorCare Health Services in federal court in April 2014. ManorCare also sued Trinity. Victims filed a case in state court against Trinity in February 2015. They dropped their claims against ManorCare in June 2016 to focus on Trinity.

The 21 plaintiffs, other than Krebsbach, filed a motion to dismiss their case Nov. 29, 2016, in North Central District Court after a confidential settlement with Trinity was reached.

ManorCare and Trinity eventually reached a settlement, and the court dismissed that case in February 2019. Public health officials had found at least 52 patients were infected with a genetically similar strain of Hepatitis C, and most spent time at ManorCare’s facility in Minot.

The HCR ManorCare facility in Minot came under new management in 2015 with acquisition by North Shore Health Care. It now operates as Minot Health and Rehab.