Opinion
Civil No. A4-02-47
December 26, 2002
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
On November 4, 2002, the defendant, Margaret C. Nordell, M.D., filed a motion to dismiss this medical malpractice action pursuant to Section 28-01-46 of the North Dakota Century Code. The plaintiff, Carmen Halvorson, served a response to the motion to dismiss on November 29, 2002, with attached exhibits. Defendant Nordell subsequently filed a reply brief in support of the motion on December 9, 2002. The parties have not requested oral argument on the motion.
Under North Dakota law, a plaintiff who commences a medical malpractice action must file an expert affidavit with the Court within three (3) months of the commencement of a lawsuit. Section 28-01-46, N.D.C.C. The statute provides in relevant part as follows:
Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases. Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff. The expert's affidavit must identify the name and business address of the expert, indicate the expert's field of expertise, and contain a brief summary of the basis for the expert's opinion. This section does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient's body, or other obvious occurrence.
The plaintiff, Carmen Halvorson, commenced this action on April 10, 2002. Under North Dakota law, Halvorson was required to obtain "an admissible expert opinion" to support the allegations of professional negligence against Dr. Nordell, by July 10, 2002, or at such later date as set by the Court for good cause shown by the plaintiff.
In Weasel v. St. Alexius Medical Center, 230 F.3d 348 (8th Cir. 2000), the Eighth Circuit Court of Appeals was presented with a case of a similar nature arising out of a medical malpractice action in North Dakota. In Weasel, the Eighth Circuit recognized that under North Dakota law, a plaintiff who commences a medical malpractice action must file an affidavit with the Court within three (3) months of filing the suit unless good cause is shown. 230 F.3d 348, 350. The Eighth Circuit held that the statute was designed to minimize frivolous claims against physicians by avoiding the necessity of a trial or action based upon professional negligence unless the plaintiff obtains an expert opinion to substantiate the allegations of negligence. 230 F.3d 348, 351. Section 28-01-46 does not require that a plaintiff establish a prima facie case of professional negligence in an accelerated time frame. Instead, the plain wording of the statute simply dictates that "a plaintiff must merely make a proffer of admissible expert opinion within three months of filing the suit or at a later time as granted by the court." 230 F.3d 348, 351.
In this case, the 3-month period ran on July 10, 2002. There is no dispute that the plaintiff did not file an affidavit within the 3-month period as provided by the statute. There is also no dispute that the plaintiff did not seek to extend the 3-month deadline prior to the expiration of the limitations period. Nevertheless, the Court concludes that "good cause" has been shown by the plaintiff and that the proffer of the Affidavit of Janice M. Bury, M.D., is sufficient for purposes of compliance with Section 28-01-46 at this stage of the litigation.
The Court recognizes that the Affidavit of Dr. Janice M. Bury does not establish a prima facie case of professional negligence against the defendant, nor would the affidavit be "admissible" at trial. As a practical matter, no affidavit submitted for purposes of compliance with Section 28-01-46 would ever be "admissible" evidence at trial. Neither the Affidavit of Dr. Janice Bury, nor the Stipulation entered into between the Board of Medical Examiners and Dr. Nordell, would be "admissible" at trial, but such evidence is admissible for purposes of compliance with Section 28-01-46. The term "admissible expert opinion" for purposes of Section 28-01-46 is somewhat of a misnomer. Nevertheless, the Affidavit of Dr. Bury is sufficient at this stage to comply with the statute and fulfill the objectives of Section 28-01-46 which was to minimize frivolous claims against physicians and avoid the necessity of a needless trial. It will still be incumbent upon the plaintiff to retain and timely disclose an expert witness for trial in accordance with any pretrial orders of the Court. The Affidavit of Dr. Bury fulfills the objectives of Section 28-01-46 but it does not fulfill the expert witness disclosure requirements of Rule 26 or this Court.
The Eighth Circuit Court of Appeals has recognized that there should be "greater leniency for the plaintiff who is subject to a motion for dismissal" pursuant to Section 28-01-46. The plain language of Section 28-01-46 allows for an extension of time if a plaintiff shows "good cause." The Court concludes as a matter of law that the plaintiff has shown that "good cause" exists in this case for a later disclosure date as demonstrated by the Affidavit of Dr. Janice Bury and the stipulation and disciplinary actions taken by the North Dakota State Board of Medical Examiners relative to defendant Dr. Nordell.
IT IS ORDERED that the Defendant's Motion to Dismiss the medical negligence claims is denied. Under North Dakota law, a plaintiff who asserts a medical malpractice claim must file an expert affidavit with the Court within three (3) months of filing the suit unless "good cause" is shown by the plaintiff. The Court concludes, as a matter of law, that good cause has been demonstrated for a later disclosure date and that the claims of the plaintiff are not frivolous.