Opinion
Civil No. A1-03-77
May 21, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE AND DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE EXPERT REPORT
Summary:
The defendant filed a motion for summary judgment in a medical malpractice action on the basis that the plaintiff had not disclosed an expert witness to support her allegations of negligence. The plaintiff then filed a motion for extension of time to file an expert report. The Court found that the plaintiff had failed to show that good cause existed for an extension of the three-month deadline set forth in Section 28-01-46 of the North Dakota Century Code and that this was not the type of malpractice claim that falls within the "obvious occurrence" exception. The Court denied the plaintiff's motion for extension of time to file expert report and granted the defendant's motion for summary judgment dismissing the plaintiff's claims without prejudice.
On March 31, 2004, Defendant United States of America, acting through the Department of Interior, Indian Health Services, ("IHS"), filed a motion for summary judgment in this medical malpractice action on the basis that the Plaintiff had not disclosed an expert witness to support her allegations of negligence. The plaintiff, Katherine Vallee, responded by contending she had been attempting to secure the services of two expert witnesses and admitting she has been unable to obtain an affidavit from either of them. On April 27, 2004, Vallee filed a Motion for Extension of Time to File Expert Report.
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.
Vallee commenced this lawsuit on July 2, 2003. Under North Dakota law, Vallee was required to obtain "an admissible expert opinion" to support the allegations of professional negligence against IHS by October 3, 2003, 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 held 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 Court said 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 of the North Dakota Century Code 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 requires 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 expired on October 3, 2003. It is undisputed that the Plaintiff did not file an expert witness affidavit within the 3-month period. 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. Vallee sought an extension only after IHS filed its motion to dismiss. Vallee asserts she has had a difficult time communicating with one of her proposed experts (Dr. Penny Wilkie) and states that Dr. Wilkie did not return her calls until March 2004. Nevertheless, this does not excuse the delay of nearly seven months (from October 3, 2003 — April 27, 2004) before Vallee sought an extension of the three-month expert disclosure period set forth under North Dakota law. Cf. Weasel v. St. Alexius Medical Center, 230 F.3d 348, 353 (8th Cir. 2000) (finding good cause was not shown when the plaintiffs waited more than seven months after the commencement of suit and sought to extend the deadline only after the defendants moved to dismiss the suit). The Court finds that Vallee has failed to show that good cause exists for an extension of the three-month deadline set forth in Section 28-01-46 of the North Dakota Century Code.
Vallee also contends that Section 28-01-45 of the North Dakota Century Code does not apply to this case because the factual scenario falls into the "obvious occurrence" exception. IHS contends that Vallee's medical records are beyond the understanding of the ordinary layperson. "The `obvious occurrence' exception only applies to cases that are plainly within the knowledge of a layperson. In an `obvious occurrence case, expert testimony is unnecessary precisely because a layperson can find negligence without the benefit of an expert opinion." Larsen v. Zarrett, 498 N.W.2d 191, 195 (N.D. 1993). In her complaint, Vallee alleged that IHS failed to properly diagnose her medical conditions, i.e., radiculopathy, a tumor in her kidney and gallstones. Although this case differs from the statutory examples of leaving a foreign substance within the body or operating on the wrong patient, limb or organ, the Court finds this is not the type of malpractice claim that falls within the "obvious occurrence" exception. The claims of professional negligence alleged by the plaintiff are beyond the understanding of the ordinary layperson. Therefore, an expert witness is necessary to establish the applicable standard of care, a violation of that standard, and a casual relationship between the violation and the harm complained of.
Accordingly, the Court DENIES the Plaintiff's Motion for Extension of Time to File Expert Report (Docket No. 20) and GRANTS the Defendant's Motion for Summary Judgment. (Docket No. 16). The Court orders that the plaintiff's claims be dismissed without prejudice.