The opinion of the court was delivered by: Karen K. Klein United States Magistrate Judge
Plaintiff Yolanda H. Allen ("Allen") has brought suit against the United States of America ("United States") for medical malpractice pursuant to the Federal Torts Claims Act. Allen alleges the United States committed medical malpractice by failing to screen blood received by the plaintiff during blood transfusions, and by failing to timely diagnose and treat her for the Hepatitis C virus. Each party seeks summary judgment in its favor. The court rules the United States is entitled to judgment as a matter of law. Allen has failed to provide the necessary expert opinion required to prove essential elements of her medical malpractice claim. Consequently, defendant United States of America's Motion for Summary Judgment (Doc. # 54) is GRANTED, and plaintiff Yolanda H. Allen's Motion for Summary Judgment (Doc. # 10) is DENIED.
Plaintiff has also filed Motions for Entry of Default (Doc. # 62) and Default Judgment (Doc. # 63), and defendant has filed a Motion in Limine (Doc. # 64). Since the United States has appeared and defended against plaintiff's claims, both of plaintiff's motions are DENIED. Since summary judgment is granted in favor of the United States, its Motion in Limine is MOOT.
Yolanda Allen received blood transfusions comprised of four units of blood, a unit of plasma, and a unit of platelets at the Grand Forks Air Force Base Hospital in December 1996 and in November 1997. The hospital obtained the blood from the Dak Minn Blood Bank. Between November 1997 and March 2005 Allen made nearly twenty visits to the Grand Forks Air Force Base medical facility for follow-up appointments, routine exams, and with complaints of headaches, fatigue, and various aches and pains. In 2005 Allen attempted to obtain life insurance, at which time her blood was tested and she was diagnosed with the Hepatitis C virus. Allen now asserts the United States is liable for medical malpractice for failing to screen the blood she received and for failing to timely diagnose and treat her for the Hepatitis C virus. She also alleges in her summary judgment motion, though not in her complaint, that the United States failed to obtain her informed consent for the blood transfusions.
Standard Summary judgment is appropriate if there is not a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment . . . against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. If the moving party has supported its motion for summary judgment, the nonmoving party has an affirmative burden placed on it to go beyond the pleadings and show a genuine triable issue of fact. Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992). However, the court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)(citation omitted).
Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . .." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992)(citation omitted). The issue is whether "the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995).
I. Summary Judgment Motions
A. Compliance with Section 28-01-46
Defendant United States contends it is entitled to summary judgment because plaintiff Allen has not met her burden of establishing the elements of her case, and because she failed to provide expert support for her malpractice claim as required by North Dakota statute. North Dakota Century Code § 28-01-46 provides that an action for professional negligence must be dismissed if it is unsupported by an admissible expert opinion:
Any action for injury or death alleging professional negligence by a physician, nurse, hospital, or nursing, basic, or assisted living facility licensed by this state or by any other health care organization, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit 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 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.
N.D. Cent. Code 28-01-46 (1997). The purpose of the statute is to dispose of frivolous medical malpractice cases at an early stage of the proceedings. Greenwood v. Paracelsus Health Care Corp. of N.D. Inc. Corp., 622 N.W.2d 195, 199 (N.D. 2001)(citations omitted). The North Dakota Supreme Court has described the effect of the statute as akin to a statute of limitations requiring expert support of a medical malpractice ...