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Cartwright v. Tong

Supreme Court of North Dakota

June 14, 2017

Roxane Cartwright and Tim Cartwright, Plaintiffs and Appellants
v.
Beverly Tong, M.D., and Great Plains Women's Health Center, P.C., Defendants and Appellees

         Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

          Nathan D. Severson, Fargo ND, for plaintiffs and appellants.

          Brenda L. Blazer (argued) and Vanessa L. Lystad (on brief), Bismarck, ND, for defendants and appellees.

          OPINION

          Crothers, Justice.

         [¶ 1] Roxane and Tim Cartwright appeal from a district court order and judgment dismissing their complaint without prejudice. The Cartwrights argue the district court erred in dismissing their complaint because the "obvious occurrence" and "wrong organ" exceptions to N.D.C.C. § 28-01-46 apply to their claim. We affirm the district court's order and judgment.

         I

         [¶ 2] On May 8, 2014 the Cartwrights sued Dr. Beverly Tong and Great Plains Women's Health Center alleging professional negligence stemming from a medical procedure performed following a caesarean section. The Cartwrights alleged in their complaint:

"IV.
On May 7, 2012, Plaintiff, Roxane Cartwright, authorized and consented to a 'Caesarean delivery with tubal ligation.'
V.
On May 16, 2012, Plaintiff, Roxane Cartwright, under the care of Defendant Tong, underwent a Caesarean section. Thereafter, Defendant Tong performed a salpingectomy, removing Roxane Cartwright's fallopian tubes, rather than performing a tubal ligation, as Roxane Cartwright had consented to.
VI.
The salpingectomy performed by Dr. Tong was done without Plaintiffs' informed consent.
VII.
As a proximate result of the negligence of Defendant Tong, Plaintiff now is permanently sterilized and no longer able to bear children, nor does she have the ability to reverse the procedure in order to bear children, as she would have had, if a tubal ligation had been performed."

         [¶ 3] According to the Cartwrights, Roxane Cartwright consented to have Tong perform a "Caesarean section with tubal ligation, " in which her fallopian tubes would be tied to prevent future pregnancies. Roxane Cartwright alleges Tong mentioned a procedure called a "bilateral salpingectomy, " which would remove Roxane Cartwright's fallopian tubes. According to Roxane Cartwright she told Tong she did not want her fallopian tubes removed and did not consent to the bilateral salpingectomy. Following the caesarean section Tong performed a bilateral salpingectomy, removing the fallopian tubes. Roxane Cartwright first discovered Tong removed her fallopian tubes at a February 24, 2014 appointment to discuss the reversal of the tubal ligation because it was taking longer than expected for the couple to adopt a child. Tong told Roxane Cartwright she could not get pregnant because she removed her fallopian tubes following the caesarean section.

         [¶ 4] On April 27, 2016 Tong and Great Plains filed a motion to dismiss, arguing the Cartwrights failed to disclose an expert witness within three months of commencing their lawsuit as required under N.D.C.C. § 28-01-46. Alternatively, Tong and Great Plains moved for summary judgment. After a hearing the district court entered a judgment on June 27, 2016, dismissing the Cartwrights' complaint without prejudice because they failed to file an affidavit containing an admissible expert opinion supporting a prima facie case of medical malpractice within the statutory timeline. The Cartwrights appeal.

         II

         [¶ 5] A dismissal without prejudice generally is not appealable. Scheer v. Altru Health System, 2007 ND 104, ¶ 9, 734 N.W.2d 778. "However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen ...


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