Roxane Cartwright and Tim Cartwright, Plaintiffs and Appellants
Beverly Tong, M.D., and Great Plains Women's Health Center, P.C., Defendants and Appellees
from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
D. Severson, Fargo ND, for plaintiffs and appellants.
L. Blazer (argued) and Vanessa L. Lystad (on brief),
Bismarck, ND, for defendants and appellees.
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.
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
On May 7, 2012, Plaintiff, Roxane Cartwright, authorized and
consented to a 'Caesarean delivery with tubal
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.
The salpingectomy performed by Dr. Tong was done without
Plaintiffs' informed consent.
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
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 ...