from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
A. Hager, Bismarck, ND, for plaintiff and appellant.
L. Rummel (argued) and Brenda L. Blazer (appeared), Bismarck,
ND, for defendants and appellees.
Nancy Ortega appeals from a district court order granting
summary judgment, dismissing her professional negligence
claim against Sanford Bismarck and Dr. Christie Iverson
without prejudice. We conclude the court erred in applymg
N.D.C.C. § 28-01-46 to grant summary judgment. We
reverse and remand for further proceedings.
In June 2014, Ortega was seen at Sanford Bismarck because of
pain in her upper right abdomen and right flank. Ortega had a
CT scan of her abdomen and pelvic area, which revealed aright
ovarian dermoid tumor After Ortega was referred, Dr. Iverson
performed surgery on her in August 2014, to remove her left
ovary. The surgery included a hysterectomy, bilateral
salpingectomy, left oophorectomy, and lysis of adhesions. In
October 2014, Dr. Iverson performed a second surgery on
Ortega to remove her right ovary.
In August 2016, Ortega commenced this action against Sanford
and Dr. Iverson, alleging claims for professional negligence.
She alleges that while she presented for surgery in August
2014 to have her right ovary removed due to a dermoid tumor,
Dr. Iverson negligently removed her left ovary. She alleges
the defendants' acts and omissions proximately caused the
incorrect ovary to be removed and caused damages directly and
proximately resulting from their negligent acts and
omissions. The defendants answered, denying any act of theirs
caused her claimed damages and denying Ortega was damaged in
the manner or to the extent she claimed.
In May 2018, Sanford and Dr. Iverson moved the district court
for summary judgment, arguing that Ortega's negligence
claim fails because she cannot establish a causal
relationship between the defendants' alleged conduct and
the harm complained of absent expert testimony. They also
argued her negligence claim fails because she cannot
establish she suffered any damages. Ortega opposed the
In July 2018, the district court granted summary judgment and
dismissed the case without prejudice. Although not argued by
the defendants in their summary judgment motion, the court
held Ortega failed to file an admissible expert opinion
supporting a prima facie medical malpractice claim within
three months of commencing the action, as required under
N.D.C.C. § 28-01-46. The court held Dr. Iverson's
removal of the ovary was not an "obvious
occurrence" precluding application of N.D.C.C. §
28-01-46. The court further concluded, "Although the
procedure was not consented to, Dr. Iverson's actions did
not constitute a procedure on the 'wrong organ,
'" and therefore the "wrong organ"
exception in N.D.C.C. § 28-01-46 did not apply.
"Generally, an order dismissing a complaint without
prejudice is not appealable." James Vault &
Precast Co. v. B&B Hot Oil Serv., Inc., 2018 ND 63,
¶ 10, 908 N.W.2d 108 (quoting Sanderson v. Walsh
Cty., 2006 ND 83, ¶ 5, 712 N.W.2d 842). "A
dismissal without prejudice may be final and appealable,
however, if the dismissal has the practical effect of
terminating the litigation in the plaintiffs chosen
forum." James Vault & Precast, at ¶ 10
(citing Haugenoe v. Bambrick, 2003 ND 92, ¶ 2,
663 N.W, 2d 175). "[W]here a statute of limitations has
run, the dismissal of an action without prejudice
'effectively forecloses litigation in the courts of this
state.'" James Vault & Precast, at
¶ 10 (quoting Haugenoe, at ¶ 2). "A
dismissal without prejudice is therefore appealable where a
statute of limitations has run." James Vault &
Precast, at ¶ 10.
"The three-month requirement to provide an admissible
expert opinion affidavit 'operates within the confines of
a two-year statute of limitations for medical malpractice
claims.'" Cartwright v. Tong, 2017 ND 146,
¶ 6, 896 N.W.2d 638 (quoting Scheer v. Altru Health
Sys., 2007 ND 104, ¶ 11, 734 N.W.2d 778).
"[T]he two-year statute of limitations begins to run
when the plaintiff knows, or with reasonable diligence should
know, of (1) the injury, (2) its cause, and (3) the
defendant's possible negligence."
Cartwright, at ¶ 6 (quoting Scheer, at
According to Ortega's complaint, she alleges she
presented to Dr. Iverson at Sanford to have a surgery to
remove her right ovary on or about August 14, 2014, and
alleges Dr. Iverson negligently removed her left ovary. It is
undisputed a second surgery was performed on October 2, 2014,
to remove Ortega's right ovary. The district court
entered its order dismissing Ortega's complaint on July
11, 2018. Although Ortega appealed from the order, a
subsequent consistent judgment of dismissal without prejudice
was entered on July 12, 2018. See Farmers Union Oil Co.
v. Smetana,2009 ND 74, ¶ 7, 764 N.W.2d 665
("An order granting summary judgment is not appealable[;
however, an] attempted appeal from the order granting summary
judgment will ... be treated as an appeal from a subsequently
entered consistent judgment, if one exists."). We
conclude on ...