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Ortega v. Bismarck

Supreme Court of North Dakota

May 16, 2019

Nancy Ortega, Plaintiff and Appellant
Sanford Bismarck, Christie Iverson, M.D., Defendants and Appellees

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Scott A. Hager, Bismarck, ND, for plaintiff and appellant.

          Bnana L. Rummel (argued) and Brenda L. Blazer (appeared), Bismarck, ND, for defendants and appellees.


          Jensen, Justice.

         [¶1] 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.


         [¶2] 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.

         [¶3] 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.

         [¶4] 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 motion.

         [¶5] 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.


         [¶6] "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.

         [¶7] "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 ¶ 11).

         [¶8] 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 ...

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