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Bride v. Trinity Hospital

Supreme Court of North Dakota

May 16, 2019

Tessa Bride, as Personal Representative of the Estate of John L. Pelkey, and as surviving daughter of John L. Pelkey, Plaintiff and Appellant
v.
Trinity Hospital; Marc Eichler, MD; Kim Koo, MD; John Doe, MD, 1-10; John Doe, RN 1-10; and John Doe, 1-10, Defendants and Appellees

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy J. Louser, Judge.

          E. Drew Britcher (argued), Glen Rock, NJ, and Mark V. Larson (appeared), Minot, ND, for plaintiff and appellant.

          Matt A. Paulson (argued) and Randall S. Hanson (appeared), Grand Forks, ND, for Trinity Hospital; Marc Eichler, MD; John Doe, MD, 1-10; John Doe, RN 1-10; and John Doe, 1-10, defendants and appellees.

          Brenda L. Blazer (argued) and Briana L. Rummel (appeared), Bismarck, ND, for Kim Koo, MD, defendant and appellee.

          OPINION

          Crothers, Justice.

         [¶1] Tessa Bride, as personal representative of the estate of John Pelkey, appeals from an order dismissing without prejudice her medical malpractice action against Trinity Hospital, Marc Eichler, M.D., Kim Koo, M.D., and unnamed others. We affirm because Bride failed to serve an affidavit containing an admissible expert opinion supporting a prima facie case of professional negligence within three months of the commencement of the action and failed to request an extension of the time period to serve the affidavit within the three months as required by N.D.C.C. § 28-01-46.

         I

         [¶2] On September 11, 2015, Pelkey fell at home and was transferred to Trinity where he was treated for spinal cord injuries. Neurosurgeons Dr. Eichler and Dr. Koo both operated on him. On September 20, 2015, Pelkey fell at the hospital and sustained serious injuries. Pelkey died on February 2, 2017. On September 14, 2017, Bride sued Trinity, the physicians and other unnamed persons alleging medical malpractice in their treatment and care of Pelkey. In her complaint Bride stated "[a]n admissible expert opinion pursuant to [N.D.C.C.] § 28-01-46 has been obtained . . . to support these allegations." On April 23, 2018, after three months passed without an affidavit being served and without a request for an extension of time to serve the affidavit, Trinity and the physicians sought summary judgment dismissal of the action for Bride's failure to comply with N.D.C.C. § 28-01-46. The district court granted the motion and dismissed the action without prejudice.

         II

         [¶3] In Greene v. Matthys, 2017 ND 107, ¶ 6, 893 N.W.2d 179, we explained:

"Section 28-01-46, N.D.C.C., requires a district court to dismiss an action without prejudice when a plaintiff fails to meet the requirements of this statute. '[A] dismissal without prejudice is ordinarily not appealable.' Scheer v. Altru Health System, 2007 ND 104, ¶ 9, 734 N.W.2d 778 (citations omitted) (quotation marks omitted). '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 forum.' Id. (quoting Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139, ¶ 12, 632 N.W.2d 407)."

         [¶4] Section 28-01-18(3), N.D.C.C., provides a two-year statute of limitations for medical malpractice claims. See White v. Altru Health Sys., 2008 ND 48, ¶ 6, 746 N.W.2d 173. As in Greene, the statute of limitations has expired on Bride's medical malpractice claim, foreclosing further litigation in this state. Therefore, we conclude the dismissal without prejudice is appealable.

         III

         [¶5] Bride argues the district court erred in dismissing her ...


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