Tessa Bride, as Personal Representative of the Estate of John L. Pelkey, and as surviving daughter of John L. Pelkey, Plaintiff and Appellant
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
from the District Court of Ward County, North Central
Judicial District, the Honorable Stacy J. Louser, Judge.
Drew Britcher (argued), Glen Rock, NJ, and Mark V. Larson
(appeared), Minot, ND, for plaintiff and appellant.
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
L. Blazer (argued) and Briana L. Rummel (appeared), Bismarck,
ND, for Kim Koo, MD, defendant and appellee.
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.
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.
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
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.
Bride argues the district court erred in dismissing her