Margaret Cichos, individually, and as the surviving spouse of Bradley Cichos, and as Personal Representative of the Estate of Bradley Cichos, deceased, Lyman Halvorson, individually, Kenzie Halvorson, individually, Landon and Sierra Halvorson as parents and natural guardians of A.H. DOB 2011, a minor child, each individually and collectively as assignees of Lyle Lima, Lyle Lima, individually, Plaintiffs and Appellants
Dakota Eye Institute, P.C., Dakota Eye Institute, LLP, Briana Bohn, O.D., individually, Defendants and Appellees
from the District Court of Pierce County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
M. Traynor (argued) and Jonathon F. Yunker (appeared), Devils
Lake, N.D., for plaintiff and appellant Margaret Cichos.
Timothy M. O'Keeffe (on brief), Fargo, N.D., for
plaintiffs and appellants Lyman and Kenzie Halvorson.
V. Larson (appeared), Minot, N.D., for plaintiffs and
appellants Landon and Sierra Halvorson.
R. Vendsel (on brief), Minot, N.D., for plaintiff and
appellant Lyle Lima.
V. Kolb (argued), Bismarck, N.D., for defendants and
Plaintiffs appeal from the district court's judgment and
amended judgment dismissing their complaint. The parties
dispute whether a physician in North Dakota owes a duty to
third parties to warn a patient regarding vision impairments
to driving; whether medical malpractice claims are
assignable; and whether the medical expert affidavit met the
requirements of N.D.C.C. § 28-01-46. We conclude
physicians do not owe a duty to third parties under these
circumstances, Lima's malpractice claim is assignable,
and the expert affidavit was sufficient to avoid dismissal.
We remand for further proceedings.
In their first amended complaint, the plaintiffs alleged the
following facts. In May 2016, Lyle Lima was driving his truck
on a highway when he collided with a horse-drawn hay trailer.
The collision killed one of the five passengers on the
horse-drawn trailer and injured the others. In April 2015, a
doctor at Dakota Eye Institute determined Lima to be legally
blind, prepared a certificate of blindness, and instructed
Lima and his spouse that he was not to drive. In April 2016,
about six weeks before the collision, a second Dakota Eye
Institute doctor, Briana Bohn, examined Lima. Dr. Bohn
measured Lima's vision as being "improved" and
"told Lyle Lima he could drive, with some
restrictions." Plaintiffs claimed Dr. Bohn was liable
for medical malpractice because Lima's eyesight, although
improved, was still below the minimum vision standards
required to operate a vehicle in North Dakota under N.D.
Admin. Code ch. 37-08-01.
The injured parties and their representatives made a claim
against Lima, which he could not fully satisfy. In partial
settlement of the claim, Lima assigned his medical
malpractice claim against Dakota Eye Institute and any
recovery he might receive to the other plaintiffs. The
injured parties and Lima then filed this suit individually
and as assignees of Lima against Dr. Bohn, Dakota Eye
Institute P.C., and Dakota Eye Institute LLC. The defendants
filed two motions to dismiss: one arguing Lima's claims
were not assignable and should be dismissed under
N.D.R.Civ.P. 12(b)(6), and one arguing the affidavit failed
to meet the requirements of N.D.C.C. § 28-01-46. At the
hearing on the motions, the parties also argued whether North
Dakota law extends liability for medical malpractice to a
third party who was not a patient. The district court granted
the motions to dismiss.
In Ramirez v. Walmart, we explained:
A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the
legal sufficiency of the claim presented in the complaint. On
appeal, we construe the complaint in the light most favorable
to the plaintiff and accept as true the well-pleaded
allegations in the complaint. This Court will affirm a
judgment dismissing a complaint for failure to state a claim
under N.D.R.Civ.P. 12(b)(6) if we cannot discern a potential
for proof to support it. We review a district court's
decision granting a motion to dismiss under N.D.R.Civ.P.
12(b)(6) de novo.
2018 ND 179, ¶ 7, 915 N.W.2d 674 (internal citations and
quotation marks omitted).
Appellants argue Dr. Bohn owed a duty to the injured parties
to warn Lima that his vision was below the minimum standard
to operate an automobile. Third party liability for medical
malpractice is an issue of first impression in North Dakota.
Appellants cite several cases from other jurisdictions in
support of a duty to third parties in various circumstances.
Many of these cases involve physicians prescribing or
administering medications and failing to warn about side
effects. Such cases are of limited persuasive value here
where no medication was administered to Lima. In situations
similar to this one, other jurisdictions are divided, but we
find more persuasive those that state there is no third party
duty to warn a patient based on public policy considerations.
"[I]n a negligence action, whether or not a duty exists
is generally an initial question of law for the court."
Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911
N.W.2d 343 (quoting APM, LLLP v. TCI Ins. Agency,
Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34 (internal
The court must balance the following factors when determining
the existence of duty in each particular case: (1)
foreseeability of harm to plaintiff; (2) degree of certainty
that plaintiff suffered injury; (3) closeness of connection
between defendant's conduct and injury suffered; (4)
moral blame attached to defendant's conduct; (5) policy
of preventing future harm; (6) extent of burden to defendant
and the consequences to the community of imposing a duty to
exercise care with resulting liability for breach; and (7)
availability, cost and prevalence of insurance for the risk
Bjerk, at ¶ 18 (quoting Hurt v.
Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551 (quoting
W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 53, at 359 n.24 (5th ed. 1984))). Although
"[i]mposition of a duty on these facts is a policy-laden
question better suited to legislative judgments . . . courts
must sometimes consider public policy in determining whether
a duty of care applies in a particular situation."
Bjerk, at ¶ 24.
In Kolbe v. State, 661 N.W.2d 142 (Iowa 2003),
Charles Kolbe was struck by a vehicle driven by Justin
Schulte. Id. at 143. Schulte had a form of macular
degeneration called Stargardt's Disease which leaves him
blind when looking directly ahead and requires him to use his
peripheral vision to see. Id. at 143-44. Three
doctors wrote letters to the Iowa Department of
Transportation ("IDOT") recommending Schulte be
permitted to drive with restrictions. Id. Schulte
collided with Kolbe while Kolbe and his wife were riding
bicycles. Id. at 145. The Kolbes sued Schulte's
doctors under a theory of negligence in recommending to IDOT
that Schulte be permitted to drive with restrictions.
The Kolbe court analyzed the issue of "whether
a physician owes a duty to persons not within the
physician/patient relationship." Id. Three
factors were weighed to determine if there was a duty: (1)
the parties' relationship, (2) reasonable foreseeability
of harm to the injured person, and (3) public policy
considerations. Id. at 146. The court weighed these
factors "under a balancing approach and not as three
distinct and necessary elements. . . . [W]hether a duty
exists is a policy decision." Id. "More
important than [the first two factors] is the issue of the
public policy concerns implicated by imposing liability on
physicians under such circumstances. As we stated above, the
existence of a duty depends largely on public policy."
Id. at 147. The court noted there was no privity
between the Kolbes and the doctors and the harm to Kolbe was
not a foreseeable result of the doctors' recommendations.
Id. at 146-47.
The Kolbe court expressed particular concern
regarding how physicians' concerns over third party
liability might affect how they treat their patients, thus
compromising treatment. Id. at 148-49. A
"therapist might . . . find it necessary to deviate from
the treatment [he] would normally provide." Id.
at 149 (quoting J.A.H. v. Wadle and Associates, 589
N.W.2d 256, 263 (Iowa 1999)). Such incentives would destroy
the patient-physician relationship. Id.
"[P]hysicians may become prone to make overly
restrictive recommendations concerning the activities of
their patients." Id. (quoting Schmidt v.
Mahoney, 659 N.W.2d 552, 555 (Iowa 2003)). The court
concluded that at "the public policy level, a physician
does not have a duty to 'protect the entire public from
any harm that might result from his or her patient's
actions.'" Id. at 150 (quoting Crosby
by Crosby v. Sultz, 592 A.2d 1337, 1344 (Pa. Super. Ct.
1991)). "Rather, physicians must be able to ...