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Cichos v. Dakota Eye Institute, P.C.

Supreme Court of North Dakota

September 24, 2019

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

          Appeal from the District Court of Pierce County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Daniel 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.

          Mark V. Larson (appeared), Minot, N.D., for plaintiffs and appellants Landon and Sierra Halvorson.

          Jason R. Vendsel (on brief), Minot, N.D., for plaintiff and appellant Lyle Lima.

          Tracy V. Kolb (argued), Bismarck, N.D., for defendants and appellees.


          Tufte, Justice.

         [¶1] 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.


         [¶2] 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.

         [¶3] 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.


         [¶4] 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).


         [¶5] 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.

         [¶6] "[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 citation omitted)).

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 involved.

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.

         [¶7] 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. Id.

         [¶8] 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.

         [¶9] 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 ...

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