Ellefson v. Earnshaw, 920214

• Decision Date: 27 April 1993
• Docket Number: No. 920214,920214
• Parties: Joyce M. ELLEFSON, Plaintiff and Appellant, v. Peter H. EARNSHAW, M.D., Defendant and Appellee, and St. Joseph's Hospital of Minot, North Dakota, a Non-Profit Corporation, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 112

499 N.W.2d 112

Joyce M. ELLEFSON, Plaintiff and Appellant, v. Peter H. EARNSHAW, M.D., Defendant and Appellee, and St. Joseph's Hospital of Minot, North Dakota, a Non-Profit

Corporation, Defendant.

Civ. No. 920214.

Supreme Court of North Dakota.

April 27, 1993.

Dosch Law Office, Devils Lake, for plaintiff and appellant; argued by Michael J. Walker.

Zuger, Kirmis & Smith, Bismarck, for defendant and appellee; argued by Lance D. Schreiner.

VANDE WALLE, Chief Justice.

Joyce Ellefson appealed from a district court judgment dismissing with prejudice her medical malpractice action against Dr. Peter Earnshaw, M.D., for failure to secure an expert witness as required under Section 28-01-46, N.D.C.C. We reverse and remand for further proceedings.

Between 1985 and 1989 Ellefson received treatment from Dr. Earnshaw for osteoarthritis of the knees. Ellefson agreed to have Dr. Earnshaw perform bilateral knee replacement surgery on her knees in July 1989. The surgery required Dr. Earnshaw to insert a reamer into the inner canals of Ellefson's femurs. It is undisputed that during this procedure both of Ellefson's femurs were fractured, and that neither fracture was detected until more than three days after the surgery. Corrective surgery was required to treat the fractured right femur. Ellefson sued Earnshaw, alleging that the fractures were caused by his negligence in conducting the surgery and that Dr. Earnshaw was also negligent in not discovering the fractures more quickly.

Section 28-01-46, N.D.C.C., requires a medical malpractice plaintiff to obtain a supporting expert opinion within three months of commencing an action, or risk dismissal of it by the court:

"Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence is dismissible on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court. This section does not apply to alleged lack of informed consent, unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient's body, or other obvious occurrence."

In support of her malpractice action against Dr. Earnshaw, Ellefson obtained the opinion of an orthopedic surgeon, Dr. Perry W. Greene, Jr., M.D. When Dr. Earnshaw moved to dismiss Ellefson's action under Section 28-01-46, N.D.C.C., the trial court reviewed Dr. Greene's letter report and deposition. The court determined that Dr. Greene's deposition included "numerous testimony that could be construed as tantamount to opinions of negligence." Nevertheless, the court dismissed the case for Ellefson's failure to obtain a supporting expert opinion, because Dr. Greene's views included "contemplations, equivocations and ambiguities."

In Larsen v. Zarrett, 498 N.W.2d 191 (N.D.1993), we concluded that, as a matter of law, the plaintiff had failed to secure a supporting expert opinion for her malpractice claim, and that the trial court properly dismissed the case under Section 28-01-46, N.D.C.C. Because the facts of that case permitted us to resolve the issue "as a matter of law," it was unnecessary for us to decide what is the standard for reviewing a dismissal under Section 28-01-46, N.D.C.C. But, we made the following relevant comments about that issue:

"A trial court's decision to dismiss a medical malpractice claim under the authority of Sec. 28-01-46 does not fit neatly within the contours of either a typical summary judgment disposition or a typical evidentiary ruling made during the course of a trial. The statute, by requiring an admissible expert opinion within three months of the commencement of the action, accelerates the litigation process in a medical malpractice case. The summary judgment procedure under Rule 56 envisions completion of more discovery by all of the parties than can usually be accomplished under the time limitations of the statute. Likewise, the consequence of a dismissal under the statute is much more drastic than the consequence of a typical evidentiary ruling made by the court during the course of a trial. For these reasons, simply applying either a genuine-issue-of-material-fact analysis or an evidentiary-abuse-of-discretion analysis may not be appropriate. Rather, greater leniency for the plaintiff who is subject to a motion for dismissal under Sec. 28-01-46 may be required than is typically given under either standard." Larsen, supra, 498 N.W.2d at 195 fn. 2.

The purpose of Section 28-01-46, N.D.C.C., is to eliminate, at an early stage of the proceedings, frivolous or nuisance medical malpractice actions. Heimer v. Privratsky, 434 N.W.2d 357 (N.D.1989); Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983). The statute provides for a preliminary screening of...