Greenwood v. Paracelsus Health Care Corp., 20000175.

• Decision Date: 15 February 2001
• Docket Number: No. 20000175.,20000175.
• Citation: 622 N.W.2d 195,2001 ND 28
• Parties: Nancy GREENWOOD, Plaintiff and Appellant, v. PARACELSUS HEALTH CARE CORP. OF NORTH DAKOTA INCORPORATED CORPORATION, d/b/a Heartland Medical Center, and Dr. Gary Lindemoen, Defendants and Appellees.
• Court: North Dakota Supreme Court

622 N.W.2d 195

2001 ND 28

Nancy GREENWOOD, Plaintiff and Appellant, v. PARACELSUS HEALTH CARE CORP. OF NORTH DAKOTA INCORPORATED CORPORATION, d/b/a Heartland Medical Center, and Dr. Gary Lindemoen, Defendants and Appellees.

No. 20000175.

Supreme Court of North Dakota.

February 15, 2001.

James D. Hovey (argued), Alexander Reichert (appeared), Richard A. Clapp (on brief) and Margaret Moore Jackson (on brief), Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.

Bernard E. Reynolds, Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, MN, for defendant and appellee Paracelsus Health Care Corp.

Joel A. Flom (argued) and Aaron J. Dorrheim (on brief), Jeffries, Olson & Flom, PA, Fargo, ND, for defendant and appellee Dr. Gary Lindemoen.

NEUMANN, Justice.

[¶ 1] Nancy Greenwood appeals from district court judgments dismissing her medical malpractice actions against Paracelsus Health Care Corporation of North Dakota and Dr. Gary Lindemoen. We affirm the judgment dismissing the action against Paracelsus, reverse the judgment dismissing the action against Dr. Lindemoen, and remand for a new trial against Dr. Lindemoen.

I

[¶ 2] In 1993 Greenwood consulted Dr. Lindemoen, an oral maxillofacial surgeon, about problems she was having with her temporomandibular joint ("TMJ"). Dr. Lindemoen performed TMJ surgery on Greenwood in March 1994. The surgery was performed at Heartland Medical Center, which was owned and operated by Paracelsus. During the surgery Dr. Lindemoen placed a "bunched-up" piece of gauze in or at the outside of Greenwood's left ear to prevent blood from draining into the ear.

[¶ 3] After the surgery Greenwood began experiencing discomfort in her ear. She felt a fullness in her ear, and felt like there was water in her ear that she could not get out. At her follow-up visit four weeks after surgery, Greenwood told Dr. Lindemoen of the ear problems she had been experiencing. Dr. Lindemoen told her the discomfort was normal and the ear was just healing. It is not clear from the record whether Dr. Lindemoen actually looked into Greenwood's ear during that visit.

[¶ 4] Greenwood continued to experience intermittent pain and discomfort, and her ear developed a foul odor. In February 1996 she went to see her regular physician, Dr. James Burrell, complaining that her ear had felt plugged up for months. Dr. Burrell examined her ear and noticed a cloth-like object covered with wax. He then used a curette to remove the object from Greenwood's ear. Dr. Burrell testified the object was a gauze-like material, consistent with surgical packing, which appeared to have been in Greenwood's ear for a long time. Greenwood's ear problems, including the foul odor, improved after the object was removed. She continues to have some earaches and swelling in her ear caused by eczema.

[¶ 5] In December 1997, Greenwood brought this action against Dr. Lindemoen and Paracelsus, alleging they had negligently left gauze in her ear during the surgery. A jury trial was held on April 25-26, 2000. At the close of Greenwood's case-in-chief, Dr. Lindemoen and Paracelsus moved for judgment as a matter of law. The trial court granted the motions, and separate judgments dismissing the actions against Dr. Lindemoen and Paracelsus were entered. Greenwood appealed.

II

[¶ 6] We have recently summarized our standard of review of a trial court's determination of a motion for judgment as a matter of law:

The standard of review on a motion for judgment as a matter of law under N.D.R.Civ.P. 50 is the same as the standard applied to motions for directed verdict before the rule was modified in 1994. The trial court's decision on a motion brought under N.D.R.Civ.P. 50 to grant or deny judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In determining whether the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence. A trial court's decision on a motion for judgment as a matter of law is fully reviewable on appeal.

Peterson v. Traill County, 1999 ND 197, ¶ 7, 601 N.W.2d 268 (citations omitted); see also Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450

.

III

[¶ 7] The defendants based their motions for judgment as a matter of law upon N.D.C.C. § 28-01-46, and the trial court based its dismissal of Greenwood's claims upon that statute. Section 28-01-46 provides:

Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases. Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice 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 for good cause shown by the plaintiff. The expert's affidavit must identify the name and business address of the expert, indicate the expert's field of expertise, and contain a brief summary of the basis for the expert's opinion. 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.

[¶ 8] We have addressed the legislative intent underlying the statute in a number of prior cases. Section 28-01-46 was specifically designed to dispose of frivolous or nuisance medical malpractice actions at an early stage of the proceedings. Larson v. Hetland, 1999 ND 98, ¶ 12, 593 N.W.2d 785; Ellefson v. Earnshaw, 499 N.W.2d 112, 114 (N.D.1993); Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D.1993); Fortier v. Traynor, 330 N.W.2d 513, 516 (N.D.1983). The statute provides for preliminary screening of totally unsupported claims, and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim. Larson, at ¶ 12; Ellefson, 499 N.W.2d at 114; Larsen, 498 N.W.2d at 192. The statute was enacted to prevent the necessity of an actual trial in such cases. Larsen, 498 N.W.2d at 192; Fortier, 330 N.W.2d at 516; Weasel v. St. Alexius Medical Center, 230 F.3d 348, 351 (8th Cir.2000).

[¶ 9] Section 28-01-46 is clearly intended to apply only pre-trial. The defendants had over two years between the commencement of the action and the beginning of trial to seek dismissal based upon the statute, but failed to do so. They waited until the close of the plaintiff's case, on the second day of trial, to move for judgment as a matter of law under N.D.R.Civ.P. 50.

[¶ 10] Section 28-01-46 does not apply once the trial has begun. At that point, the plaintiff's burden is to establish a prima facie case, with appropriate expert testimony if required. In order to establish a prima facie medical malpractice case, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the harm complained of. E.g., Larsen, 498 N.W.2d at 192

; Heimer v. Privratsky, 434 N.W.2d 357, 359 (N.D.1989); Peterson v. Kilzer, 420 N.W.2d 754, 755 (N.D.1988); Winkjer v. Herr, 277 N.W.2d 579, 583 (N.D.1979). The dispositive issue on appeal is whether, when viewing the evidence in the light most favorable to Greenwood, accepting the truth of all of her evidence, and giving her the benefit of all reasonable inferences to be drawn from the evidence, the jury could reach only one conclusion with no reasonable difference of opinion. See Peterson v. Traill County, 1999 ND 197, ¶ 7, 601 N.W.2d 268.

IV

[¶ 11] We will first address this standard as it applies to Greenwood's claims against Dr. Lindemoen.

[¶ 12] The parties devote much of their arguments to N.D.C.C. § 28-01-46 and res ipsa loquitur. Dr. Lindemoen argues that, even if N.D.C.C. § 28-01-46 is not directly applicable, it is still essentially a definition of the doctrine of res ipsa loquitur in medical malpractice cases. See Larsen, 498 N.W.2d at 194

. Accordingly, Dr. Lindemoen argues Greenwood's claim fails because it does not fit under traditional res ipsa loquitur concepts nor within one of the exceptions in N.D.C.C. § 28-01-46. We find it unnecessary to address these issues because we conclude Greenwood established a prima facie case without relying upon res ipsa loquitur or upon the exceptions to N.D.C.C. § 28-01-46.

[¶ 13] Our caselaw generally requires that the plaintiff establish through expert testimony the degree of care and skill required of a physician, and whether specified acts fall below that standard of care. See Heimer, 434 N.W.2d at 359

; Winkjer, 277 N.W.2d at 585. In this case Dr. Lindemoen provided the necessary expert testimony when he testified that the applicable standard of care would require gauze placed in the ear during surgery to be removed, and if a physician left gauze in a patient's ear after surgery it would fall beneath the standard of care for an oral maxillofacial surgeon. A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician. Peterson, 420 N.W.2d at 756; Winkjer, 277 N.W.2d at 586. Dr. Lindemoen's testimony established the standard of care in this case.

[¶ 14] Having established that leaving gauze in the ear would fall below the standard of care, Greenwood was next required to prove Dr. Lindemoen did in fact leave gauze in her ear after the surgery. We conclude...