Jaskoviak v. Gruver

• Decision Date: 03 January 2002
• Docket Number: No. 20010065.,20010065.
• Citation: 638 N.W.2d 1,2002 ND 1
• Parties: Steven JASKOVIAK, Plaintiff and Appellant, v. Daniel GRUVER, M.D., Defendant and Appellee, and Medcenter One Health Systems, Defendant.
• Court: North Dakota Supreme Court

638 N.W.2d 1

2002 ND 1

Steven JASKOVIAK, Plaintiff and Appellant, v. Daniel GRUVER, M.D., Defendant and Appellee, and Medcenter One Health Systems, Defendant.

No. 20010065.

Supreme Court of North Dakota.

January 3, 2002.

Robert V. Bolinske (on brief), Bismarck, for plaintiff and appellant.

Robert J. Udland, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Steven Jaskoviak appealed a summary judgment dismissing, without prejudice, his action against Daniel Gruver, M.D., and Medcenter One Health Systems ("Medcenter"). We conclude summary judgment was improperly ordered, and we reverse and remand for further proceedings.

I

[¶ 2] In 1997, Gruver operated on Jaskoviak at Medcenter's hospital. In 1998, Jaskoviak sued Gruver and Medcenter, alleging "Gruver was negligent in his care and treatment of plaintiff in the surgical procedure involving the removal of varicose veins," and Medcenter "was negligent in employing and permitting an unqualified physician to practice medicine." Gruver and Medcenter moved for summary judgment dismissing Jaskoviak's action, or for dismissal for failure to comply with N.D.C.C. § 28-01-46, which provides, in part:

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.... This section does not apply to alleged lack of informed consent ... or ... obvious occurrence.

Section 28-01-46, N.D.C.C., "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." Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 8, 622 N.W.2d 195.

[¶ 3] Jaskoviak moved to amend his complaint to add an additional paragraph, "essentially as follows":

That, further, defendants Gruver and Medcenter One Health Systems failed to obtain plaintiff Steven Jaskoviak's informed consent for the procedures involved in this action.

The district court granted Jaskoviak's motion and later issued an order permitting Jaskoviak to amend his complaint to include a claim for lack of informed consent against Gruver, but not against Medcenter. Jaskoviak never served an amended complaint.

[¶ 4] On December 27, 2000, the trial court dismissed the negligence claim against Gruver for failure to comply with N.D.C.C. § 28-01-46, and dismissed the negligence claim against Medcenter, because "nothing has been submitted establishing an admissible expert opinion on the issue of whether Medcenter was negligent in hiring or permitting Gruver to practice at Medcenter." Although the trial court recognized N.D.C.C. § 28-01-46 does not apply to Jaskoviak's informed consent claim, the trial court granted summary judgment dismissing the informed consent claim for lack of an expert opinion, explaining:

The only remaining claim is that Gruver failed to obtain Steven Jaskoviak's informed consent. While § 28-01-46 does not apply to this issue in terms of whether an expert opinion must be provided, it is clear that establishing a violation of the requirements of informed consent does require expert testimony. The only expert evidence of negligence that has been presented in this case is Dr. Hamar's affidavit, wherein he states (1) what options were available to the plaintiff, (2) that a physician has a duty to explain alternative treatments and the risks of each, and (3) that, if the plaintiff was not so informed, such failure would constitute medical negligence.

The Note to North Dakota Civil Pattern Jury Instruction C-14.20 states: "Expert testimony is generally necessary to identify the risks of treatment, their gravity, the likelihood of occurrence, and reasonable alternatives." Dr. Hamar's affidavit sets out reasonable alternatives, but does not establish any of the other requirements. Nor does any other evidence presented by the plaintiff do so. Further, the plaintiff has provided no evidence establishing the general elements of medical negligence, those being the standard of care applicable, the defendant's failure to meet the standard of care, and that the defendant's failure to meet the standard of care caused the plaintiff's alleged damages.

[¶ 5] A judgment of dismissal without prejudice was entered January 9, 2001. On January 12, 2001, Jaskoviak moved for reconsideration. The trial court denied Jaskoviak's motion for reconsideration. Jaskoviak appealed. Jaskoviak later agreed to the voluntary dismissal of his appeal of that part of the judgment dismissing his claims against Medcenter.

[¶ 6] Jaskoviak contends the judgment is appealable, the trial court erred in denying his motion for reconsideration, and the trial court erred in granting Gruver's motion for summary judgment. Gruver contends the judgment is appealable, the informed consent issue was not properly before the trial court, the trial court properly denied Jaskoviak's motion for reconsideration, and the trial court properly granted summary judgment.

[¶ 7] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] The judgment of dismissal entered in this case specified it was without prejudice. "[A] dismissal without prejudice is ordinarily not appealable." Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, ¶ 12, 632 N.W.2d 407. "However, a dismissal without prejudice may be final and appealable... if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum." Id. If the dismissal stands, Jaskoviak will be barred from bringing another action by N.D.C.C. § 28-01-18(3), which sets a two-year statute of limitations for malpractice. Thus, as in Rodenburg, the judgment of dismissal without prejudice in this case "effectively forecloses litigation in the courts of this state," and, we conclude, it "is, therefore, appealable." Id. at ¶ 12.

III

[¶ 9] Gruver contends the trial court abused its discretion in granting Jaskoviak's motion to amend the complaint, and contends Jaskoviak's appeal should be dismissed because, although the trial court granted his motion to amend the complaint to add a claim that Gruver and Medcenter failed to obtain his informed consent, Jaskoviak never served an amended complaint. We will not reverse a trial court's decision to grant or deny a motion to amend pleadings absent an abuse of discretion. Messiha v. State, 1998 ND 149, ¶ 7, 583 N.W.2d 385. We conclude the trial court did not abuse its discretion in granting the motion to amend. This Court has held that when a motion to amend a complaint has been granted, the plaintiff must affirmatively redraw the complaint to effect an amendment or the amendment is deemed abandoned, Hausken v. Coman, 66 N.D. 633, 268 N.W. 430, 431, Syll. ¶ 2 (1936), leaving "no issue framed in the pleadings," Clark v. Ellingson, 35 N.D. 546, 161 N.W. 199, 201 (1916). See also Nelson v. Adams USA, Inc., 529 U.S. 460, 120 S.Ct. 1579, 1584, 146 L.Ed.2d 530 (2000)

(where a motion to amend a complaint to add a defendant was granted and judgment was entered without an amended pleading having been composed, served, and filed, and the defendant was not afforded ten days to state his defenses, "the proceedings did not comply with Rule 15, and neither did they comport with due process"). Here, however, a copy of the proposed amendment was served with the motion to amend, and Gruver was not disadvantaged. Furthermore, Gruver did not raise the lack of service of an amended complaint as an issue in the trial court. An issue not raised in the trial court cannot be raised for the first time on appeal. Moilan v. Moilan, 1999 ND 103, ¶ 32 n. 2, 598 N.W.2d 81.

IV

[¶ 10] Jaskoviak contends the trial court erred in denying his motion for reconsideration. A judgment of dismissal without prejudice was entered January 9, 2001. On January 12, 2001, Jaskoviak moved for reconsideration, supporting his motion with an affidavit of Dr. Martin L. Bell, a brief, and his own affidavit, averring, among other things, he would not have undergone the surgery performed by Gruver if Gruver had properly advised him about available alternatives for treating his condition. The trial court ruled "[t]he materials provided supporting the Motion do not provide a basis for the Court to change its ruling." Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely, and this Court "need not examine whether it is sufficient to raise a genuine factual issue." Follman v. Upper Valley Spec. Educ. Unit, 2000 ND 72, ¶ 12 n. 5, 609 N.W.2d 90. Because the affidavits submitted in support of Jaskoviak's motion for reconsideration were submitted after summary judgment was issued, they were untimely and we need not determine whether they were sufficient to raise a genuine factual issue precluding summary judgment.

V

[¶ 11] Jaskoviak contends the trial court erred in granting Gruver's motion for summary judgment. We recently explained our review of summary judgments:

We review this appeal in the posture of summary judgment, which is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Reed v. University of North Dakota, 1999 ND 25, ¶ 7, 589 N.W.2d 880. On appeal, we review the

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