Larsen v. Zarrett, 920242

• Decision Date: 29 March 1993
• Docket Number: No. 920242,920242
• Citation: 498 N.W.2d 191
• Parties: Paula J. LARSEN, Plaintiff and Appellant, v. Robert W. ZARRETT, M.D., Fargo Clinic MeritCare, and St. Luke's Hospitals-MeritCare, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 191

498 N.W.2d 191

Paula J. LARSEN, Plaintiff and Appellant, v. Robert W. ZARRETT, M.D., Fargo Clinic MeritCare, and St Luke's Hospitals-MeritCare, Defendants and Appellees.

Civ. No. 920242.

Supreme Court of North Dakota.

March 29, 1993.

Gary Hazelton, Duranske & Hazelton, Bemidji, MN, for plaintiff and appellant. Submitted on brief.

Jane C. Voglewede (argued), and Wayne W. Carlson (on brief), of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendants and appellees Robert W. Zarrett, M.D., and Fargo Clinic MeritCare.

Paul F. Richard (argued), and Jack G. Marcil (on brief), of Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellee St. Luke's Hospitals-MeritCare.

VANDE WALLE, Chief Justice.

Paula J. Larsen appealed from a district court judgment dismissing with prejudice her medical malpractice action against Robert W. Zarrett, M.D., Fargo Clinic MeritCare, and St. Luke's Hospitals-MeritCare. We affirm.

On August 17, 1989, Dr. Zarrett performed surgery on Larsen for hemorrhoids and an inguinal hernia. After the surgery, Larsen complained of severe pain and numbness in her right leg. She was referred to a neurologist for further evaluation. A CT scan and an EMG study produced normal results.

In July 1991, Larsen commenced this action against Dr. Zarrett, Fargo Clinic, and St. Luke's Hospitals, seeking recovery for nerve damage suffered while she was under general anesthesia during the surgery. In January 1992, the defendants moved for summary judgment of dismissal, asserting that Larsen had not obtained an admissible expert opinion to support her action, and that she therefore had failed to comply with the requirements of Sec. 28-01-46, N.D.C.C. In February 1992, the trial court granted Larsen an additional 30 days to obtain a supporting expert opinion. In May 1992, the defendants renewed their motion for summary judgment of dismissal, asserting that Larsen still had not obtained an admissible supporting expert opinion. In June 1992, the trial court dismissed Larsen's action with prejudice. Larsen appealed.

Section 28-01-46, N.D.C.C., provides:

"28-01-46. 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 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."

Section 28-01-46 was designed to minimize frivolous claims against physicians, nurses, and hospitals [Heimer v. Privratsky, 434 N.W.2d 357 (N.D.1989) ], by avoiding the necessity of a trial in an action based upon professional negligence unless the plaintiff obtains an expert opinion to substantiate the allegations of negligence. Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983). The statute thus seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for a claim.

Except for the three month limit for obtaining an admissible supporting expert opinion, Sec. 28-01-46 has been viewed as essentially codifying the pre-existing case law in this jurisdiction requiring expert testimony to support a prima facie claim of medical malpractice. Fortier v. Traynor, supra; Morlan v. Harrington, 658 F.Supp. 24 (D.N.D.1986). A prima facie case of medical malpractice consists of expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of. Heimer v. Privratsky, supra; Peterson v. Kilzer, 420 N.W.2d 754 (N.D.1988); VanVleet v. Pfeifle, 289 N.W.2d 781 (N.D.1980); Winkjer v. Herr, 277 N.W.2d 579 (N.D.1979). However, expert testimony is not necessary "to establish a duty, the breach of which is a blunder so egregious that a layman is capable of comprehending its enormity." Arneson v. Olson, 270 N.W.2d 125 (N.D.1978). See also Heimer v. Privratsky, supra; Wasem v. Laskowski, 274 N.W.2d 219 (N.D.1979); Winkjer v. Herr, supra.

In this case, Larsen relied upon two experts to support her claim. Dr. John W. Tulloch, a neurologist, conducted an independent examination of Larsen, and reported that Larsen's recollection and supporting medical records "indicate that [her lumbar plexopathy] originated in relation to her operations August 17, 1989." Larsen's counsel then requested Dr. Tulloch to provide an expert opinion pursuant to the requirements of North Dakota law. Dr. Tulloch noted that Larsen's lumbar plexopathy was "an unusual outcome in relation to the type of surgeries" Larsen underwent, but said:

"I am unable to say whether or not this is a deviation from the standard of care in such surgical cases. As a neurologist, I am simply not familiar enough with surgical standards of care to be able to attest that such standards were breached in this particular case. For this reason, I am sure that I would not be deemed a credible expert with respect to surgical standards of care. I believe that you would actually need a general surgeon's opinion on this matter."

Larsen contacted a second expert, Dr. Richard G. Strate, a surgeon who examined Larsen's medical records and suggested "further evaluation of this patient in hopes of determining precisely what is going on and possibly the causative factor."

Larsen was evaluated again by Dr. Tulloch who noted as a "potential etiology" that Larsen may have suffered "a stretch injury which is conceivable in a patient under general anesthesia who has to be managed in multiple positions on the operative table." Dr. Tulloch concluded that "I am quite certain that the only mechanism available for this proximal injury, provided that CT scan really did rule out hemorrhage, would be stretch."

After the defendants filed their initial motions for dismissal, Larsen's counsel wrote Dr. Strate and specifically asked him for his opinion whether there was a deviation from the surgical standard of care. ¹ Dr. Strate concluded that Larsen "suffered either some stretching of the nerve or pressure upon the nerve near the spinal column sometime immediately prior to, during, or immediately after her anesthetic and surgical procedure," but added:

"I have ... re-examined the operative report and anesthetic record and find nothing that would indicate that there was any deviation from the usual practice in turning or positioning the patient for surgery. The operative procedures themselves were handled in a fairly straightforward manner and without complication.

"In summary, I feel that Ms. Larsen did indeed experience some event that led to a neurologic problem involving the lumbar plexus on the right side and this event most likely occurred sometime during the operative procedure. I cannot, however, identify any deviation from the standard practice as evidenced in her preoperative, operative, and postoperative records. This would appear to be a very unfortunate event which, however, could not have been predicted nor anticipated. I am also not sure what special precautions could possibly have been taken in view of the unknown etiology of this apparent nerve injury."

Larsen's counsel again wrote to Dr. Strate, explained to him the doctrine of res ipsa loquitur, and asked: "is the injury suffered by Ms. Larsen one that ordinarily would not occur unless there had been a deviation from the standard of care or is the result rather one that is a recognized risk associated with surgery of this type which can occur even if the standard of care is observed?" Dr. Strate replied:

"I would consider that Ms. Larsen's problem would not be considered as a recognized risk associated with the surgery performed. The problem arises in that we have not been able to identify the cause of her injury. We can recognize that there has been an injury to the spinal cord roots based upon the patient's symptoms and upon the neurologic examination performed. We cannot, however, state that a particular action or lack of action on the part of the surgeon or anesthesiologist, or a particular position that the patient was placed in was the specific entity that led to the outcome seen.

"What can be said is that the patient was apparently neurologically normal prior to surgery. That she underwent anesthesia and two surgical procedures with an intra-operative change in position. That when she awoke from anesthesia symptoms of a neurologic deficit was [sic] present. I cannot, however, state that there was something done (or not done) that led to this condition."

Larsen does not assert that the expert opinions of Dr. Strate and Dr. Tulloch alone support a prima facie case of medical malpractice. Neither doctor could say that a violation of the applicable standard of care occurred or that there was a causal relationship between any such violation and the harm complained of. Rather, relying on authority from other jurisdictions, Larsen argues that the circumstantial evidentiary doctrine of res ipsa loquitur, when aided by the expert opinions of Dr. Strate and Dr. Tulloch, creates an inference of negligence. Larsen's authority from other jurisdictions applies res ipsa loquitur more expansively in medical malpractice cases than we have in our prior cases. See, e.g., Sagmiller v. Carlsen, 219 N.W.2d 885, 893 (N.D.1974) [res ipsa loquitur applies "only where the facts showing negligence are within the understanding of laymen, and the probability of the adverse result from the facts shown (are) within the common knowledge of laymen"]....