Peterson v. Kilzer, 870219

• Decision Date: 14 March 1988
• Docket Number: No. 870219,870219
• Citation: 420 N.W.2d 754
• Parties: LaRae PETERSON, Plaintiff and Appellant, v. Ralph L. KILZER, M.D., Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 754

420 N.W.2d 754

LaRae PETERSON, Plaintiff and Appellant, v. Ralph L. KILZER, M.D., Defendant and Appellee.

Civ. No. 870219.

Supreme Court of North Dakota.

March 14, 1988.

Frederick Edward Saefke, Jr. (argued), Bismarck, for plaintiff and appellant.

Fleck, Mather, Strutz & Mayer, P.C., Bismarck, for defendant and appellee; argued by William A. Strutz.

GIERKE, Acting Chief Justice.

LaRae Peterson appeals from a summary judgment dismissing her medical malpractice action against Dr. Ralph L. Kilzer. We affirm.

Peterson was involved in an automobile accident in April 1976, incurring a comminuted fracture of her right femur as well as severe injuries to her right ankle and foot. Dr. Kilzer treated Peterson for these injuries. He treated the fractured femur by placing her in traction for a period of weeks and then placing her in a body cast. Dr. Kilzer also treated Peterson's ankle and foot injuries, and he last treated her in 1979.

Peterson continued to experience pain in her right knee and ankle, and even with the aid of an ankle brace she continued to walk on the side of her right foot. Dissatisfied with her condition, Peterson consulted Dr. Charles Dahl during March 1982. Although she initially sought only a new brace for her ankle, on Peterson's third visit to Dr. Dahl she complained of pain in her right leg and knee which prompted him to examine her right femur. He discovered that it had healed in an "eight-degree varus position." Dr. Dahl concluded that the pain Peterson was experiencing in her knee might be alleviated or reduced by surgery to straighten the femur. Dr. Dahl subsequently performed this surgery.

Peterson subsequently filed this malpractice action against Dr. Kilzer, alleging that he acted negligently in providing treatment and care of her fractured femur. Following discovery and the filing of a certificate of readiness by Peterson's counsel, Dr. Kilzer's attorney filed a motion requesting summary judgment dismissal of the action. The trial court granted the motion for dismissal on the ground that Peterson had failed to obtain an expert opinion to support her action as required by Section 28-01-46, N.D.C.C., and as also required under the holding of Winkjer v. Herr, 277 N.W.2d 579 (N.D.1979).

On appeal from the dismissal Peterson asserts that Dr. Kilzer waived his right to file a motion for summary judgment because he did not file a certificate of non-readiness. Rule 56(b), N.D.R.Civ.P., provides in relevant part:

"A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." [Emphasis added.]

We conclude that Dr. Kilzer did not waive his right to bring a motion for summary judgment dismissal.

Peterson also asserts on appeal that Section 28-01-46, N.D.C.C., is unconstitutional. We conclude that it is neither necessary nor appropriate to decide this issue, because the statutory provision is not applicable to this case. Dr. Kilzer's treatment of Peterson, for which he is alleged to have acted negligently, occurred during 1976 through 1979. Section 28-01-46, N.D.C.C., went into effect on July 1, 1981. In Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983), we held that this statutory provision does not have retroactive application. We conclude, therefore, that Section 28-01-46, N.D.C.C., is not applicable to this case and that the trial court's dismissal cannot be upheld on the ground that Peterson violated the requirements of the provision.

Peterson also asserts on appeal that she has raised genuine issues of material fact and that the trial court therefore erred in granting a summary judgment dismissal.

In Winkjer, supra, 277 N.W.2d at 583, we stated that a prima facie case of medical malpractice must consist of "evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of." We also stated that unless the alleged malpractice involves matters which are susceptible of understanding by a lay person without the...