Severance v. Howe

• Citation: 2023 ND 197
• Docket Number: 20230084
• Decision Date: 26 October 2023
• Parties: Randy Dean Severance, Plaintiff and Appellant v. Dr. Brenden Jeron Howe, Defendant and Appellee
• Court: United States State Supreme Court of North Dakota

1

2023 ND 197

Randy Dean Severance, Plaintiff and Appellant v. Dr. Brenden Jeron Howe, Defendant and Appellee

No. 20230084

Supreme Court of North Dakota

October 26, 2023

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

Randy D. Severance, Ryder, ND, plaintiff and defendant.

Duane A. Lillehaug (argued), Fargo, ND, Meggi R. Ihland Pelton (appeared), Bismarck, ND, and Daniel J. Dunn (on brief) Fargo, ND, for defendant and appellee.

OPINION

Crothers, Justice.

[¶1] Randy Severance appeals from a judgment dismissing his personal injury claim against Dr. Brenden Howe. The district court dismissed the case because Severance did not submit an affidavit containing an expert opinion to support a prima facie case of professional negligence as required by N.D.C.C § 28-01-46. We hold Severance pleaded a cognizable claim for the intentional tort of battery and that N.D.C.C. § 28-01-46 does not apply to intentional torts. We reverse the dismissal judgment and remand for further proceedings.

I

[¶2] Severance brought his claim against Howe in small claims court. His claim affidavit stated in full:

"I was a patient of Dr. Howe, seeking relief from occasional back and neck pain. On a personal whim, Dr. Howe decided that I also had an elbow problem. Without my consent he performed unwanted manipulations, repeatedly and forcefully hyperextending my elbow. This resulted in a serious, traumatic elbow injury. My elbow was not in pain prior to Dr. Howe's inappropriate and excessive manipulations, and I had no desire to have it manipulated. As a result of his actions, my right arm was virtually crippled for over 7 months, with serious pain upon light activity. After a period of recovery and extensive physical therapy, my arm still has ongoing pain, stiffness, and impaired functionality."

Howe removed the claim to district court and filed an answer. Howe admitted he performed chiropractic adjustments on Severance but denied they were done without Severance's consent. Severance did not amend his claim affidavit.

[¶3] More than a year after the case was removed, Howe moved to dismiss under N.D.C.C. § 28-01-46 arguing Severance was required to produce an expert opinion within three months of his claim and Severance failed to do so. Severance admitted he did not provide an expert opinion. He sought leave to file an amended claim explicitly specifying a cause of action for medical battery. He resisted the dismissal motion arguing in part that an expert opinion was unnecessary because his claim constituted the intentional tort of medical battery and § 28-01-46 only applies to professional negligence claims.

[¶4] The district court dismissed the case because Severance did not provide a timely expert opinion as required by N.D.C.C. § 28-01-46. The court explained "the North Dakota Supreme Court does not acknowledge a clear difference between . . . 'no consent' and 'inadequate consent,'" and "there is no claim for any form of medical malpractice whereby a Plaintiff would not need to disclose an expert for a lack of consent in a medical procedure." The court denied Severance's motion for leave to amend his complaint and entered an order dismissing the case without prejudice. Severance appeals.

II

[¶5] A dismissal without prejudice is generally not appealable. Scheer v. Altru Health Sys., 2007 ND 104, ¶ 9, 734 N.W.2d 778. Severance's claim is for injuries he allegedly sustained in 2019. Both parties agree the two-year statute of limitations has run in this case. See N.D.C.C. § 28-01-18(1) and (3) (claims for battery and malpractice must be commenced within two years after they accrue). The dismissal judgment effectively forecloses future litigation of Severance's claim and is therefore appealable. See Cartwright v. Tong, 2017 ND 146, ¶¶ 5-7, 896 N.W.2d 638 (holding dismissal judgment under N.D.C.C. § 28-01-46 issued after expiration of limitation period was appealable).

[¶6] "We have not precisely defined the standard of review to be employed by this court in reviewing a trial court's dismissal of a medical malpractice action under § 28-01-46, N.D.C.C., or the standard to be used by the trial court in making its initial determination on the motion." Larsen v. Zarrett, 498 N.W.2d 191, 195 n. 2 (N.D. 1993). We have repeatedly noted the standard to be applied when reviewing decisions under N.D.C.C. § 28-01-46 "may vary depending on the posture of the case before us." Greene v. Matthys, 2017 ND 107, ¶ 8, 893 N.W.2d 179 (collecting cases).

[¶7] The district court dismissed this case assuming Severance's "claims were properly plead." The court held there is not a "specific unique claim of medical battery in North Dakota" and "there is no claim for any form of medical malpractice whereby a Plaintiff would not need to disclose an expert for a lack of consent in a medical procedure." Given the court dismissed Severance's claim as it was pled on legal grounds, we apply the N.D.R.Civ.P. 12(b)(6) standard of review.

[¶8] "The legal sufficiency of a claim is tested by a motion to dismiss under N.D.R.Civ.P. 12(b)(6)." Puklich v. Puklich, 2022 ND 158, ¶ 7, 978 N.W.2d 668.

"[W]e construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. A district court's decision granting a Rule 12(b)(6) motion to dismiss a complaint will be affirmed if we cannot discern a potential for proof to support it. We review a district court's decision granting a motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo on appeal."

Id. (alteration in original) (quoting Atkins v. State, 2021 ND 83, ¶ 9, 959 N.W.2d 588).

III

[¶9] Resolution of this appeal turns on the distinction between the tort of medical battery and medical malpractice. We have noted the distinction between a medical battery claim "which involves a total lack of consent for an act," and a negligent non-disclosure claim "involving the absence of informed consent." Hopfauf v. Hieb, 2006 ND 72, ¶ 11 n. 2, 712 N.W.2d 333. Many jurisdictions, "including our own," have "blurred" the differences between the doctrines. Id. Based on the posture of previous appeals, we have left "clarification of these concepts" for "another day." Id.; see also Cartwright, 2017 ND 146, ¶ 9 n. 1 (noting claims arguably should have been analyzed as medical battery but declining to do so under the law of the case doctrine).

[¶10] The torts of battery and negligence serve different functions and provide different avenues for recovery. Mayr v. Osborne, 795 S.E.2d 731, 735-36 (Va. 2017). Battery protects a person's physical integrity and control over his body. Id. at 736. At its core, the tort of battery operates to protect an individual's right to avoid intentional bodily contact. Id. On the other hand, the tort of negligence serves to encourage the exercise of reasonable care. Id. Obtaining a patient's informed consent relates to a doctor's duty of care, specifically the "duty of a doctor to disclose pertinent information to a patient," including "available choices for treatment and the material and known risks involved with each treatment." Cartwright, 2017 ND 146, ¶ 15.

[¶11] The difference between the torts implicates whether a plaintiff is required to present expert testimony to prove his claim. Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167, 172 (Nev. 2016). In lack of informed consent cases, the plaintiff must prove a doctor failed to provide information the medical community would require a patient to know before giving consent. Id. This involves assessing a doctor's degree of care and skill, which is often beyond the knowledge of a lay jury and requires expert evidence. Mayr, 795 S.E.2d at 736; see also Winkjer v. Herr, 277 N.W.2d 579, 585 (N.D. 1979) (holding expert evidence is generally required for medical malpractice claims under the common law). Expert evidence is not required for a plaintiff to prove medical battery because a lay jury can determine whether a person provided no consent at all to a touching. Humboldt Gen Hosp., at 172. The differences between the torts are clear in theory. The differences become blurry in practice when cases present scope-of-consent fact patterns. See, e.g., Kohoutek v. Hafner, 383 N.W.2d 295, 298 (Minn. 1986) (stating battery exists when a physician fails to disclose "a very material aspect of the nature and character" of a procedure).

A

[¶12] Severance asserts his battery claim is a viable cause of action recognized by the common law. The district court rejected his argument because this Court has not acknowledged "a clear difference" between "no consent" and "inadequate consent," and the law "pertaining to medical battery" is currently "unsettled."

[¶13] The tort of battery exists at common law. Felder v Casey, 487 U.S. 131, 146 n. 3 (1988); see also Mills v. Rogers, 457 U.S. 291, 294 n. 4 (1982) (stating the right to refuse medical treatment emerged in part from the common law tort of battery). "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person. . . ." Union Pac. Ry. Co. v Botsford, 141 U.S. 250, 251-52 (1891) (discussing battery in context of the common law). The common law is "the basic law applicable to civil rights and remedies not defined by [ ] statute." Estate of Conley, 2008 ND 148, ¶ 25, 753 N.W.2d 384 (quoting Tarpo v. Bowman Pub. Sch. Dist., 232 N.W.2d 67, 70 (N.D. 1975)). Battery is not defined by statute in North Dakota. Under our case law, a person is civilly liable for offensive-contact battery if he or she (1) "acts intending to cause a harmful or offensive contact with the person of the other or a...