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Haugenoe v. Bambrick6/6/2003
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[ ] Robert and Tracey Haugenoe appeal from the July 19, 2002, order dismissing their complaint against Dr. William Bambrick and Mercy Medical Center without prejudice. We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.
I.
[ ] A dismissal without prejudice is ordinarily not appealable because either party may commence another action. See Community Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d 364, 365 (N.D. 1993). "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." Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, 12, 632 N.W.2d 407. In this case, where the statute of limitations has run, a dismissal "effectively forecloses litigation in the courts of this state." Jaskoviak v. Gruver, 2002 ND 1, 8, 638 N.W.2d 1 (quoting Rodenburg, at 12). We conclude the December 2, 2002, judgment of dismissal is, therefore, appealable. See Jaskoviak, at 8.
II
[ ] On May 19, 1999, Robert Haugenoe was treated at Mercy Medical Center for a severely comminuted compound fracture of his right elbow and a fracture of his right wrist. Dr. William Bambrick performed a surgical open reduction and internal fixation of the elbow. The Haugenoes claim that after the surgery, Dr. Bambrick assured them the elbow was in proper alignment, when a second opinion from a doctor in Montana revealed the elbow was misaligned and missing bone fragments.
[ ] The Haugenoes commenced an action on May 25, 2001. Their complaint contained three counts. The first count alleged "healthcare negligence" against both Dr. Bambrick and Mercy Medical Center. The Haugenoes alleged that Dr. Bambrick was negligent in his performance of the surgery and follow-up treatment of the right elbow and that Mercy Medical Center was negligent in giving Dr. Bambrick privileges at its facilities. The second count was an informed consent claim against Dr. Bambrick. The Haugenoes alleged that Dr. Bambrick failed to adequately inform Haugenoe of the risks of the surgery and follow-up treatment. In the third count, the Haugenoes alleged that due to Dr. Bambrick's "healthcare negligence," Tracey Haugenoe suffered a loss of her husband's consortium.
[ ] Mercy Medical Center and Dr. Bambrick filed their answers to the complaint on June 13, 2001, and July 3, 2001, respectively, and served interrogatories on the Haugenoes on June 11, 2001, and July 2, 2001, respectively. Both Mercy Medical Center and Dr. Bambrick specifically inquired as to whether the Haugenoes had obtained an admissible expert opinion as required by N.D.C.C. § 28-01-46. Mercy Medical Center's interrogatories read as follows:
INTERROGATORY NO. 10: Have you obtained an admissible expert opinion to support your allegations of professional negligence against Mercy Medical Center pursuant to N.D.Cent. Code § 28- 01-46?
INTERROGATORY NO. 11: If your answer to the immediately preceding interrogatory is in the affirmative, please attach a copy of the expert opinion affidavit referenced in § 28-01-46.
Dr. Bambrick's interrogatories read as follows:
INTERROGATORY NO. 44: Have you obtained an admissible expert opinion to support your allegations of professional negligence against William S. Bambrick, III, M.D., as required by N.D.C.C. § 28-01-46?
INTERROGATORY NO. 45: If your answer to the foregoing Interrogatory was in the affirmative, state:
a. The expert's name and address;
b. The expert's profession, business or occ
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