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Haugenoe v. Bambrick6/6/2003
upation, and the field of expertise;
c. The facts upon which you rely to support your contention that this expert's opinion is "admissible" as that term is used in N. D. C. C. § 28-01-46;
d. Produce the expert's affidavit containing the information required by § 28-01-46.
Both Mercy Medical Center and Dr. Bambrick granted the Haugenoes extensions of time to answer the interrogatories and to provide an admissible expert opinion. The record reflects that Mercy Medical Center gave the Haugenoes until November 15, 2001, to respond and that Dr. Bambrick gave the Haugenoes until January 4, 2002, to respond. However, the Haugenoes never provided answers to either of the interrogatories and never provided any admissible expert opinion to either Mercy Medical Center or Dr. Bambrick.
[ ] On February 4, 2002, Dr. Bambrick filed a motion to dismiss the Haugenoes' medical negligence claims because the Haugenoes had not provided an admissible expert opinion as required by N.D.C.C. § 28-01- 46. Mercy Medical Center filed a similar motion to dismiss or for summary judgment on February 6, 2002. The Haugenoes filed an answer brief to Dr. Bambrick's motion to dismiss on February 20, 2002, claiming "N.D.C.C. § 28-01-46 does not apply to the present case where Bambrick misrepresented the condition of the elbow to Haugenoe." On March 21, 2002, the Haugenoes filed a brief in opposition to Mercy Medical Center's motion to dismiss or for summary judgment, arguing N.D.C.C. § 28-01-46 was not applicable to the case because Dr. Bambrick's misrepresentation of the condition of the elbow was an "obvious occurrence" under the statute.
[ ] The trial court attempted to hold a hearing on Mercy Medical Center's and Dr. Bambrick's motions. However, a hearing was never held because of repeated cancellations by the Haugenoes. Instead, the parties submitted outlines of their oral arguments, and the court considered the matter based on the outlines. On July 19, 2002, the trial court entered its order dismissing the Haugenoes' entire complaint without prejudice. The court stated:
It is undisputed that, to date, Haugenoes have not supplied Bambrick and Mercy with an admissible expert opinion in support of their professional negligence claims. It is also undisputed that: (a) the statutory time period for submitting an admissible expert opinion has long since expired; (b) Haugenoes obtained several extensions of time to answer interrogatories and submit an admissible expert opinion; and, (c) the expert opinion was not forthcoming even after several assurances from Haugenoes' counsel that the same would be provided.
The Court further finds that the "obvious occurrence exception" provides no relief to Haugenoes in this situation-----as there can be little question that, "An open reduction and internal fixation are beyond the understanding of a layperson and require expert testimony to explain the complicated, technical surgical procedure."
Accordingly, the Court is left with no alternative but to dismiss Haugenoes' complaint, without prejudice.
[ ] The Haugenoes filed their notice of appeal on September 16, 2002. The judgment dismissing the complaint without prejudice was filed on December 2, 2002. On appeal, the Haugenoes first contend that the negligence claim against Dr. Bambrick should not have been dismissed because the alleged healthcare negligence falls within the "obvious occurrence" exception to N.D.C.C. § 28-01-46. They further contend that the informed consent claim should not have been dismissed because N.D.C.C. § 28-01-46 is not applicable to informed consent claims. We disagree with the Haugenoes' first contention but agree with
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