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Haugenoe v. Bambrick6/6/2003
their second contention.
III
[ ] We need not address the appropriate standard of review under N.D.C.C. § 28-01-46, because the Haugenoes have not met the requirements of the statute as a matter of law. See Larson v. Hetland, 1999 ND 98, 13 n.2, 593 N.W.2d 785.
IV.
[ ] Section 28-01-46, N.D.C.C., requires a court to dismiss a malpractice action against a physician, nurse, or hospital, "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 for good cause shown by the plaintiff." The statute attempts to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to support the allegations of negligence in the early stages of litigation. See Larson, 1999 ND 98, 12, 593 N.W.2d 785. However, expert testimony is not required "to establish a duty, the breach of which is a blunder so egregious that a layman is capable of comprehending its enormity." Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D. 1993) (quoting Arneson v. Olson, 270 N.W.2d 125, 132 (N.D. 1978)). The statute, therefore, does not apply to claims involving "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." N.D.C.C. § 28-01-46.
[ ] The Haugenoes argue that their negligence claim against Dr. Bambrick falls within the obvious occurrence exception to N.D.C.C. § 28- 01-46, and therefore, they were not required to produce an expert opinion within three months of the commencement of the action. The healthcare negligence alleged against Dr. Bambrick, however, is not the type of claim that falls within the obvious occurrence exception. We have previously explained that technical surgical procedures, like the one performed in this case, are recognized as being beyond the understanding of a layperson. See Larsen, 498 N.W.2d at 195. To establish a prima facie case of medical malpractice under N.D.C.C. § 28- 01-46, the Haugenoes needed to produce "expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of." Id. at 192 (citations omitted). Because no admissible expert opinion was ever provided by the Haugenoes, they failed to meet the requirements of N.D.C.C. § 28-01-46 as a matter of law. See Larson, 1999 ND 98, 13, 593 N.W.2d 785. Therefore, we affirm the trial court's dismissal of the Haugenoes' negligence claim against Dr. Bambrick.
V.
[ ] The Haugenoes' complaint also contained a claim against Mercy Medical Center alleging:
That Defendant Mercy Medical Center negligently gave Defendant William S. Bambrick III privileges in its facilities. That Defendant Mercy Medical Center failed to adequately investigate Defendant William S. Bambrick III's history, training and experience before granting him privileges. That despite a number of problems in the medical care provided by Defendant William S. Bambrick's , Defendant Mercy Medical Center allowed Defendant William S. Bambrick to remain on staff and retain privileges until May, 2001.
[ ] In the Haugenoes' brief in opposition to Mercy Medical Center's motion to dismiss or for summary judgment, they argue: "Mercy obviously granted privileges to an incompetent physician to practice medicine in its facility." In their outline of oral argument, the Haugenoes assert, "it is obvious that [Mercy Medical Center] should not have been allowed to have a physici
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