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Haugenoe v. Bambrick6/6/2003
an with a history such as Dr. Bambrick of prior claims and obvious inadequacies in both ability and veracity."
[ ] On appeal, the Haugenoes state their issue broadly: "The District Court erred in dismissing this action pursuant to N.D.C.C. § 28-01-46." In their statement of facts, the Haugenoes merely state: "Mercy Hospital allowed Dr. Bambrick staff privileges despite four professional liability claims paid in the State of Florida. The State of North Dakota Board of Medical Examiners suspended Dr. Bambrick's license to practice medicine by stipulation in July, 2000." There is no argument presented, however, why it was error for the trial court to apply N.D.C.C. § 28-01-46 to the Haugenoes' claim against Mercy Medical Center. "Issues not briefed by an appellant are deemed abandoned." Anderson v. Heinze, 2002 ND 60, 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, 13, 578 N.W.2d 514). Therefore, we affirm the trial court's dismissal of the Haugenoes' negligence claim against Mercy Medical Center.
VI.
[ ] The Haugenoes' final argument on appeal is that the trial court improperly dismissed their informed consent claim against Dr. Bambrick. On July 23, 2002, four days after the trial court had filed its order dismissing the Haugenoes' entire complaint without prejudice, Dr. Bambrick's counsel wrote a letter to the trial court, pointing out that although the court had dismissed the Haugenoes' entire complaint, "the motion we brought on behalf of Dr. Bambrick was for dismissal of the Haugenoes' medical negligence claim, not the entire complaint. The motion was brought pursuant to N.D.C.C. § 28-01-46 which by its language does not apply to alleged failure to obtain informed consent." Unsure as to whether the Haugenoes still intended to pursue the informed consent claim, Dr. Bambrick's counsel sent a copy of this letter to the Haugenoes' counsel, inviting him to "clarify this matter for the court before a final judgment is entered." Counsel for Dr. Bambrick also enclosed a proposed order for judgment for the trial court to sign if "the court finds it appropriate to dismiss the entire complaint."
[ ] On September 16, 2002, the trial court sent another copy of the July 23, 2002, letter to the Haugenoes' counsel advising, " f any clarification is needed please respond before judgment is entered." That same day, the Haugenoes filed their notice of appeal. The Haugenoes never responded to the July 23, 2002, letter from Dr. Bambrick's counsel or the September 16, 2002, letter from the trial court. On November 22, 2002, the trial court signed the order for judgment that had been drafted by Dr. Bambrick's counsel. Judgment was entered on December 2, 2002.
[ ] Dr. Bambrick filed a motion to dismiss the negligence claims against him based on the Haugenoes' failure to disclose an expert witness within three months of the commencement of the action. Dr. Bambrick never made a motion for summary judgment on the issue of informed consent and admitted his motion to dismiss did not apply to the Haugenoes' claim of failure to obtain informed consent. Therefore, whether the Haugenoes' informed consent claim against Dr. Bambrick should be dismissed was never before the trial court on its merits. We do not condone the Haugenoes' attorney's failure to respond to the requests for clarification made by the trial court and opposing counsel. A simple response by the Haugenoes' attorney may have prevented an appeal on this issue. Nevertheless, we decline to hold that the trial court's letter asking if there needs to be a clarification of its order raised this issue on the merits. We have previously cautioned against such informal letter practice. See Engh v. Engh, 2003 ND 5,
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