Opinion
Civil No. A1-03-15, Docket Number: 19
December 31, 2003
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE
Summary: The defendant filed a motion for summary judgment to dismiss a medical malpractice action on grounds that the plaintiff had failed to obtain an admissible expert opinion to support his allegation of professional negligence as required by section 28-01-46 of the North Dakota Century Code. The Court construed the defendant's motion as a motion to dismiss and granted the defendants' motion to dismiss without prejudice.
On December 15, 2003, the defendants, Charles Dahl, M.D., and the Bone Joint Center, P.C., filed a motion for summary judgment in this medical malpractice action on the basis that the Plaintiff had not disclosed an expert witness to support his allegations of negligence. The plaintiff, Ervin Schaaf, responded by contending that summary judgment was inappropriate in this matter. Schaaf states that he had secured an expert witness but now wishes to substitute another. Schaaf contends that the appropriate action is for the Court to dismiss the action without prejudice.
Under North Dakota law, a plaintiff who commences a medical malpractice action must file an expert affidavit with the Court within three (3) months of the commencement of a lawsuit. Section 28-01-46, N.D.C.C. The statute provides in relevant part as follows:
Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases. Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion 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 expert's affidavit must identify the name and business address of the expert, indicate the expert's field of expertise, and contain a brief summary of the basis for the expert's opinion. This section does not apply to alleged lack of informed consent, 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.
The plaintiff, Ervin Schaaf, commenced this action on February 4, 2003. Under North Dakota law, Schaaf was required to obtain "an admissible expert opinion" to support the allegations of professional negligence against Dr. Dahl and the Bone Joint Center by May 4, 2003, or at such later date as set by the Court for good cause shown by the plaintiff. By agreement, the parties extended the deadline for disclosure of an expert witness to October 13, 2003.
In this case, the 3-month period ran on May 4, 2003, and the extension of time ran on October 13, 2003. There is no dispute that the Plaintiff did not file an affidavit within the 3-month period or within the extended period as provided by the statute. Although the Defendants' caption their motion as a motion for summary judgment rather than a motion to dismiss, the Court will treat the motion as a motion to dismiss. Section 28-01-46 of the North Dakota Century Code expressly states that the appropriate remedy for failure to disclose an expert witness is to dismiss the action without prejudice.
Accordingly, the Court GRANTS the Defendants' Motion to Dismiss. (Docket No. 14). The Court ORDERS that the Plaintiff's Claims be DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.