Filed 6/17/03 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2003 ND 103

Karen S. Holman and 

Michael A. Holman, Plaintiffs and Appellants

v.

Douglas D. Berglund, M.D., 

and the Q & R Clinic, Defendants and Appellees

No. 20020329

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Per Curiam.

Donald L. Peterson (argued) of Peterson Law Office, P.O. Box 96, Minot, N.D. 58702-0096, for plaintiffs and appellants.

Lance D. Schreiner and Tracy Vigness Kolb (argued) of Zuger Kirmis & Smith, P.O. Box 1695, Bismarck, N.D. 58502-1695, for defendants and appellees.

Holman v. Berglund

No. 20020329

Per Curiam.

[¶1]Karen S. Holman and her spouse, Michael A. Holman, appeal the trial court’s dismissal of their negligence claim and lack of informed consent claim against  Douglas Berglund, M.D., and Q & R Clinic.  We affirm in part, reverse in part, and remand for further proceedings.

[¶2]On November 2, 1999, Dr. Berglund surgically treated Karen Holman for ulcerative colitis by removing her large intestine and creating a stoma.  On October 31, 2001, the Holmans sued Dr. Berglund and Q & R Clinic for malpractice, claiming Dr. Berglund negligently punctured Karen Holman’s vaginal cuff and bladder, causing urine to drain through the opening.  The Holmans also alleged lack of informed consent, among other claims.  Dr. Berglund and Q & R Clinic moved to dismiss the negligence claim because the Holmans failed to provide an expert opinion to support it within three months of the commencement of the action as required by N.D.C.C. § 28-01-46.  After a hearing on the motion, the trial court dismissed all of the Holmans’ claims against Dr. Berglund and Q & R Clinic. The Holmans appeal.

[¶3]The Holmans argue (1) the trial court erred in dismissing their negligence claim under N.D.C.C. § 28-01-46, and (2) the trial court erred in dismissing their lack of informed consent claim because the claim had not been heard by the trial court.  We summarily affirm, summarily reverse, and remand for proceedings consistent with this opinion.

[¶4]The Holmans argue their negligence claim should not have been dismissed by the trial court under N.D.C.C. § 28-01-46 because the negligent act at issue was an obvious occurrence, and therefore, an expert opinion was not required.  N.D.C.C. § 28-01-46 provides:

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. . . . 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.

Because the Holmans did not obtain an admissible expert’s opinion as required by N.D.C.C. § 28-01-46 and the negligent act at issue does not fall within the statute’s obvious occurrence exception, they failed to meet its requirements as a matter of law.  We summarily affirm the trial court’s dismissal of their negligence claim under N.D.R.App.P. 35.1(a)(7).  Haugenoe v. Bambrick, 2003 ND 92, ¶ 11.

[¶5]The Holmans argue the trial court erred in dismissing their lack of informed consent claim because it had not been heard by the trial court.  In their pre-trial motion to dismiss, Dr. Berglund and Q & R Clinic moved only for dismissal of the Holmans’ negligence claim under N.D.C.C. § 28-01-46.  The trial court dismissed all of the Holmans’ claims, including the claim for lack of informed consent, which falls within the statutory exception under N.D.C.C. § 28-01-46.  Because the trial court improperly dismissed the Holmans’ lack of informed consent claim without a hearing, we summarily reverse and remand under N.D.R.App.P. 35.1(b).  Haugenoe, 2003 ND 92, ¶ 18.

[¶6]Dale V. Sandstrom, Acting C.J.

William A. Neumann

William F. Hodny, S.J.

Mary Muehlen Maring

Carol Ronning Kapsner

[¶7]The Honorable William F. Hodny, S.J., sitting in place of VandeWalle, C.J., disqualified.