Filed 9/24/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 234

Margaret Cichos, individually, and as the 

surviving spouse of Bradley Cichos, and as 

Personal Representative of the Estate of 

Bradley Cichos, deceased, Lyman Halvorson, 

individually, Kenzie Halvorson, 

individually, Landon and Sierra Halvorson 

as parents and natural guardians of A.H. 

DOB 2011, a minor child, each individually 

and collectively as assignees of Lyle Lima, 

Lyle Lima, individually, Plaintiffs and Appellants

v.

Dakota Eye Institute, P.C., Dakota 

Eye Institute, LLP, Briana Bohn, O.D., 

individually, Defendants and Appellees

No. 20180347

Appeal from the District Court of Pierce County, Northeast Judicial District,

the Honorable Donovan J. Foughty, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Tufte, Justice.

Daniel M. Traynor (argued) and Jonathon F. Yunker (appeared), Devils Lake,

N.D., for plaintiff and appellant Margaret Cichos.

Timothy M. O’Keeffe (on brief), Fargo, N.D., for plaintiffs and appellants

Lyman and Kenzie Halvorson.
Mark V. Larson (appeared), Minot, N.D., for plaintiffs and appellants Landon

and Sierra Halvorson.

Jason R. Vendsel (on brief), Minot, N.D., for plaintiff and appellant Lyle Lima.

Tracy V. Kolb (argued), Bismarck, N.D., for defendants and appellees.

2
Cichos v. Dakota Eye Institute, P.C.

No. 20180347

Tufte, Justice.

[¶1] Plaintiffs appeal from the district court’s judgment and amended judgment

dismissing their complaint. The parties dispute whether a physician in North Dakota

owes a duty to third parties to warn a patient regarding vision impairments to driving;

whether medical malpractice claims are assignable; and whether the medical expert

affidavit met the requirements of N.D.C.C. § 28-01-46. We conclude physicians do

not owe a duty to third parties under these circumstances, Lima’s malpractice claim

is assignable, and the expert affidavit was sufficient to avoid dismissal. We remand

for further proceedings.

I

[¶2] In their first amended complaint, the plaintiffs alleged the following facts. In

May 2016, Lyle Lima was driving his truck on a highway when he collided with a

horse-drawn hay trailer. The collision killed one of the five passengers on the horsedrawn trailer and injured the others. In April 2015, a doctor at Dakota Eye Institute

determined Lima to be legally blind, prepared a certificate of blindness, and instructed

Lima and his spouse that he was not to drive. In April 2016, about six weeks before

the collision, a second Dakota Eye Institute doctor, Briana Bohn, examined Lima. Dr.

Bohn measured Lima’s vision as being “improved” and “told Lyle Lima he could

drive, with some restrictions.” Plaintiffs claimed Dr. Bohn was liable for medical

malpractice because Lima’s eyesight, although improved, was still below the

minimum vision standards required to operate a vehicle in North Dakota under N.D.

Admin. Code ch. 37-08-01.

[¶3] The injured parties and their representatives made a claim against Lima, which

he could not fully satisfy. In partial settlement of the claim, Lima assigned his medical

malpractice claim against Dakota Eye Institute and any recovery he might receive to

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the other plaintiffs. The injured parties and Lima then filed this suit individually and

as assignees of Lima against Dr. Bohn, Dakota Eye Institute P.C., and Dakota Eye

Institute LLC. The defendants filed two motions to dismiss: one arguing Lima’s

claims were not assignable and should be dismissed under N.D.R.Civ.P. 12(b)(6), and

one arguing the affidavit failed to meet the requirements of N.D.C.C. § 28-01-46. At

the hearing on the motions, the parties also argued whether North Dakota law extends

liability for medical malpractice to a third party who was not a patient. The district

court granted the motions to dismiss.

II

[¶4] In Ramirez v. Walmart, we explained:

A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the legal

sufficiency of the claim presented in the complaint. On appeal, we

construe the complaint in the light most favorable to the plaintiff and

accept as true the well-pleaded allegations in the complaint. This Court

will affirm a judgment dismissing a complaint for failure to state a

claim under N.D.R.Civ.P. 12(b)(6) if we cannot discern a potential for

proof to support it. We review a district court’s decision granting a

motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo.

2018 ND 179, ¶ 7, 915 N.W.2d 674 (internal citations and quotation marks omitted).

III

[¶5] Appellants argue Dr. Bohn owed a duty to the injured parties to warn Lima that

his vision was below the minimum standard to operate an automobile. Third party

liability for medical malpractice is an issue of first impression in North Dakota.

Appellants cite several cases from other jurisdictions in support of a duty to third

parties in various circumstances. Many of these cases involve physicians prescribing

or administering medications and failing to warn about side effects. Such cases are of

limited persuasive value here where no medication was administered to Lima. In

situations similar to this one, other jurisdictions are divided, but we find more

persuasive those that state there is no third party duty to warn a patient based on

public policy considerations.

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[¶6] “[I]n a negligence action, whether or not a duty exists is generally an initial

question of law for the court.” Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d

343 (quoting APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34

(internal citation omitted)).

The court must balance the following factors when determining

the existence of duty in each particular case: (1) foreseeability of

harm to plaintiff; (2) degree of certainty that plaintiff suffered injury;

(3) closeness of connection between defendant’s conduct and injury

suffered; (4) moral blame attached to defendant’s conduct; (5) policy

of preventing future harm; (6) extent of burden to defendant and the

consequences to the community of imposing a duty to exercise care

with resulting liability for breach; and (7) availability, cost and

prevalence of insurance for the risk involved.

Bjerk, at ¶ 18 (quoting Hurt v. Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551 (quoting

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 n.24 (5th

ed. 1984))). Although “[i]mposition of a duty on these facts is a policy-laden question

better suited to legislative judgments . . . courts must sometimes consider public

policy in determining whether a duty of care applies in a particular situation.” Bjerk,

at ¶ 24.

[¶7] In Kolbe v. State, 661 N.W.2d 142 (Iowa 2003), Charles Kolbe was struck by

a vehicle driven by Justin Schulte. Id. at 143. Schulte had a form of macular

degeneration called Stargardt’s Disease which leaves him blind when looking directly

ahead and requires him to use his peripheral vision to see. Id. at 143-44. Three doctors

wrote letters to the Iowa Department of Transportation (“IDOT”) recommending

Schulte be permitted to drive with restrictions. Id. Schulte collided with Kolbe while

Kolbe and his wife were riding bicycles. Id. at 145. The Kolbes sued Schulte’s

doctors under a theory of negligence in recommending to IDOT that Schulte be

permitted to drive with restrictions. Id.

[¶8] The Kolbe court analyzed the issue of “whether a physician owes a duty to

persons not within the physician/patient relationship.” Id. Three factors were weighed

to determine if there was a duty: (1) the parties’ relationship, (2) reasonable

foreseeability of harm to the injured person, and (3) public policy considerations.

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Id. at 146. The court weighed these factors “under a balancing approach and not as

three distinct and necessary elements. . . . [W]hether a duty exists is a policy

decision.” Id. “More important than [the first two factors] is the issue of the public

policy concerns implicated by imposing liability on physicians under such

circumstances. As we stated above, the existence of a duty depends largely on public

policy.” Id. at 147. The court noted there was no privity between the Kolbes and

the doctors and the harm to Kolbe was not a foreseeable result of the doctors’

recommendations. Id. at 146-47.

[¶9] The Kolbe court expressed particular concern regarding how physicians’

concerns over third party liability might affect how they treat their patients, thus

compromising treatment. Id. at 148-49. A “therapist might . . . find it necessary to

deviate from the treatment [he] would normally provide.” Id. at 149 (quoting J.A.H.

v. Wadle and Associates, 589 N.W.2d 256, 263 (Iowa 1999)). Such incentives would

destroy the patient-physician relationship. Id. “[P]hysicians may become prone to

make overly restrictive recommendations concerning the activities of their patients.”

Id. (quoting Schmidt v. Mahoney, 659 N.W.2d 552, 555 (Iowa 2003)). The court

concluded that at “the public policy level, a physician does not have a duty to ‘protect

the entire public from any harm that might result from his or her patient’s actions.’”

Id. at 150 (quoting Crosby by Crosby v. Sultz, 592 A.2d 1337, 1344 (Pa. Super. Ct.

1991)). “Rather, physicians must be able to fulfill their duty to patients without fear

of third party liability claims for the acts of patients over which physicians have no

control.” Id. The physician’s primary obligation is to treat the patient. Id. at 149.

[¶10] In Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), Witthoeft was

bicycling when she was struck by a vehicle driven by Helen Myers. Id. at 624. Myers

had been examined by Dr. Kiskaddon, an ophthalmologist, who determined Myers

had a combined visual acuity of 20/80. Id. The plaintiffs sued Dr. Kiskaddon for

failing to inform Myers that she was “not ‘legally authorized’ to drive a motor

vehicle” and for failing to report the results of Myers’s examination to the DOT as

required by law. Id. at 624-25. The court analyzed whether “a physician may be held

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liable for injuries suffered by a third party in an automobile accident caused by the

physician’s patient.” Id. at 624. “[S]pecifically, will an ophthalmologist be held liable

to a third party where the ophthalmologist failed to inform his patient . . . of the

patient’s poor visual acuity” and she injured someone while driving. Id. The court

stated, “[W]e believe that it is an unreasonable extension of the concepts of duty and

foreseeability to broaden a physician’s duty to a patient and hold a physician liable

to the public at large within the factual scenario of this case.” Id. at 630. The court

continued, “This is especially true where, as here, Dr. Kiskaddon did not cause or

aggravate a medical condition that affected the patient’s driving and the patient was

necessarily aware of her medical condition.” Id.

[¶11] In Jarmie v. Troncale, 50 A.3d 802 (Conn. 2012), Dr. Troncale diagnosed and

treated Mary Ann Ambrogio for kidney and liver aliments, including hepatic

encephalopathy, which impaired her ability to safely operate a motor vehicle. Id. at

805. Ambrogio crashed into the plaintiff, John Jarmie. Id. The plaintiff alleged his

injuries were a result of Dr. Troncale’s failure to warn Ambrogio not to drive. Id.

The court analyzed duty by first considering foreseeability. Id. at 809. However, a

“simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself

mandate a determination that a legal duty exists.” Id. “Many harms are quite literally

foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must

be made, for we recognize that duty is not sacrosanct in itself but is only an

expression of the sum total of those considerations of policy which lead the law to say

that the plaintiff is entitled to protection.” Id. at 809-10. “The final step in the duty

inquiry, then, is to make a determination of the fundamental policy of the law, as to

whether the defendant’s responsibility should extend to such results.” Id. at 810.

[¶12] The Jarmie court examined Connecticut precedent and found no support for

extension of duty beyond the patient-physician relationship. Id. at 811. Connecticut

courts previously found harm foreseeable only when the victim was identifiable. Id.

at 811-14. The court then turned to public policy considerations supporting each side.

The “final step in the duty inquiry is to make a determination of the fundamental

5
policy of the law, as to whether the defendant’s responsibility should extend to such

results.” Id. at 814. The Jarmie court determined public policy weighed in favor of

the defendant physician because physicians “[1] do not expect to be held accountable

to members of the general public for decisions regarding patient treatment, [2] optimal

treatment of patients is frustrated by extending a physician’s liability to unidentifiable

third persons and [3] extending liability would lead to increased litigation and higher

health care costs.” Id.

[¶13] The Jarmie court determined that putting physicians under third party duty

would not meet the purposes of tort compensation, i.e., compensation of innocent

parties, shifting loss to responsible parties, and deterrence of wrongful conduct. Id.

When examining compensation, the court noted a victim could receive compensation

elsewhere, for example, through the driver’s insurance. Id. at 815. The court

determined the burden on physicians and the physician-patient relationship, and

potentially high costs of litigation, would not necessarily be outweighed by the

financial cost to victims. Id. Even if the physician has not warned the driver, he may

not be responsible for an accident if the driver was engaging in other activities such

as speeding or driving while intoxicated. Id. Looking to loss distribution, the court

expressed concern that a physician’s failure to warn a patient prior to an accident

could result in unfair liability to the physician. Id. A driver may not heed the warning,

so the Jarmie court reasoned that a physician would be liable when the harm might

not have been prevented anyway. Id. “With respect to the deterrence of wrongful

conduct, the proximate cause of a driving accident is the conduct of the driver.” Id.

A patient may drive despite a warning, limiting deterrence of wrongful conduct; thus

liability for failure to warn would require more of physicians than they already owe

to their patients. Id. at 815-16. Liability would also “interfere with the physicianpatient relationship and give rise to increased litigation.” Id. at 816.

[¶14] The Jarmie court looked at specific factors: “(1) the normal expectations of the

participants in the activity under review; (2) the public policy of encouraging

participation in the activity, while weighing the safety of the participants; (3) the

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avoidance of increased litigation; and (4) the decisions of other jurisdictions.” Id.

First, within a physician-patient relationship, the physician has a duty to the patient

under common law principles, but this duty traditionally does not extend to third

parties. Id. at 817. Second, the court said such an extension of liability would be

“problematic, at best, because it would be inconsistent with the physician’s duty of

loyalty to the patient, would threaten the inherent confidentiality of the physicianpatient relationship and would impermissibly intrude on the physician’s professional

judgment regarding treatment and care of the patient.” Id. at 818. Extension of duty

would threaten confidentiality and affect how physicians treat their patients. Id. at

819, 820, 822. Physicians may advise patients against any activity that might harm

a third party, giving far more restrictive advice than necessary in order to avoid

litigation. Id. at 820-21. A physician who faces potential liability may give advice

based not on an individual patient’s condition, but rather on reducing the physician’s

risk of exposure to unknown members of the public who may interact with the patient.

Id. at 822. In addition, an increase in litigation would be likely because a new

category of plaintiffs arises when liability is extended to physicians, potentially

driving up healthcare costs. Id. at 822-23. Finally, the court determined there was no

clear trend among other jurisdictions. Id. at 826.

[¶15] In addition to these three decisions, other jurisdictions have also considered

extension of third party duty in similar circumstances and also declined to impose

such a duty. See Medina v. Hochberg, 987 N.E.2d 1206 (Mass. 2013) (distinguishing

duty to warn patient about side effects of treatment while rejecting asserted duty to

warn patients about driving risks from underlying medical condition) ; Schmidt v.

Mahoney, 659 N.W.2d 552 (Iowa 2003) (affirming dismissal of third party negligence

claim against physician who advised a patient with seizure disorder that she could

safely drive). Although the appellants cite several cases in support of their arguments,

they are not persuasive. Most of the cited cases involve facts where the physician has

prescribed medications or administered medications, vaccinations, or dialysis and

failed to warn about side effects of the treatment given to the patient.

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[¶16] On the facts here, we consider more persuasive the cases that examine and

reject a duty to third parties arising from a failure to warn a patient having a medical

condition that increases driving risk. The facts alleged in the complaint support an

inference of foreseeability in the sense that a person with impaired vision who drives

a motor vehicle foreseeably will cause a traffic accident. However, the defendants did

not treat or provide medication to Lima that led to the vision impairment. We find the

public policy concerns expressed in the decisions discussed above to be

determinative, and we decline to extend a physician’s duty to encompass the situation

presented here. We conclude a physician has no duty to third parties arising from the

physician’s failure to warn a patient about driving risks resulting from the patient’s

medical condition.

IV

[¶17] Next the plaintiffs argue that the district court erred in dismissing their

collective claim as assignees of Lima’s claims against the defendants. Assignability

of a chose in action has long been recognized in North Dakota law. See Roberts v.

First Nat’l Bank of Fargo, 8 N.D. 474, 79 N.W. 993 (1899).

The right to bring an action or recover a debt or money is a

chose in action, and a chose in action is a form of property. [A] “chose

in action” is a legal claim or a right to bring an action to receive or

recover a debt, money, or damages by a judicial proceeding, and is

intangible personal property. An assignment transfers a property right,

interest, or claim from the assignor to the assignee. Generally, a person

may assign a legal claim or a chose in action.

In re Guardianship of V.A.M., 2015 ND 247, ¶ 17, 870 N.W.2d 201 (internal citations

omitted). An absolute assignment generally divests the assignor of all control and

right to the cause of action, and the assignee is entitled to control the cause of action

and to receive the benefits. Id. at ¶ 18. “There is a general right to assign common law

and statutory rights unless there is an express prohibition in a statute or a showing that

an assignment would clearly offend an identifiable public policy.” 6 Am. Jur. 2d

Assignments § 7 (2019). Exceptions to assignability include actions of “wrongs done

8
to the person, the reputation, of the feelings of the injured party, and to contracts of

a purely personal nature, like promises of marriage.” Goodley v. Wank & Wank, Inc.,

133 Cal. Rptr. 83, 84-85 (Cal. Ct. App. 1976). Thus, we start our analysis from the

premise that claims are generally assignable and determine whether there is an

exception that applies here.

[¶18] Defendants argue that medical malpractice claims are not assignable because

they are intensely personal claims like personal injury claims that are generally not

assignable and also because they stem from the duties in the confidential physicianpatient relationship. The defendants compare the current medical malpractice claim

to personal injury claims and legal malpractice claims, both of which are generally not

assignable. See, e.g., Regie de l’assurance Auto. du Quebec v. Jensen, 399 N.W.2d

85, 89 (Minn. 1987) (personal injury claim not assignable); Goodley v. Wank & Wank,

Inc., 133 Cal. Rptr. 83 (Cal. Ct. App. 1976) (legal malpractice claim not assignable);

AMCO Ins. Co. v. All Solutions Ins. Agency, LLC, 198 Cal. Rptr. 3d 687, 694 (Cal.

Ct. App. 2016) (“the exceptions to the general rule favoring assignability of causes

in action include tort causes of action for wrongs done to the person, the reputation

or the feelings of an injured party . . . [or] legal malpractice claims and certain types

of fraud claims”); 6 Am. Jur. 2d Assignments § 57 (2019). Plaintiffs argue that Lima’s

claim is purely economic because he suffered no personal injury and his damages

consist solely of money he owes to others as a result of the claimed malpractice.

[¶19] We have not previously addressed whether a medical malpractice claim is

excepted from the general rule that claims may be assigned. However, in the context

of Medicaid, we have acknowledged specific statutory authority providing for

assignment of “medical costs incurred,” including malpractice claims for pain and

suffering. Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, 651

N.W.2d 611. The issue presented here is one of first impression in North Dakota.

[¶20] The longstanding general rule is that on “grounds of public policy, the sale or

assignment of actions for injuries to the person are void.” North Chicago St. R. Co.

v. Ackley, 49 N.E. 222, 225 (Ill. 1897). Here, there is no assignment of an action for

9
personal injury to Lima, only an assignment of his claim for reimbursement from

defendants. The “injuries resulting [here] are not personal injuries, in the strict sense

of injuries to the body, feelings or character.” Joos v. Drillock, 338 N.W.2d 736, 739

(Mich. Ct. App. 1983). Lima’s claim against the defendants derives from his liability

to the injured parties for money damages resulting from the collision. If medical

malpractice by the defendants is the proximate cause of monetary damages Lima

became obligated to pay, it implicates none of the public policy concerns typically

associated with personal injury claim assignments. See Ackley, 49 N.E. at 225; Lingel

v. Oblin, 8 P.3d 1163, 1166-67 (Ariz. Ct. App. 2000); Dodd v. Middlesex Mut.

Assurance Co., 698 A.2d 859, 864 (Conn. 1997).

[¶21] Because of the purely economic nature of the medical malpractice claim here

and the absence of any claim for personal injury to Lima, we conclude it is assignable.

See Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 327 (Ariz. Ct. App.

1996) (“our supreme court demonstrated that, for tort claims of an economic nature,

the court continued to adhere to an assignability rule”); New Hampshire Ins. Co., Inc.

v. McCann, 707 N.E.2d 332, 336 (Mass. 1999) (Discussing a legal malpractice claim

assignment, the court states, “It is important to note that New Hampshire’s claim is

not for personal injury, but for economic loss. We think the claim should be

assignable unless some clear rule of law or professional responsibility, or some matter

of public policy necessitates that the assignment should not be enforced.”). As

presented in this case, the public policy reasons that weigh against assignment of

malpractice claims are not present, so the general rule that a chose in action may be

assigned remains applicable.

V

[¶22] Finally, under N.D.C.C. § 28-01-46, the district court granted a motion to

dismiss without prejudice. Section 28-01-46 states, in pertinent part:

Any action for injury or death alleging professional negligence

by a physician, . . . must be dismissed without prejudice on motion

unless the plaintiff serves upon the defendant an affidavit containing an

10
admissible expert opinion to support a prima facie case of professional

negligence within three months of the commencement of the action.

The court may set a later date for serving the affidavit for good cause

shown by the plaintiff if the plaintiff’s request for an extension of time

is made before the expiration of the three-month period following

commencement of the action. The expert’s affidavit must [1] identify

the name and business address of the expert, [2] indicate the expert’s

field of expertise, and [3] contain a brief summary of the basis for the

expert’s opinion. This section does not apply to 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. Typically, a “dismissal without prejudice . . . is not appealable.”

Cartwright v. Tong, 2017 ND 146, ¶ 5, 896 N.W.2d 638. Yet “a dismissal without

prejudice may be final and appealable if the plaintiff cannot cure the defect that led

to dismissal, or if the dismissal has the practical effect of terminating the litigation in

the plaintiff’s chosen forum.” Id. Because the time has expired for plaintiffs to amend

the affidavit, the issue is appealable.

[¶23] “We have not precisely defined the standard of review to be employed by this

court in reviewing a trial court’s dismissal of a medical malpractice action under § 28-

01-46, N.D.C.C.” Larsen v. Zarrett, 498 N.W.2d 191, 195 n.2 (N.D. 1993). Although

Larsen was applying a prior version of § 28-01-46, the amendments since 1981 do not

alter the analysis of the standard of review. In Larsen, we examined both the summary

judgment standard of review and an abuse of discretion under an evidentiary ruling

standard of review. Id. We said that a “trial court’s decision to dismiss a medical

malpractice claim under the authority of § 28-01-46 does not fit neatly within the

contours of either a typical summary judgment disposition or a typical evidentiary

ruling.” Id. Because the statute requires an affidavit within three months of

commencing the action, a summary judgment standard of review is a poor fit. Id.

Summary judgment ordinarily occurs after the parties have conducted more discovery

than can typically be accomplished in three months. Id. Also, the result of a dismissal

under the statute is harsher than the result of a typical evidentiary ruling. Id. Thus,

“greater leniency for the plaintiff who is subject to a motion for dismissal under § 28-

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01-46 may be required.” Id. Where, as here, an affidavit is timely filed, we review a

district court’s dismissal under § 28-01-46 as follows. We will affirm the district court

if, when looking at the affidavit in the light most favorable to the non-moving party,

and assuming the facts alleged in the complaint are true, the affidavit does not

“support a prima facie case of professional negligence” as asserted in the complaint.

N.D.C.C. § 28-01-46.

[¶24] Section 28-01-46, N.D.C.C., was “enacted to prevent an actual trial in such

cases where a medical malpractice plaintiff cannot substantiate a basis for the claim.”

Pierce v. Anderson, 2018 ND 131, ¶ 7, 912 N.W.2d 291. The purpose is an “attempt[]

to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to

support the allegations of the negligence in the early stages of litigation.” Cartwright,

2017 ND 146, ¶ 10, 896 N.W.2d 638. Under § 28-01-46, if a party moves for

dismissal, the court must dismiss a medical malpractice claim, without prejudice, if

the affidavit does not meet the requirements. The importance of the expert’s affidavit

in medical malpractice claims has been consistently recognized by this Court. Pierce,

at ¶ 13; see Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D. 1983) (“If we recognize,

as we must, that it does not require a genius to draft a complaint it becomes apparent

that more is needed than a mere allegation of negligence in a malpractice action.”

(footnote omitted)).

[¶25] Here, Dr. Weingarden’s affidavit states his business address and his area of

expertise. The district court determined the affidavit failed to include “a brief

summary of the basis for the expert’s opinion,” N.D.C.C. § 28-01-46, which

encompasses “evidence establishing the applicable standard of care, violation of that

standard, and a causal relationship between the violation and the harm complained

of.” Pierce, 2018 ND 131, ¶ 12, 912 N.W.2d 291. Dr. Weingarden’s affidavit

stated he reviewed the medical records and found that “Lima did not meet the driving

vision requirements under North Dakota Law” and that Dr. Bohn “deviated from

the standard of care required of Optometrists in the State of North Dakota by allowing

Lyle Lima to drive, despite the fact that he did not meet the driving vision

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requirement.” The district court found the affidavit did not support “the applicable

standard of care” nor does it “give a minimal assertion of causation between deviation

and the harm complained of.” We disagree. From Dr. Weingarden’s statements that

Lima’s vision was below the driving vision requirements and that Dr. Bohn violated

the standard of care by allowing Lima to drive, we can infer that Dr. Weingarden’s

opinion on the standard of care was that Dr. Bohn should have warned Lima that his

vision did not meet the legal standard to drive. In this situation, the affidavit need

not expressly state that adequate vision is required to safely drive and that a driver

whose vision does not meet legal standards will foreseeably cause driving accidents.

Therefore, Dr. Weingarden’s failure to explicitly describe this aspect of causation in

his affidavit is not determinative here.

[¶26] We determine that the affidavit meets the low threshold set out in N.D.C.C.

§ 28-01-46 because the section’s purpose “is to eliminate, at an early stage of the

proceedings, frivolous or nuisance medical malpractice actions . . . [and the] statute

provides for a preliminary screening of totally unsupported cases.” Ellefson v.

Earnshow, 499 N.W.2d 112, 114 (N.D. 1993). “The statute merely requires a plaintiff

to come forward with an expert opinion to support the allegations of malpractice.”

Id. The timely affidavit here served the purpose of ensuring that this malpractice

claim was not frivolous or unsupported. Thus, we reverse the district court’s order

dismissing the claims under N.D.C.C. § 28-01-46.

VI

[¶27] We have considered the plaintiff’s remaining issues and arguments and

conclude they are either without merit or unnecessary to our decision.

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VII

[¶28] We affirm the judgment dismissing the third party claims, reverse the judgment

dismissing the assigned claim, and remand for further proceedings.

[¶29] Jerod E. Tufte

Daniel J. Crothers

Jon J. Jensen

Jay A. Schmitz, D.J.

[¶30] The Honorable Jay A. Schmitz, D.J., and the Honorable Dale V. Sandstrom,

Surrogate Judge, sitting in place of VandeWalle, C.J., and McEvers, J., disqualified.

Sandstrom, Surrogate Judge, concurring and dissenting.

[¶31] I agree with the majority’s analysis on assignability of Lyle Lima’s claim and

on the sufficiency of the medical expert affidavit. As to the majority’s analysis on a

medical provider’s potential liability to third parties, I respectfully dissent.

[¶32] Although on potential liability to third parties the opinion focuses on “failure

to warn,” this is not a failure-to-warn case. The complaint claims not mere “omission”

but “commission.” The complaint alleges that the medical provider affirmatively told

the patient he could drive, not that Dr. Briana Bohn merely failed to warn him that he

could not. Indeed, as alleged in the complaint, if Dr. Bohn had remained silent, the

operative medical advice to the patient would have remained “you’re legally blind and

cannot drive.” As alleged, Dr. Bohn told the patient he could drive and he did drive,

killing Bradley Cichos and severely injuring five other passengers on a horse-drawn

hay trailer.

[¶33] In the opening sentence of section III on potential third-party liability, the

opinion at ¶ 5 states, “Appellants argue Dr. Bohn owed a duty to the injured parties

to warn Lima that his vision was below the minimum standard to operate an

automobile.” And at ¶ 16, the conclusion to the section, the opinion states, “We

conclude a physician has no duty to third parties arising from the physician’s failure

to warn a patient about driving risks resulting from the patient’s medical condition.”

The opinion underrepresents appellants’ claim and substitutes for it a weaker one to

address.

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[¶34] But as the amended complaint alleges at ¶ 22:

Defendant Briana Bohn, O.D., failed to notify Lyle Lima that his

vision did not meet the minimum requirements to operate a vehicle

under North Dakota law. Instead, Dr. Bohn told Lyle Lima he could

drive, with some restrictions.

Similarly, the appellants’ brief at ¶ 4 summarizes:

The April 2016 eye exam results showed Lima’s vision was

below the minimum standards required to operate a vehicle under

North Dakota law. Instead of informing Lima he could not legally

drive, Dr. Briana Bohn told Lima he could drive with certain

restrictions.

[¶35] On the issue of liability to third parties, the district court based its decision on

the opinion in Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 630 (Pa. 1999), and

held that the deceased and other plaintiffs here were not foreseeable victims. I agree

with the majority that the district court erred on the question of foreseeability, as the

opinion states at ¶ 16: “The facts alleged in the complaint support an inference of

foreseeability in the sense that a person with impaired vision who drives a motor

vehicle foreseeably will cause a traffic accident.” I would send the case back at this

point for the facts to be developed.

[¶36] We must remember that this case is at its earliest stage. The complaint has not

been answered. There has been no discovery. The facts have not been developed. Our

cases reflect that dismissal at the complaint stage is not favored and should occur only

if the court is convinced it is impossible that facts could be developed to establish the

claim. “In an appeal from a Rule 12(b) dismissal, we construe the complaint in the

light most favorable to the plaintiff, taking as true the allegations in the complaint.”

Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D. 1993) (citations omitted). “A trial

court should dismiss under Rule 12(b) only when certain it is impossible for the

plaintiff to prove a claim for which relief can be granted.” Id. Under this legal posture,

for example, we must assume the patient was driving as authorized by Dr. Bohn.

[¶37] Potential facts to be discovered could include the possibility that Dr. Bohn

never reviewed the file. The file may have prominently flagged the certificate of

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blindness. Macular degeneration is apparently irreversible and therefore it was

impossible for both tests to be correct, and under such circumstances it may have been

recklessness or gross negligence not to pursue it further. Possibly the doctor was

rushing to go somewhere else. The facts may establish that no non-negligent doctor

would have told this patient it was all right to drive under any circumstances. At this

stage we don’t know what the facts are, and these or other significant facts could

emerge.

[¶38] The plaintiffs present cases showing courts have recognized medical

negligence liability to third parties. They cite failure-to-warn cases—cases less

egregious than that alleged here—as an illustration. In response the defendants cite

other cases where failure to warn was held not to establish liability to third parties.

[¶39] The majority fails to analyze the cases put forward by the plaintiff and the

public policy arguments they contain. It appears a plurality of the states recognize

potential liability of doctors to third parties in certain circumstances. In Davis v. S.

Nassau Communities Hosp., 46 N.E.3d 614, 622 (N.Y. 2015), for example, the court

extended the doctors’ duty to include third parties “the best position to protect against

the risk of harm.”

[¶40] There are other cases where a party may be liable to third parties because of

negligence. Wrongful death is an example. Although North Dakota and other states

now have wrongful death statutes, there is also authority that wrongful death actions

“can now be regarded as arising under the common law.” The Restatement (Second)

of Torts § 925, comment k states:

“[T]here is no present public policy against allowing recovery for

wrongful death,” so that the right of action can now be regarded as

arising under the common law. Most of the details of the right may be

controlled by an existing statute or taken by analogy from one. When

recognized, this common law right has been utilized to fill in

unintended gaps in present statutes or to allow ameliorating common

law principles to apply.

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The United States Supreme Court quoted in part by the Restatement above appears

to recognize common law wrongful death actions in maritime cases. Moragne v.

States Marine Lines, Inc., 398 U.S. 375, 390-403 (1970).

[¶41] The majority puts forth a public policy analysis discussing the possibility that

third-party liability could interfere with a doctor’s medical judgment in deciding on

a course of treatment. But this is not a choice-of-treatment case. The majority raises

the possibility that a patient may be more negligent than the doctor. But many patients

simply trust what their doctor tells them they can or cannot do. And even if the driver

had greater negligence than the doctor, under our comparative fault, two or more

persons or entities can be negligent and have liability.

[¶42] The plaintiffs present cases showing courts have recognized medical

negligence liability to third parties. They cite failure-to-warn cases—cases less

egregious than that alleged here—as an illustration. In response the defendants cite

other cases where failure to warn was held not to establish liability to third parties.

[¶43] A logical flaw in the majority’s reasoning is that even if there is not third-party

liability for the less serious failure to warn, that does not preclude liability for the

more serious incorrect—deadly—advice.

[¶44] Consider a perhaps extreme but also potentially deadly analogy. There may be

no negligence for a tenant to fail to warn his guest not to shoot his gun at the wall

separating an adjoining apartment, but there well could be liability if he told his guest

it was okay to do so. In that case, as in this case, serious bodily injury or death could

be the result.

[¶45] Case law has many examples where failure to warn or advise is not a problem

but giving incorrect advice is. Here are some examples. “Being unaware is not

synonymous with ill or erroneous advice.” Stewart v. State, 845 So. 2d 744, 747

(Miss. Ct. App. 2003). “[R]elief is not warranted where counsel merely fails to inform

a client about the various ramifications of gain time as opposed to volunteering

incorrect information.” Henderson v. State, 626 So. 2d 310, 311 (Fla. Dist. Ct. App.

1993) (citations omitted). “We find the reasoning of the . . . courts persuasive with

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respect to the affirmative misrepresentation exception to the general rule regarding

[no need to advise of] collateral consequences.” Rubio v. State, 194 P.3d 1224, 1232

(Nev. 2008). “Because a defendant need not be informed of all possible collateral

consequences, misinformation about a collateral consequence does not make a

guilty plea involuntary per se. But affirmative misinformation about a collateral

consequence may nevertheless create a manifest injustice if the defendant materially

relied on that misinformation when deciding to plead guilty.” In re Reise, 192 P.3d

949, 957 (Wash. Ct. App. 2008) (citations omitted).

[¶46] The cases cited above and others establish that there are circumstances in

which incorrect advice is a problem when failure to warn or advise is not. On the

other hand, the majority can cite no case holding—as it apparently does—that there

is no difference between a failure to warn and giving incorrect—even deadly—advice.

[¶47] In this uncharted area of the law, we should move carefully and deliberately,

waiting for the facts to be developed to inform any public policy decisions that courts

may be compelled to make. The majority itself, at ¶ 6, sets forth factors several of

which developing the facts in this case may inform:

The court must balance the following factors when determining

the existence of duty in each particular case: (1) foreseeability of

harm to plaintiff; (2) degree of certainty that plaintiff suffered injury;

(3) closeness of connection between defendant’s conduct and injury

suffered; (4) moral blame attached to defendant’s conduct; (5) policy

of preventing future harm; (6) extent of burden to defendant and the

consequences to the community of imposing a duty to exercise care

with resulting liability for breach; and (7) availability, cost and

prevalence of insurance for the risk involved.

The importance of waiting for the facts to be developed is emphasized by the fact that

every one of the cases cited by the majority in support of these factors is a summary

judgment case. See Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343; APM,

LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34; and Hurt v.

Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551. In fact every case cited in support of

these factors in every one of these cases cited by the majority is a summary judgment

case. See Perius v. Nodak Mut. Ins. Co., 2010 ND 80, ¶ 9, 782 N.W.2d 355; Rawlings

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v. Fruhwirth, 455 N.W.2d 574, 577 (N.D.1990); Saltsman v. Sharp, 2011 ND 172,

¶ 11, 803 N.W.2d 553; M.M. v. Fargo Pub. Sch. Dist. #1, 2010 ND 102, ¶ 9, 783

N.W.2d 806; Schmidt v. Gateway Cmty. Fellowship, 2010 ND 69, ¶ 8, 781 N.W.2d

200; Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343; Diegel v. City of West

Fargo, 546 N.W.2d 367, 370 (N.D. 1996).

[¶48] If the facts turn out to be the most egregious possible, third-party liability may

well be appropriate. If the facts are something less, a line may need to be drawn. Or

perhaps on remand the issue here will become moot.

[¶49] Dale V. Sandstrom, S.J.

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