Ortega v. Sanford Bismarck, et al.

Nancy Ortega appealed a district court order granting summary judgment in favor of Sanford Bismarck and Dr. Christie Iverson on her professional negligence claim. The matter was dismissed without prejudice. Ortega was seen at Sanford Bismarck for upper right abdomen pain. A CT scan revealed she had a right ovarian tumor. Dr. Iverson performed surgery to remove her left ovary. The surgery included a hysterectomy, bilateral salpingectomy, left oophorectomy and lysis of adhesions. Several months later, Dr. Iverson performed a second surgery to remove the right ovary. Ortega filed suit alleging malpractice when Dr. Iverson removed the left ovary instead of the right. The hospital and doctor moved to dismiss, arguing Ortega could not establish she suffered any damages. Although not argued by the hospital or doctor, the trial court held Ortega failed to file an admissible expert opinion supporting a prima facie medical malpractice claim within three months of filing her action, as required under N.D.C.C. 28-01-46. The court held Dr. Iverson’s removal of the ovary was not an “obvious occurrence” precluding application of 28-01-46, and that the “wrong organ” exception in the statute did not apply. The North Dakota Supreme Court found that Sanford and Dr. Iverson did not assert Ortega’s claims were barred by N.D.C.C 28-01-46, and they conceded the statute would not apply. Under these facts and circumstances, the Supreme Court concluded the district court erred in applying N.D.C.C. 28-01-46 to grant summary judgment. The judgment was therefore reversed, and the matter remanded for further proceedings.