Cartwright v. Tong, M.D.
2017 ND 146
| N.D. | 2017Background
- Cartwrights sued Dr. Tong and Great Plains for medical negligence after a post-caesarean procedure.
- Plaintiff Roxane Cartwright allegedly consented to a cesarean with tubal ligation, but Tong performed a bilateral salpingectomy removing her fallopian tubes.
- Cartwrights claimed the salpingectomy was without informed consent and caused permanent sterilization.
- Cartwrights learned of the tubal removal on February 24, 2014 during a discussion about reversal/adoption timing.
- Tong and Great Plains moved to dismiss April 27, 2016 for failure to disclose an admissible expert affidavit under N.D.C.C. § 28-01-46, or, alternatively, for summary judgment.
- District Court dismissed the complaint without prejudice on June 27, 2016; Cartwrights appealed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the obvious occurrence exception applies. | Cartwrights rely on obvious occurrence to bypass expert affidavit. | Tong/Great Plains argue no obvious occurrence; requires expert. | Obvious occurrence not applicable; expert evidence required. |
| Whether the wrong organ exception applies. | Wrong organ exception relieves needing an expert affidavit. | Wrong organ not satisfied because the procedure occurred on the intended organ. | Wrong organ exception does not apply; procedures targeted fallopian tubes. |
Key Cases Cited
- Scheer v. Altru Health System, 2007 ND 104 (ND 2007) (dismissal timelines; expert affidavit requirement limits frivolous claims)
- Johnson v. Mid Dakota Clinic, P.C., 2015 ND 135 (ND 2015) (obvious occurrence exceptions require lay understanding)
- Larsen v. Zarrett, 498 N.W.2d 191 (ND 1993) (obvious occurrence limited to lay-understandable cases)
- Jaskoviak v. Gruver, 2002 ND 1 (ND 2002) (informed consent and expert testimony considerations)
- Greene v. Matthys, 2017 ND 107 (ND 2017) (contextualized obvious occurrence in surgical procedures)
- White v. Altru Health System, 2008 ND 48 (ND 2008) (statutory purpose of 28-01-46 to minimize frivolous claims)
- Hopfauf v. Hieb, 2006 ND 72 (ND 2006) (discusses lack of informed consent vs. medical negligence framework)