Cichos v. Dakota Eye Institute, P.C., 933 N.W.2d 452

In 2015 an eye doctor at Dakota Eye Institute found Lyle Lima legally blind, issued a certificate of blindness, and instructed him not to drive.
In April 2016 Dr. Briana Bohn re-examined Lima, told him his vision had “improved” and that he could drive with restrictions, though his acuity remained below North Dakota’s statutory driving standard.
In May 2016 Lima collided with a horse-drawn hay trailer, killing one passenger and injuring others; the injured parties made a claim against Lima.
As part of a partial settlement, Lima assigned any medical-malpractice claim he had against Dakota Eye Institute/Dr. Bohn to the injured parties and their representatives, who then sued.
Defendants moved to dismiss: (1) arguing there is no physician duty to third parties here; (2) challenging assignability of Lima’s malpractice claim; and (3) asserting the plaintiff’s expert affidavit failed to meet N.D.C.C. § 28-01-46. The district court dismissed; plaintiffs appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a treating physician owes a duty to third parties to warn or restrict a patient from driving because of a medical condition	Dr. Bohn’s advice that Lima could drive made her responsible to third parties harmed by his driving	No duty to the public arises from physician’s conduct toward a patient; extending liability would harm patient care and public policy	No duty to third parties for failure (or in these circumstances, failure/affirmative advice) to warn about driving risks from a patient’s medical condition; third-party malpractice liability declined
Whether Lima’s medical-malpractice claim was assignable to the injured parties	Lima’s claim is economic (reimbursement/liability) and therefore assignable	Malpractice claims are intensely personal and nonassignable; stem from confidential physician–patient duties	Assignable: this claim was economic (reimbursement for sums Lima owed) and is not barred by public-policy exceptions to assignment
Whether the expert affidavit satisfied N.D.C.C. § 28-01-46 and avoided dismissal	The timely expert affidavit by Dr. Weingarden identified expertise, address, reviewed records, and opined Bohn deviated from the standard by allowing Lima to drive	The affidavit lacked a brief summary of basis—did not state the applicable standard of care or minimal causation links	Affidavit met the statute’s low threshold; dismissal under § 28-01-46 was reversed and claim allowed to proceed

Ramirez v. Walmart, 915 N.W.2d 674 (N.D. 2018) (standard for reviewing 12(b)(6) dismissal)
Bjerk v. Anderson, 911 N.W.2d 343 (N.D. 2018) (factors to balance when determining duty)
Kolbe v. State, 661 N.W.2d 142 (Iowa 2003) (declining third-party duty; public-policy reasons)
Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999) (refusing to extend physician duty to public for driving risks)
Jarmie v. Troncale, 50 A.3d 802 (Conn. 2012) (foreseeability insufficient; policy factors weigh against extending duty)
Medina v. Hochberg, 987 N.E.2d 1206 (Mass. 2013) (distinguishing treatment side-effect warnings from duty to warn about underlying medical-condition driving risks)
Grey Bear v. N.D. Dep’t of Human Servs., 651 N.W.2d 611 (N.D. 2002) (recognition of assignment of medical-cost-related claims in certain contexts)
Pierce v. Anderson, 912 N.W.2d 291 (N.D. 2018) (interpretation and purpose of N.D.C.C. § 28-01-46; affidavit must minimally support malpractice claim)