Ortega v. Bismarck, 927 N.W.2d 872

Background

Ortega underwent surgery in Aug. 2014 by Dr. Christie Iverson; she alleges Iverson removed her left ovary when the right ovary (with a dermoid tumor) was to be removed; a second surgery in Oct. 2014 removed the right ovary.
Ortega sued Sanford Bismarck and Dr. Iverson for professional negligence in Aug. 2016, alleging the wrong ovary was removed and she suffered damages from that error.
Defendants moved for summary judgment arguing Ortega lacked expert proof of causation and lacked proof of damages; they did not assert the N.D.C.C. § 28-01-46 affidavit rule as a basis for relief.
The district court sua sponte granted summary judgment and dismissed without prejudice, holding Ortega failed to file the § 28-01-46 expert-affidavit within three months and that the “wrong organ”/obvious-occurrence exception did not apply.
The dismissal was entered after the two-year statute of limitations had run, so the appellate court treated the dismissal as effectively final and appealable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly granted summary judgment under N.D.C.C. § 28-01-46 (three-month expert-affidavit requirement)	Ortega did not have the § 28-01-46 affidavit but contends defendants did not move on that ground and the court should not grant relief on an unraised theory	Defendants conceded § 28-01-46 would not apply and did not rely on it in their motion	Court erred: district court should not have applied § 28-01-46 sua sponte where defendants did not assert it and conceded it inapplicable; reversal and remand.
Whether dismissal without prejudice was appealable	Ortega argued the judgment effectively foreclosed litigation because the statute of limitations had run	Defendants did not dispute appealability on that basis	Held appealable because the dismissal was entered after the two-year malpractice limitations period had expired, effectively foreclosing refile.
Whether expert testimony is required to prove causation for Ortega’s malpractice claim	Ortega contends causation may be a question for trial and she identified Dr. Iverson as a treating physician; did not present other expert affidavit within three months	Defendants argued Ortega lacked expert proof linking alleged negligence to her harms and lacked proof of damages	Court declined to rule on this issue on appeal — remanded for further proceedings; appellate court refused to give an advisory opinion.
Whether the “obvious occurrence”/wrong-organ exception to § 28-01-46 applied	Ortega implicitly argued the wrong-organ exception might apply	Defendants maintained it did not apply	Appellate court did not decide the merits of the exception because defendants conceded § 28-01-46 inapplicable and district court erred in applying it sua sponte.

Key Cases Cited

James Vault & Precast Co. v. B&B Hot Oil Serv., Inc., 908 N.W.2d 108 (N.D. 2018) (dismissal without prejudice is appealable when statute of limitations has run)
Cartwright v. Tong, 896 N.W.2d 638 (N.D. 2017) (statute of limitations and accrual rules for medical malpractice)
Scheer v. Altru Health Sys., 734 N.W.2d 778 (N.D. 2007) (when malpractice claim accrues for limitations analysis)
Pierce v. Anderson, 912 N.W.2d 291 (N.D. 2018) (purpose and application of § 28-01-46 expert-affidavit requirement and the obvious-occurrence exception)
Johnson v. Bronson, 830 N.W.2d 595 (N.D. 2013) (summary judgment standard and § 28-01-46 screening purpose)
Jaste v. Gailfus, 679 N.W.2d 257 (N.D. 2004) (caution against granting summary judgment on grounds not raised by parties)
White v. Altru Health Sys., 746 N.W.2d 173 (N.D. 2008) (court should avoid issuing advisory opinions)