Pierce v. Anderson, 912 N.W.2d 291

May 2015: Robert Carvell injured in vehicle accident; ED records showed dislocations and fractures of multiple right-hand joints including third (middle) finger.
May 4, 2015: Carvell consented to surgery at Bone & Joint Center by Dr. Troy Pierce for open reduction and internal fixation of elbow and metacarpal injuries; operative report lists procedures on 4th and 5th metacarpals and later documents show involvement of the 3rd metacarpal/MCP joint.
Postoperative course: swelling and limited range of motion in the right middle finger; June 2015 imaging showed third MCP volar/ulnar subluxation and fractures; Dr. Pierce performed a second surgery (open reduction and pinning of the 3rd MCP joint).
April 2017: Carvell sued Petitioners for alleged negligence in failing to treat/repair the fractured middle finger during the initial surgery.
Petitioners moved to dismiss (Sept. 2017) under N.D.C.C. § 28-01-46 for failure to serve an admissible expert affidavit within three months; district court denied dismissal, concluding the claim fell within the statute’s “obvious occurrence” exception.
Supreme Court granted supervisory writ, concluding the district court erred: the alleged negligence arose from technical surgical decisions beyond lay understanding, so the obvious-occurrence exception did not apply; dismissal ordered.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28‑01‑46 affidavit requirement applies	Carvell: failure to fix middle finger was an "obvious occurrence" so no expert affidavit required	Petitioners: affidavit required because alleged negligence occurred during technical surgical procedures	Held: affidavit required; obvious-occurrence exception does not apply
Whether the district court’s denial of dismissal is reviewable by supervisory writ	Carvell: defendants can pursue trial/appeal; no extraordinary relief needed	Petitioners: denial leaves no adequate remedy and contradicts statute/precedent	Held: supervisory jurisdiction appropriate; no adequate alternative remedy
Standard for reviewing obvious-occurrence determinations	Carvell: factual issue for district court	Petitioners: mixed question of law and fact subject to de novo legal review	Held: mixed question; underlying facts are factual, applicability of legal standard is reviewed as law
Whether the alleged occurrence is like statutory examples (e.g., wrong-patient)	Carvell: injury/result makes occurrence obvious	Petitioners: occurrence (surgical judgment/technique) is not like those examples	Held: ejusdem generis limits "other obvious occurrence" to occurrences similar to listed examples; this is not one of them

Western Horizons Living Ctrs. v. Feland, 853 N.W.2d 36 (N.D. 2014) (standards for exercising supervisory writs)
State v. Haskell, 621 N.W.2d 358 (N.D. 2001) (granting supervisory writ to direct dismissal when required filing absent)
Dimond v. State Bd. of Higher Educ., 603 N.W.2d 66 (N.D. 1999) (declining supervisory jurisdiction except in extraordinary cases)
Van Klootwyk v. Baptist Home, Inc., 665 N.W.2d 679 (N.D. 2003) (purpose of expert affidavit requirement to screen unsupported malpractice claims)
Haugenoe v. Bambrick, 663 N.W.2d 175 (N.D. 2003) (technical surgical procedures fall outside obvious-occurrence exception)
Johnson v. Bronson, 830 N.W.2d 595 (N.D. 2013) (obvious-occurrence exception applies only when layperson can readily perceive negligence)
Scheer v. Altru Health Sys., 734 N.W.2d 778 (N.D. 2007) (expert affidavit requirement is mandatory absent an exception)
Larsen v. Zarrett, 498 N.W.2d 191 (N.D. 1993) (definition of "obvious" and ejusdem generis application)
Greene v. Matthys, 893 N.W.2d 179 (N.D. 2017) (obvious-occurrence requires occurrence itself, not just the result, be obvious)
Cartwright v. Tong, 896 N.W.2d 638 (N.D. 2017) (affirming dismissal where alleged surgical act was beyond lay understanding)
Winkjer v. Herr, 277 N.W.2d 579 (N.D. 1979) (diagnosis/treatment issues not within common lay knowledge)