997 N.W.2d 99
N.D.2023Background
- Severance sued chiropractor Dr. Howe after undisputed chiropractic adjustments allegedly included repeated, forceful hyperextension of Severance’s elbow without his consent, causing a traumatic elbow injury and prolonged impairment.
- The claim originated in small claims court, was removed to district court, and Howe admitted performing adjustments but disputed lack of consent.
- Severance did not file an expert-affidavit under N.D.C.C. § 28-01-46; Howe moved to dismiss more than three months after filing, citing that statute.
- The district court dismissed the action without prejudice for failure to serve an expert affidavit and denied leave to amend, concluding North Dakota has no distinct medical-battery cause of action separate from malpractice.
- The dismissal came after the two-year statute of limitations had run, making the dismissal effectively final and appealable; the Supreme Court reviewed the dismissal under the Rule 12(b)(6) standard de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Severance pleaded a cognizable common‑law medical battery claim | Severance argued the complaint alleges intentional, nonconsensual touching (battery) distinct from negligence | Howe argued North Dakota law does not recognize an independent medical‑battery claim distinct from malpractice | Court held battery exists at common law and Severance’s allegations suffice under notice pleading to raise a battery claim |
| Whether N.D.C.C. § 28‑01‑46 (expert‑affidavit rule) applies to intentional battery claims | Severance argued § 28‑01‑46 applies only to actions ‘‘alleging professional negligence,’’ not intentional torts | Howe argued the affidavit requirement should apply or dismissal is still proper because expert proof of causation/damages is needed | Court held § 28‑01‑46 by its plain language applies only to professional‑negligence claims and not to intentional battery claims |
| Whether expert testimony is required to prove causation/damages for battery so as to justify dismissal | Severance argued battery can be proven by lay evidence of lack of consent and does not require expert proof of causation/damages | Howe relied on malpractice precedent and no‑fault decisions to claim expert proof is necessary | Court held expert proof of causation/damages is not a prerequisite to a battery claim; battery focuses on lack of consent and offensive contact |
| Appealability and standard of review for the dismissal | Severance contended dismissal was appealable because SOL had expired; he sought de novo review of legal dismissal | Howe did not dispute appealability; argued dismissal was proper on the merits | Court found the dismissal was appealable (limitations expired) and applied de novo Rule 12(b)(6) review |
Key Cases Cited
- Hopfauf v. Hieb, 2006 ND 72, 712 N.W.2d 333 (distinguishing total lack of consent from lack of informed consent)
- Wishnatsky v. Huey, 1998 ND App 8, 584 N.W.2d 859 (elements of offensive‑contact battery)
- Winkjer v. Herr, 277 N.W.2d 579 (N.D. 1979) (expert evidence generally required for medical malpractice)
- Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167 (Nev. 2016) (expert testimony required for lack‑of‑informed‑consent claims but not for battery)
- Cartwright v. Tong, 2017 ND 146, 896 N.W.2d 638 (dismissal under § 28‑01‑46 issued after limitations period is appealable)
- Felder v. Casey, 487 U.S. 131 (1988) (battery rooted in common law)
- Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891) (common‑law protection of bodily integrity)
- Mayr v. Osborne, 795 S.E.2d 731 (Va. 2017) (contrast between battery protecting bodily autonomy and negligence regulating reasonable care)