[¶ 1] David Long appeals from the district court’s summary judgment dismissing his wrongful death action, arising out of complications from a medical procedure performed on his wife, Jane Long. Dr. Adducci, Dr. Jaszczak, and Mercy Medical Center cross-appeal. We reverse and remand the dismissal of Dr. Adducci because he owed a legal duty to obtain Jane Long’s informed consent and because the issues of materiality of risk and causation are questions for the trier of fact. We affirm the dismissal of Dr. Jaszczak and Mercy Medical Center because the claim against Dr. Jaszczak is barred by the statute of limitations, and because Mercy Medical Center did not owe a legal duty of care to Jane Long.
I
[¶2] On July 6, 1999, Dr. Joseph E. Adducci examined Jane Long for a recurring urinary tract infection. Dr. Adducci ordered an intravenous pyelogram (“IVP”), a procedure involving x-rays of the upper urinary tract after the patient is injected with a contrast media. On July 9, 1999, Jane Long arrived at Mercy Medical Center for an IVP. Dr. L.J. Jaszczak was the radiologist who supervised the IVP. During the IVP, Jane Long experienced an allergic reaction and went into severe anaphylactic shock. She never regained consciousness and died on July 24, 1999.
[¶ 3] David Long sued Dr. Adducci, Dr. Jaszczak, and Mercy Medical Center claiming the doctors failed to obtain Jane Long’s informed consent before she agreed to the procedure, and Mercy Medical Center’s policies regarding informed consent were either negligent or negligently administered. According to David Long, Jane Long was feeling better the day she went in for the IVP and would not have consented to the procedure if she had been fully informed of the risks involved. Dr. Adducci and Dr. Jaszczak admit they never explained the risks related to an IVP to Jane Long.
[¶ 4] On motions for summary judgment, the district court dismissed Mercy Medical Center finding David Long failed to disclose an expert to testify about hospital administration standards within the statutory three-month period. The district court also dismissed the claims against the doctors finding David Long failed to establish a causal link between the failure to disclose the risks of an IVP and the injury suffered.
[¶ 5] David Long appeals, arguing the district court incorrectly determined he had failed to establish causation and that he had a legal obligation to provide expert testimony to support his claim against Mercy Medical Center.
[¶ 6] Dr. Adducci and Dr. Jaszczak cross-appeal, arguing the district court incorrectly found David Long commenced this action within the statute of limitations. The doctors also argued they are entitled to summary judgment because David Long failed to acquire an expert to support allegations of malpractice. Mercy Medical Center cross-appeals, arguing the hospital
II
[¶ 7] Whether a district court properly granted summary judgment is a question of law subject to a
de novo
standard of review on the entire record.
Minn-Kota Ag Products, Inc. v. Carlson,
III
[¶ 8] On cross-appeal, Dr. Adducci and Dr. Jaszczak argued the district court incorrectly found David Long filed his claims against them within the statute of limitations. David Long argued the district court was correct because the statute of limitations would not have started to run until a reasonable time after Jane Long’s death, in order to give the family time to determine whether malpractice occurred. This is contrary to North Dakota law.
[¶ 9] Actions for the recovery of damages from malpractice have a two-year statute of limitations. N.D.C.C. § 28-01-18(3). In cases in which death is the result of medical malpractice, “the claim for relief is deemed to have accrued at the time of the discovery of the malpractice.” N.D.C.C. § 28-01-18(4). This Court has adopted the discovery rule in medical malpractice cases holding, “the two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant’s possible negligence.”
Schanilec v. Grand Forks Clinic, Ltd.,
[¶ 10] On July 9, 1999, Jane Long entered Mercy Medical Center to undergo a scheduled IVP. During the procedure, she experienced anaphylactic shock and went into a coma. David Long arrived at the hospital shortly after she went into shock. On July 9, 1999, reasonable minds could come to but one conclusion, David Long was apprised of the facts which would place a reasonable person on notice that a potential claim of medical malpractice existed. Rule 6(a), N.D.R.Civ.P., states: “In computing any period of time prescribed or allowed ... by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run may not be included.” Therefore, the statute of limitations began to run on July 10, 1999. The record contains a sheriffs return certifying Dr. Jaszczak’s summons and complaint were delivered to the sheriff on July 13, 2001. The return further certifies Dr. Jaszczak was personally served on July 13, 2001. Accordingly, David Long’s claim against Dr. Jaszczak is
[¶ 11] The applicable statute of limitations requires that an action “must be commenced within two years after the claim for relief has accrued.” N.D.C.C. § 28-01-18. As we previously stated, David Long’s claim accrued on July 9, 1999, and the statute of limitations began to run on July 10, 1999. An action is commenced when the summons is personally served on a defendant, or “when the summons, with the intent that it shall be actually served, is delivered: (1) To the sheriff or other officer of the county in which the defendant ] ... reside[s].” N.D.C.C. § 28-01-38(1). In accordance with N.D.C.C. § 28-01-38, this Court has held that the delivery of a summons to a sheriff, with the intent to promptly serve the defendant, commences an action.
Elliot v. Drayton Pub. Sch. Dist. No. 19,
IV
[¶ 12] David Long’s claim of medical malpractice against Dr. Adducci is based on the doctrine of informed consent. We recently explained:
The doctrine of informed consent is essentially the duty of a physician to disclose sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure. If a physician fails to obtain a patient’s informed consent, the physician may be found negligent. A plaintiff in an informed-consent case must establish breach of a physician’s duty of disclosure, causation, and injury. An integral part of a physician’s duty to a patient is the disclosure of available choices for treatment and the material and known risks involved with each treatment.
Flatt v. Kantak,
A
[¶ 13] We recently analyzed the duty of a doctor to obtain the informed consent of a patient stating, a “referring physician can be held liable only when that physician has formally ordered a procedure or actually participated in the treatment or procedure.”
Koapke v. Herfendal,
[¶ 14] Dr. Jaszczak was the radiologist on duty during Jane Long’s IVP. In his deposition, he testified Dr. Adducci was the ordering physician. Dr. Jaszczak asserted he was not present at every single radiology procedure because there were many going on at the hospital and there were simply too many for him to attend. He explained that the radiology technologist, who actually performs the IVP, usually discusses side effects with patients before they undergo the procedure.
[¶ 15] In agreement with a majority of jurisdictions, we have stated:
[I]t clearly is not necessary for every physician or health care provider who becomes involved with a patient to obtain informed consent for every medical procedure to which the patient submits. Rather, it is the responsibility of a physician to obtain informed consent for those procedures and treatments that the physician formally prescribes or performs.
Koapke,
B
[¶ 16] Dr. Adducci argues he did not breach the duty of disclosure because David Long failed to establish death was a material risk. The district court found the extremely remote risk of death would not have been significant to a reasonable person in Jane Long’s circumstances.
[¶ 17] “A plaintiff must show the existence of a material risk that the physician failed to disclose, as well as causation and an injury.”
Koapke,
C
[¶ 19] The district court dismissed David Long’s claim against Dr. Ad-ducci for failure to establish a causal link. The court found, as a matter of law, a reasonable patient’s willingness to undergo an IVP would not have been affected by being informed of the remote risk of death. On appeal, David Long argues summary judgment was inappropriate because whether a fully informed, reasonable patient would have refused the IVP is a question of fact for the jury to decide. We recently stated:
Along with establishing nondisclosure of required information, causation, and actual damage resulting from the undisclosed risk, a plaintiff must also show that reasonable persons, if properly informed, would have rejected the proposed treatment. A causal connection exists only when adequate disclosure would have caused the patient to withhold consent to the particular course of treatment or procedure.
Koapke v. Herfendal,
[¶ 20] Here, the undisputed evidence established the risk of death from an IVP at somewhere between 1 in 40,000 to 1 in 150,000. Dr. Adducci relies on
Pauscher v. Iowa Methodist Med. Ctr.,
[¶ 21] Jane Long was being treated for a recurrent urinary infection and had a small amount of blood in her urine. Her situation was arguably less life threatening than the patient in
Pauscher. Id.
at 357. This Court is not aware of any jurisdiction holding that knowing the risk of death would not affect the willingness to undergo an IVP of a person in Jane Long’s circumstances. Whether a person in Jane Long’s situation would undergo the IVP is a question for the trier of fact. We reverse and remand the dismissal of Dr. Adducci on the grounds he owed a legal duty to obtain Jane Long’s informed consent and the is
D
[¶ 22] Dr. Adducci argues the district court erred in denying summary judgment because David Long failed to submit expert testimony. Dr. Adducci argues expert testimony is necessary to prove the risks, their gravity, the likelihood of occurrence and reasonable alternatives. He also argues expert testimony is necessary to prove whether a physician would consider the risk of death material, and therefore require disclosure. However, “[ultimately, a ‘trier of fact must determine whether a reasonable person in the plaintiffs position would attach significance to the specific risk.’ ”
Jaskoviak,
[¶ 28] We have stated:
Expert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives. The necessity for expert testimony is particularly so when such information is outside the common knowledge of laymen. Expert testimony may be necessary under the lay standard, at least to establish the existence of a risk, its likelihood of occurrence, and the type of harm in question; after that, however, expert evidence may not be required. However, experts may be required to show both that material information existed and that the defendant should reasonably have known about it.
Jaskoviak,
V
[¶ 24] David Long argued Mercy Medical Center’s informed consent policies were either negligent or negligently administered. Mercy Medical Center argued it did not have a duty to obtain the informed consent of its patients. It argued the duty to obtain informed consent is solely the doctor’s responsibility. Mercy Medical Center argued that because it did not owe a legal duty to obtain informed consent, its policies are not negligent.
[¶ 25] We recently explained:
Negligence actions involve issues of fact and are generally not appropriate for summary judgment. An actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty. To establish an actionable negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Generally, the existence of a duty is a preliminary question of law for the court to decide. When a duty does not exist, there is no negligence. If determining the existence of a duty depends on resolving factual issues, the facts must be resolvedby the trier of fact. However, issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts.
Azure v. Belcourt Pub. Sch. Dist.,
[¶ 26] To prevail on his claim against Mercy Medical Center, David Long must prove the hospital owed a duty to obtain Jane Long’s informed consent to the IVP. Generally, a hospital does not have a duty to obtain the informed consent of its patients.
Kershaw v. Reichert,
“It is the surgeon, and not the hospital, who has the technical knowledge and training necessary to advise each patient of the risks of the surgery prior to the patient giving his consent. Further, the hospital does not know the patient’s medical history, nor the details of the particular surgery to be performed.”
Id.
at 17 (quoting
Krane v. Saint Anthony Hospital Systems,
[¶ 27] David Long argued Mercy Medical Center voluntarily accepted the duty through its written policies requiring the execution of an appropriate consent for each patient treated at its facilities. Although North Dakota has not specifically addressed this issue, a majority of courts have held a hospital’s written informed consent policies do not create a legal duty to obtain patients’ informed consent.
E.g., Mele v. Sherman Hosp.,
[¶ 28] The majority of states hold that a hospital’s policy does not obligate it to ensure a patient has given informed consent.
E.g., Mele,
[¶ 29] We agree with this well reasoned analysis and hold that a hospital’s voluntary policies on informed consent do not create a legal duty to obtain a patient’s informed consent. The duty to obtain informed consent is solely the responsibility of the physician, not the hospital where the procedure is performed.
Bryant,
VI
[¶ 30] The district court’s summary judgment is affirmed in part, reversed in part, and remanded for further proceedings.