Randy Dean Severance, Plaintiff and Appellant v. Dr. Brenden Jeron Howe, Defendant and Appellee
No. 20230084
IN THE SUPREME COURT STATE OF NORTH DAKOTA
October 27, 2023
2023 ND 197
Corrected Opinion Filed 10/27/23 by Clerk of the Supreme Court. FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT OCTOBER 26, 2023.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Randy D. Severance, Ryder, ND, plaintiff and appellant.
Duane A. Lillehaug (argued), Fargo, ND, Meggi R. Ihland Pelton (appeared), Bismarck, ND, and Daniel J. Dunn (on brief), Fargo, ND, for defendant and appellee.
Filed by Clerk of Supreme Court 10/27/23
Crothers, Justice.
[¶1] Randy Severance appeals from a judgment dismissing his personal injury claim against Dr. Brenden Howe. The district court dismissed the case because Severance did not submit an affidavit containing an expert opinion to support a prima facie case of professional negligence as required by
I
[¶2] Severance brought his claim against Howe in small claims court. His claim affidavit stated in full:
“I was a patient of Dr. Howe, seeking relief from occasional back and neck pain. On a personal whim, Dr. Howe decided that I also had an elbow problem. Without my consent, he performed unwanted manipulations, repeatedly and forcefully hyperextending my elbow. This resulted in a serious, traumatic elbow injury. My elbow was not in pain prior to Dr. Howe‘s inappropriate and excessive manipulations, and I had no desire to have it manipulated. As a result of his actions, my right arm was virtually crippled for over 7 months, with serious pain upon light activity. After a period of recovery and extensive physical therapy, my arm still has ongoing pain, stiffness, and impaired functionality.”
Howe removed the claim to district court and filed an answer. Howe admitted he performed chiropractic adjustments on Severance but denied they were done without Severance‘s consent. Severance did not amend his claim affidavit.
[¶3] More than a year after the case was removed, Howe moved to dismiss under
[¶4] The district court dismissed the case because Severance did not provide a timely expert opinion as required by
II
[¶5] A dismissal without prejudice is generally not appealable. Scheer v. Altru Health Sys., 2007 ND 104, ¶ 9, 734 N.W.2d 778. Severance‘s claim is for injuries he allegedly sustained in 2019. Both parties agree the two-year statute of limitations has run in this case. See
[¶6] “We have not precisely defined the standard of review to be employed by this court in reviewing a trial court‘s dismissal of a medical malpractice action under
[¶7] The district court dismissed this case assuming Severance‘s “claims were properly plead.” The court held there is not a “specific unique claim of medical battery in North Dakota” and “there is no claim for any form of medical malpractice whereby a Plaintiff would not need to disclose an expert for a lack of consent in a medical procedure.” Given the court dismissed Severance‘s claim as it was pled on legal grounds, we apply the
[¶8] “The legal sufficiency of a claim is tested by a motion to dismiss under
“[W]e construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. A district court‘s decision granting a Rule 12(b)(6) motion to dismiss a complaint will be affirmed if we cannot discern a potential for proof to support it. We review a district court‘s decision granting a motion to dismiss under
N.D.R.Civ.P. 12(b)(6) de novo on appeal.”
Id. (alteration in original) (quoting Atkins v. State, 2021 ND 83, ¶ 9, 959 N.W.2d 588).
III
[¶9] Resolution of this appeal turns on the distinction between the tort of medical battery and medical malpractice. We have
[¶10] The torts of battery and negligence serve different functions and provide different avenues for recovery. Mayr v. Osborne, 795 S.E.2d 731, 735-36 (Va. 2017). Battery protects a person‘s physical integrity and control over his body. Id. at 736. At its core, the tort of battery operates to protect an individual‘s right to avoid intentional bodily contact. Id. On the other hand, the tort of negligence serves to encourage the exercise of reasonable care. Id. Obtaining a patient‘s informed consent relates to a doctor‘s duty of care, specifically the “duty of a doctor to disclose pertinent information to a patient,” including “available choices for treatment and the material and known risks involved with each treatment.” Cartwright, 2017 ND 146, ¶ 15.
[¶11] The difference between the torts implicates whether a plaintiff is required to present expert testimony to prove his claim. Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167, 172 (Nev. 2016). In lack of informed consent cases, the plaintiff must prove a doctor failed to provide information the medical community would require a patient to know before giving consent. Id. This involves assessing a doctor‘s degree of care and skill, which is often beyond the knowledge of a lay jury and requires expert evidence. Mayr, 795 S.E.2d at 736; see also Winkjer v. Herr, 277 N.W.2d 579, 585 (N.D. 1979) (holding expert evidence is generally required for medical malpractice claims under the common law). Expert evidence is not required for a plaintiff to prove medical battery because a lay jury can determine whether a person provided no consent at all to a touching. Humboldt Gen Hosp., at 172. The differences between the torts are clear in theory. The differences become blurry in practice when cases present scope-of-consent fact patterns. See, e.g., Kohoutek v. Hafner, 383 N.W.2d 295, 298 (Minn. 1986) (stating battery exists when a physician fails to disclose “a very material aspect of the nature and character” of a procedure).
A
[¶12] Severance asserts his battery claim is a viable cause of action recognized by the common law. The district court rejected his argument because this Court has not acknowledged “a clear difference” between “no consent” and “inadequate consent,” and the law “pertaining to medical battery” is currently “unsettled.”
[¶13] The tort of battery exists at common law. Felder v. Casey, 487 U.S. 131, 146 n. 3 (1988); see also Mills v. Rogers, 457 U.S. 291, 294 n. 4 (1982) (stating the right to refuse medical treatment emerged in part from the common law tort of battery). “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person. . . .” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251-52 (1891) (discussing battery in context of the common
[¶14] The district court also rejected Severance‘s battery claim because he did not provide “a definition or the elements of a proposed medical battery claim in North Dakota,” and given “the lack of argument presented,” the court was not persuaded “to adopt a new area of law.” North Dakota is a notice-pleading state. Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992). “North Dakota‘s rules do not require plaintiffs to ‘allege every element of their claim.” Tibert v. Minto Grain, LLC, 2004 ND 133, ¶ 18, 682 N.W.2d 294 (quoting Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588). “With the adoption of notice pleading in North Dakota, the formal character of the complaint no longer strictly determines the cause of action.” Estate of Hill, at 296.
[¶15] Severance pled he “had no desire” for his elbow to be manipulated by Howe, and “[w]ithout my consent, he performed unwanted manipulations, repeatedly and forcefully hyperextending my elbow.” Severance argues “Howe‘s actions . . . constitute a willful disregard of Severance‘s previous refusal . . . to have his elbow treated by Howe.” Howe presents a different version of the events. But these factual disagreements have no bearing on whether a claim for medical battery exists in North Dakota or whether Severance pleaded facts to support such a claim. Battery is a common law tort, and under our notice pleading rules, Severance pleaded facts sufficient to raise a battery claim.
[¶16] Howe argues we should follow Linog v. Yampolsky, 656 S.E.2d 355, 358 (S.C. 2008), which held “no independent cause of action for medical battery exists in South Carolina” and claims against medical providers “involving lack of or revocation of consent” for “a physical touching within the medical context” require expert testimony. We decline to follow Linog to the extent it would foreclose all battery claims based on lack of consent in the medical context. Medical providers are capable of committing battery within the context of the provider-patient relationship. See, e.g., Doe v. Nassar, Case No. 8:18-cv-1117, 2018 WL 6430543, at *1 (C.D. Cal. Aug. 2, 2018) (“Nassar was convicted of sexually molesting minors while serving as a doctor for USA Gymnastics, and Plaintiffs are among his many victims.“); Appell v. Muguerza, 329 S.W.3d 104, 107 (Tex. Ct. App. 2010) (patient alleged doctor punched her in an examination room at the doctor‘s office); Dunford v. Tryhus, 2009 ND 212, ¶ 2, 776 N.W.2d 539 (plaintiff alleged dentist sexually abused him as a child). We decline to remove claims for battery in the medical context from our common law. Whether to
B
[¶17] Severance argues the expert disclosure requirement under
[¶18] Section
“Any action for injury or death alleging professional negligence by [various healthcare providers and institutions] must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. . . . This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient‘s body, or other obvious occurrence.”
[¶19] Statutory interpretation presents a question of law that is fully reviewable on appeal. Gonzales v. Perales, 2023 ND 145, ¶ 4, 994 N.W.2d 183.
“Our primary goal in interpreting statutes is to ascertain the Legislature‘s intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage.”
State v. Gardner, 2023 ND 116, ¶ 7, 992 N.W.2d 535 (quoting State v. Gaddie, 2022 ND 44, ¶ 17, 971 N.W.2d 811).
[20] Howe does not challenge the district court‘s holding that
[21] Howe argues that even if
[¶22] We reverse the dismissal judgment and remand the case for further proceedings.
[¶23] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr