Pierce v. Anderson

Summary

The Supreme Court of North Dakota granted a supervisory writ directing the district court to dismiss Robert Carvell's professional-negligence complaint against Dr. Troy Pierce and the Bone & Joint Center. The court held that Carvell's failure to provide the expert affidavit required by N.D.C.C. § 28-01-46 was not excused by the statute's obvious-occurrence exception because the alleged negligence involved technical surgical diagnosis and treatment beyond a layperson's understanding. The court also concluded that the petitioners lacked an adequate alternative remedy and that the district court had erred in denying their motion to dismiss.

Holdings

1. The Court exercised its discretionary supervisory jurisdiction because the denial of the motion to dismiss contradicted the governing statute and precedent, the case was extraordinary, and Petitioners lacked an adequate alternative remedy.
2. The alleged negligence in choosing to splint rather than surgically repair Carvell's injured middle finger was not an obvious occurrence under N.D.C.C. § 28-01-46 because the determination involved diagnosis and treatment during a technical surgical procedure beyond a layperson's understanding.
3. Because Carvell did not serve the required expert affidavit and the obvious-occurrence exception did not apply, the district court was required to dismiss the professional-negligence complaint without prejudice.

Questions Presented

1. Whether the North Dakota Supreme Court should exercise supervisory jurisdiction over the district court's denial of the motion to dismiss.
2. Whether the alleged failure to surgically repair Carvell's injured middle finger constituted an 'obvious occurrence' exempting him from the expert-affidavit requirement of N.D.C.C. § 28-01-46.
3. Whether the district court erred in denying dismissal when Carvell failed to serve an admissible expert opinion within three months of commencing the professional-negligence action.

Disposition

writ_granted