bounty hunters’ search of the home, they did not direct the bounty
hunters to search the home. Instead, the bounty hunters acted only
in their own interest rather than that of the officers, and the officers
merely secured a perimeter around the home for the purpose of
ensuring safety. The Supreme Court stated the dispositive issue on
appeal is not whether the bounty hunters had a legal right to enter
the home, but rather whether any action by the officers converted
the bounty hunters’ private search into a warrantless government
search. Because the police officers’ presence was only for safety
purposes an d not to assist or cooperate with the bounty hunters’
search, the search was purely private, nongovernmental, and thus
the defendant’s Fourth Amendment rights were not implicated
or violated. The District Court’s criminal judgment against the
defendant was affirmed.
Cartwright v. Tong, MD, 2017 ND 146
This is a civil medical malpractice case. N.D.C.C. § 28-01-46
requires a court to dismiss without prejudice a medical malpractice
claim 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 statute attempts to minimize
frivolous claims by requiring the plaintiff to produce an admissible
expert opinion to support the allegations of professional negligence,
in the early stages of the litigation. Exceptions to the requirement
of this affidavit are when there is an unintentional failure to remove
a foreign substance from within the body of a patient after the
surgery or performance of a medical procedure upon the wrong
patient, organ, limb, or other part of the patient’s body, or other
obvious occurrence.
In this case, the plaintiff had a baby delivered by the defendant
via a cesarean section delivery. Plaintiff stated that, following the
delivery of the baby, she requested the defendant to perform a
fallopian tubal ligation. However, instead of tying off her fallopian
tubes, the defendant removed them. Plaintiff sued the doctor for
medical malpractice because she was now permanently sterilized
and no longer able to bear children nor was there the ability to
reverse the procedure in order to bear children. Plaintiff claimed
she would have had the procedure reversed if in fact a tubal
ligation had been performed as she said she requested. After suing
the defendant for medical malpractice, plaintiff did not obtain
an admissible expert affidavit/opinion within three months of
commencement of her suit. The District Court, following the
statute, dismissed the plaintiff ’s complaint without prejudice.
However, apparently the two-year medical malpractice statute of
limitations expired. Accordingly, because the dismissal without
prejudice completely terminated the plaintiff ’s claim (i.e., the two-
year statute of limitations ran), the judgment of dismissal without
prejudice was appealable.
On appeal, the North Dakota Supreme Court stated the alleged
medical malpractice was not so obvious, such that the requirement
of the expert affidavit did not apply. Because the surgery involved
technical surgical procedures beyond the common knowledge of
lay persons, the claimed medical malpractice was not so obvious
to preclude the requirement of the admissible affidavit. Thus the
“obvious occurrence” exception did not apply. Moreover, the Supreme
Court stated the “wrong organ” exception also did not apply because
the surgeon’s allegedly negligent work was on the correct organ.
Instead of tying off the fallopian tubes, he removed them. He did
not perform the procedure on the wrong organ. He operated on the
correct organ; he simply performed the wrong procedure on it. Thus,
this exception to the requirement of an affidavit also did not apply.
In arriving at that opinion, the Supreme Court utilized the rule of
statutory interpretation that words in a statute must be given their
plain, ordinary, and commonly understood meaning. The common
meaning of the word “wrong” is plain and clear. It simply means the
doctor would have had to perform the procedure on an incorrect or
different organ than the one that was supposed to be worked on. In
this case, he did not. Instead, the doctor performed his procedure on
the correct organ; he simply performed the wrong procedure. That
did not, however, save the plaintiff ’s case from the application of the
expert affidavit requirement.
The North Dakota Supreme Court affirmed the District Court’s
judgment, dismissing the plaintiff ’s medical malpractice case.
SNAPS Holding Company v. Leach, 2017 ND 140
This is a civil case for damages alleging breach of a stock purchase
agreement. Among other aspects of the decision, the Supreme Court
said that notwithstanding N.D.C.C § 9-06-04(2), part of the North
Dakota Statute of Frauds provisions, an indemnity agreement is
not required to be in writing as nothing in N.D.C.C. Chapter 22-
02 requires that. Thus, a contract of indemnity may be created by
express (written) agreement or by implication. The Supreme Court
stated that nothing in the Statutory Indemnity chapter, namely
N.D.C.C. Chapter 22-02, relating to indemnity, requires a contract
for indemnity to be in writing. Citing an earlier Supreme Court
decision, the Court reiterated a right of indemnity may arise by
express agreement or by implication. Therefore, under this decision,
a contract of indemnity need not be expressed, but may exist if the
evidence establishes an implied contract.
Michael J. Morley received his juris
doctor with distinction and was
admitted to the Order of the Coif upon
graduation from the University of North
Dakota School of Law in 1979. That
same year, he was admitted to practice
law in North Dakota State Courts and
the United States District Courts for the
District of North Dakota. In 1981, he
was admitted in the Minnesota State
Courts and the United State District
Court for the District of Minnesota, as well as the United States
Court of Appeals for the Eighth Circuit. He is a member of the
State Bar Associations of North Dakota and Minnesota and is
currently president and shareholder of Morley Law Firm, Ltd.,
in Grand Forks.
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