BISMARCK, N.D. (Legal Newsline) – The North Dakota Supreme Court has upheld the decision of a lower court in a case in which a doctor allegedly removed the fallopian tubes of a patient without consent.
The incident occurred in May 2012 when Roxane Cartwright underwent a cesarean section and had agreed to have Dr. Beverly Tong perform a tubal ligation at the same time.
However, Dr. Tong ended up removing the patient’s tubes rather than just tying them. Roxane and Tim Cartwright ended up suing both Dr. Tong and the Great Plains Women’s Health Center after they discovered what had happened nearly two years later. Roxane had requested a reversal of the ligation procedure so the couple could have another child but was told that was not possible.
The defendants filed for summary judgment in 2016, which was granted by the Williams County District Court.
The district court dismissed the case without prejudice, “because they failed to file an affidavit containing an admissible expert opinion supporting a prima facie case of medical malpractice within the statutory timeline,” the decision states.
This requirement for an expert opinion was how lawmakers tried to eliminate “frivolous claims,” according to the Supreme Court decision.
The Cartwrights said they did not seek an expert in this case as they believed there were two exceptions to the requirement that applied to them, including the "wrong organ" and "obvious occurrence" exceptions.
"(T)he 'wrong organ' exception does not apply to the facts of this case," Justice Daniel Crothers wrote for the majority.
"The surgeries here require a procedure on the fallopian tubes. Tong performed a procedure on the correct organ - the fallopian tubes. Tong performing a procedure, that was allegedly not consented to, on the correct organ does not constitute a procedure on the wrong organ."
Justice William Herauf dissented, indicating that he believed the obvious occurrence exception applied to the case.
However, the majority claimed that the obvious occurrence exception applied only to cases that are within the knowledge of a layperson, something the defendants have stated was not the case in this procedure.