IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2002 ND 1

Steven Jaskoviak, Plaintiff and Appellant

v.
Daniel Gruver, M.D., Defendant and Appellee and Medcenter
One Health Systems, Defendant

No. 20010065

Appeal from the District Court of Burleigh County, South
Central Judicial District, the Honorable Bruce B. Haskell, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Sandstrom, Justice.
Robert V. Bolinske (on brief), 515 North 4th Street, Bismarck, N.D. 58501,
for plaintiff and appellant.
Robert J. Udland, Vogel, Weir, Hunke & McCormick, Ltd., P.O. Box 1389,
Fargo, N.D. 58107-1389, for defendant and appellee.

Jaskoviak v. Gruver

No. 20010065

Sandstrom, Justice.

[¶1] Steven Jaskoviak appealed a summary judgment
dismissing, without prejudice, his action against Daniel Gruver, M.D.,
and Medcenter One Health Systems (“Medcenter”). We conclude summary judgment
was improperly ordered, and we reverse and remand for further proceedings.

I

[¶2] In 1997, Gruver operated on Jaskoviak at Medcenter’s
hospital. In 1998, Jaskoviak sued Gruver and Medcenter, alleging “Gruver
was negligent in his care and treatment of plaintiff in the surgical procedure
involving the removal of varicose veins,” and Medcenter “was negligent
in employing and permitting an unqualified physician to practice medicine.”
Gruver and Medcenter moved for summary judgment dismissing Jaskoviak’s
action, or for dismissal for failure to comply with N.D.C.C. § 28-01-46,
which provides, in part:

Any action for injury or death against a physician, nurse, or
hospital licensed by this state based upon professional negligence must
be dismissed without prejudice on motion unless the claimant has obtained
an admissible expert opinion to support the allegation of professional
negligence within three months of the commencement of the action or at
such later date as set by the court for good cause shown by the plaintiff.
. . . This section does not apply to alleged lack of informed consent
. . . or . . . obvious occurrence.

[¶3] Jaskoviak moved to amend his complaint to
add an additional paragraph, “essentially as follows”:

That, further, defendants Gruver and Medcenter One Health Systems
failed to obtain plaintiff Steven Jaskoviak’s informed consent for the
procedures involved in this action.

[¶4] On December 27, 2000, the trial court dismissed
the negligence claim against Gruver for failure to comply with N.D.C.C.
§ 28-01-46, and dismissed the negligence claim against Medcenter,
because “nothing has been submitted establishing an admissible expert
opinion on the issue of whether Medcenter was negligent in hiring or permitting
Gruver to practice at Medcenter.” Although the trial court recognized
N.D.C.C. § 28-01-46 does not apply to Jaskoviak’s informed consent
claim, the trial court granted summary judgment dismissing the informed
consent claim for lack of an expert opinion, explaining:

The only remaining claim is that Gruver failed to obtain Steven
Jaskoviak’s informed consent. While § 28-01-46 does not apply to
this issue in terms of whether an expert opinion must be provided, it
is clear that establishing a violation of the requirements of informed
consent does require expert testimony. The only expert evidence of negligence
that has been presented in this case is Dr. Hamar’s affidavit, wherein
he states (1) what options were available to the plaintiff, (2) that a
physician has a duty to explain alternative treatments and the risks of
each, and (3) that, if the plaintiff was not so informed, such failure
would constitute medical negligence.

The Note to North Dakota Civil Pattern Jury Instruction C-14.20
states: “Expert testimony is generally necessary to identify the risks
of treatment, their gravity, the likelihood of occurrence, and reasonable
alternatives.” Dr. Hamar’s affidavit sets out reasonable alternatives,
but does not establish any of the other requirements. Nor does any other
evidence presented by the plaintiff do so. Further, the plaintiff has
provided no evidence establishing the general elements of medical negligence,
those being the standard of care applicable, the defendant’s failure to
meet the standard of care, and that the defendant’s failure to meet the
standard of care caused the plaintiff’s alleged damages.

[¶5] A judgment of dismissal without prejudice
was entered January 9, 2001. On January 12, 2001, Jaskoviak moved for
reconsideration. The trial court denied Jaskoviak’s motion for reconsideration.
Jaskoviak appealed. Jaskoviak later agreed to the voluntary dismissal
of his appeal of that part of the judgment dismissing his claims against
Medcenter.

[¶6] Jaskoviak contends the judgment is appealable,
the trial court erred in denying his motion for reconsideration, and the
trial court erred in granting Gruver’s motion for summary judgment. Gruver
contends the judgment is appealable, the informed consent issue was not
properly before the trial court, the trial court properly denied Jaskoviak’s
motion for reconsideration, and the trial court properly granted summary
judgment.

[¶7] The trial court had jurisdiction under N.D.
Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was
timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D.
Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶8] The judgment of dismissal entered in this
case specified it was without prejudice. “[A] dismissal without prejudice
is ordinarily not appealable.” Rodenburg v. Fargo-Moorhead Young Men’s
Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407. “However,
a dismissal without prejudice may be final and appealable . . . if the
dismissal has the practical effect of terminating the litigation in the
plaintiff’s chosen forum.” Id. If the dismissal stands, Jaskoviak
will be barred from bringing another action by N.D.C.C. § 28-01-18(3),
which sets a two-year statute of limitations for malpractice. Thus, as
in Rodenburg, the judgment of dismissal without prejudice in this
case “effectively forecloses litigation in the courts of this state,”
and, we conclude, it “is, therefore, appealable.” Id. at ¶
12.

III

[¶9] Gruver contends the trial court abused its
discretion in granting Jaskoviak’s motion to amend the complaint, and
contends Jaskoviak’s appeal should be dismissed because, although the
trial court granted his motion to amend the complaint to add a claim that
Gruver and Medcenter failed to obtain his informed consent, Jaskoviak
never served an amended complaint. We will not reverse a trial court’s
decision to grant or deny a motion to amend pleadings absent an abuse
of discretion. Messiha v. State, 1998 ND 149, ¶ 7, 583 N.W.2d
385. We conclude the trial court did not abuse its discretion in granting
the motion to amend. This Court has held that when a motion to amend a
complaint has been granted, the plaintiff must affirmatively redraw the
complaint to effect an amendment or the amendment is deemed abandoned,
Hausken v. Coman, 268 N.W. 430, 431, Syll. ¶ 2 (N.D. 1936),
leaving “no issue framed in the pleadings,” Clark v. Ellingson,
161 N.W. 199, 201 (N.D. 1916). See also Nelson v. Adams USA,
Inc., 120 S.Ct. 1579, 1584 (2000) (where a motion to amend a complaint
to add a defendant was granted and judgment was entered without an amended
pleading having been composed, served, and filed, and the defendant was
not afforded ten days to state his defenses, “the proceedings did not
comply with Rule 15, and neither did they comport with due process”).
Here, however, a copy of the proposed amendment was served with the motion
to amend, and Gruver was not disadvantaged. Furthermore, Gruver did not
raise the lack of service of an amended complaint as an issue in the trial
court. An issue not raised in the trial court cannot be raised for the
first time on appeal. Moilan v. Moilan, 1999 ND 103, ¶ 32
n.2, 598 N.W.2d 81.

IV

[¶10] Jaskoviak contends the trial court erred
in denying his motion for reconsideration. A judgment of dismissal without
prejudice was entered January 9, 2001. On January 12, 2001, Jaskoviak
moved for reconsideration, supporting his motion with an affidavit of
Dr. Martin L. Bell, a brief, and his own affidavit, averring, among other
things, he would not have undergone the surgery performed by Gruver if
Gruver had properly advised him about available alternatives for treating
his condition. The trial court ruled “[t]he materials provided supporting
the Motion do not provide a basis for the Court to change its ruling.”
Evidence submitted with a motion for reconsideration after summary judgment
has been granted is untimely, and this Court “need not examine whether
it is sufficient to raise a genuine factual issue.” Follman v. Upper
Valley Spec. Educ. Unit, 2000 ND 72, ¶ 12 n.5, 609 N.W.2d 90.
Because the affidavits submitted in support of Jaskoviak’s motion for
reconsideration were submitted after summary judgment was issued, they
were untimely and we need not determine whether they were sufficient to
raise a genuine factual issue precluding summary judgment.

V

[¶11] Jaskoviak contends the trial court erred
in granting Gruver’s motion for summary judgment. We recently explained
our review of summary judgments:

We review this appeal in the posture of summary judgment, which
is a procedural device for the prompt and expeditious disposition of a
controversy without a trial if either party is entitled to judgment as
a matter of law, and if no dispute exists as to either the material facts
or the inferences to be drawn from undisputed facts, or if resolving disputed
facts would not alter the result. Reed v. University of North Dakota,
1999 ND 25, ¶ 7, 589 N.W.2d 880. On appeal, we review the evidence
in the light most favorable to the party opposing the motion, and we give
that party the benefit of all favorable inferences which reasonably can
be drawn from the evidence. Id. Although the party seeking summary
judgment must initially demonstrate there is no genuine issue of material
fact, the party resisting the motion may not simply rely upon the pleadings
or upon unsupported conclusory allegations. Engel v. Montana Dakota
Utils., 1999 ND 111, ¶ 7, 595 N.W.2d 319. A party resisting a
summary judgment motion must present competent admissible evidence by
affidavit or other comparable means which raises an issue of material
fact, and must, if appropriate, draw the court’s attention to relevant
evidence in the record raising an issue of material fact. Id. Summary
judgment is proper against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case
and on which that party will bear the burden of proof at trial. Id.
Issue[s] of fact may be appropriate for summary judgment if reasonable
minds can draw only one conclusion from the evidence. Opp v. Source
One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101.

[¶12] “Our caselaw generally requires that the
plaintiff establish through expert testimony the degree of care and skill
required of a physician, and whether specified acts fall below that standard
of care,” Greenwood v. Paracelsus Health Care Corp., 2001 ND 28,
¶ 13, 622 N.W.2d 195, unless “a physician’s activity constitutes
a blunder so egregious that a layman is capable of comprehending its enormity,”
Winkjer v. Herr, 277 N.W.2d 579, 585 (N.D. 1979). This Court has
recognized “trial courts should be extremely cautious in entering summary
judgment in medical malpractice cases because of a lack of expert testimony.”
Winkjer, at 589. Nevertheless, summary judgment may be proper if
the plaintiff has failed to indicate he or she has or will be able to
obtain expert medical opinion to support his or her informed consent allegations
and the defendant has met the requirement of showing there is no genuine
issue of fact. Id.

[¶13] Jaskoviak’s claim is based on Gruver’s alleged
failure to obtain Jaskoviak’s informed consent before the surgery. “[T]he
doctrine of informed consent is a form of negligence which essentially
relates to a duty of a doctor to disclose pertinent information to a patient.”
Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D. 1983). “The root
premise in informed-consent cases is the fundamental concept stated by
Justice Cardozo: ‘Every human being of adult years and sound mind has
a right to determine what shall be done with his own body.’ (Citation
omitted)” Buzzell v. Libi, 340 N.W.2d 36, 40 (N.D. 1983). A plaintiff
in an informed-consent case must establish breach of a physician’s duty
of disclosure, causation, and injury. Id. See also Guidry
v. Neu, 708 So.2d 740, 743 (La. Ct. App. 1997) (plaintiff must show
the existence of a material risk, which the physician failed to disclose,
and a causal connection between the disclosure failure and the actual
risk sustained); 2 J.D. Lee and Barry A. Lindahl, Modern Tort Law
§ 25:35 (Rev. ed. 1989) [hereinafter Modern Tort Law] (plaintiff
must show the existence of a material risk unknown to the plaintiff, a
failure to disclose that risk, causation, and injury); 1 Dan B. Dobbs,
The Law of Torts § 250 (2001) (“Dobbs“) (plaintiff
must establish nondisclosure of required information, actual damage resulting
from the undisclosed risk, causation, and 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.”
Buzzell, 340 N.W.2d at 40. See also 2 Modern Tort Law,
supra, at § 25:48 (patient can establish a causal connection
between an injury and the physician’s failure to disclose by showing “that
had there been a proper disclosure, the patient would not have consented
to the treatment”).

[¶14] “Whenever a plaintiff alleges a potential
complication arose from a known but undisclosed risk, . . . the courts
are divided on whether the action should be deemed a battery or negligence.”
Winkjer, 277 N.W.2d at 587. This Court has adopted the negligence
theory:

Although there is authority to the contrary, we find persuasive
the modern trend that in cases such as this when . . . “the doctor in
obtaining consent may have failed to meet his due care duty to disclose
pertinent information” . . . that failure should be termed one in negligence.
Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 512, 502 P.2d
1, 8 (1972); Cornfeldt v. Tongen, 262 N.W.2d 684 (Minn. 1977).

[¶15] “Generally there exists as an integral part
of the physician’s overall obligation to his patient the duty of reasonable
disclosure of the available choices with respect to the proposed therapy
and of the material and known risks potentially involved in each.” Winkjer,
277 N.W.2d at 587. A more difficult question is “the extent of the duty
and the standard by which it should be measured.” Id.

[¶16] “The majority of the courts have related
the duty to the custom of the physician practicing in the community.”
Winkjer, 277 N.W.2d at 587. “The professional standard, once the
prevailing view, has come under sustained criticism in recent years.”
2 Modern Tort Law, supra, at § 25:46, citing Largey
v. Rothman, 540 A.2d 504 (N.J. 1988); Culbertson v. Mernitz,
602 N.E.2d 98 (Ind. 1992).

An increasing number of courts have adopted an “objective”
or “material-risk” standard, also referred to as the “patient rule.” .
. . [T]he test is whether the physician disclosed all those facts, risks
and alternatives that a reasonable person in the situation which the physician
knew or should have known to be the plaintiff’s would deem significant
or material in making a decision to undergo the recommended treatment,
the “prudent patient” standard.

A growing number of jurisdictions have adopted the persuasive
reasoning of the lead case of Canterbury v. Spence, 150 U.S. App.
D.C. 263, 464 F.2d 772 (1972), cert. denied 409 U.S. 1064, 93 S.Ct.
560, 34 L.Ed.2d 518 stating that . . . a patient’s cause of action is
not limited to the existence and nonperformance of a relevant professional
tradition. These courts have stated a patient’s right of self-determination
in particular therapy demands a standard set by law for physicians rather
than one which physicians may or may not impose upon themselves. As stated
in Canterbury at page 276, 464 F.2d at page 785:

“. . . We hold that the standard measuring performance of that
duty by physicians, as by others, is conduct which is reasonable under
the circumstances.” [Footnotes omitted.]

“Thus the test for determining whether a particular peril must
be divulged is its materiality to the patient’s decision: all risks potentially
affecting the decision must be unmasked.” [Footnote omitted.]

[¶17] In acquiring a patient’s informed consent
to a medical procedure, a physician should disclose a number of things:

It is sometimes said that the physician should disclose the
diagnosis, the general nature of the contemplated procedure, the material
risks involved in the procedure, the probability of success associated
with the procedure, the prognosis if the procedure is not carried out,
and the existence and risks of any alternatives to the procedure.

[¶18] Assessing the materiality of a risk involves
a two-pronged analysis: (1) “an examination of the existence and nature
of the risk and the probability of its occurrence”; and (2) “a determination
by the trier of fact of whether the risk is the type of harm which a reasonable
patient would consider in deciding on medical treatment.” Guidry,
708 So.2d at 744. The materiality of information about the risk of a potential
injury is a function of the severity of the potential injury and of the
likelihood it will occur. 2 Modern Tort Law, supra, at §
25:46; 1 Dobbs, supra, at § 251. A physician is not
required to inform a patient of risks that are so remote as to be negligible
even where the consequences may be severe, and is not required to inform
the patient of a very minor consequence even though the probability is
high. 2 Modern Tort Law, supra, at § 25:46. Thus, as
this Court recognized in Winkjer, 277 N.W.2d at 588:

A duty to disclose can arise only if the physician knew or
should have known of the risks to be disclosed. Cornfeldt v. Tongen,
supra. Also, a physician is not required to disclose all possible
risks and dangers of the proposed procedure but only those that are significant
in terms of their seriousness and likelihood of occurrence. There is no
need to disclose risks of little consequence, those that are extremely
remote, or those that are common knowledge as inherent in the treatment.
Cobbs v. Grant, supra, 104 Cal.Rptr. at 515, 502 P.2d at
11.

[¶19] “[E]xpert medical testimony is generally
necessary to identify the risks of treatment, their gravity, likelihood
of occurrence, and reasonable alternatives.” Winkjer, 277 N.W.2d
at 588. “The necessity for expert testimony is particularly so when such
information is outside the common knowledge of laymen.” Id. “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.”
2 Modern Tort Law, supra, at § 25:46. “However, experts
may be required to show both that material information existed and that
the defendant should reasonably have known about it.” 1 Dobbs,
at 656.

[¶20] In responding to Jaskoviak’s motion to amend
his complaint to allege a lack of informed consent and requesting summary
judgment of dismissal, Gruver submitted a February 17, 1997, medical record
stating:

Steven Jaskoviak is in for vein stripping. Note the H &
P. I explained the possible complications of surgery including infection,
postop pain, and recurrence of pain.

Since his vein stripping, he has had considerable discomfort
from the mid-thigh to the mid-calf area, both lower extremities to the
point where he cannot walk very much. He says it just hurts all the time.
. . . He has a numbness . . . and he also had some discoloration of the
right lower extremity where the vein had been excised and he was concerned
about that.

. . . .

At this point in time, I have discussed with him what the complications
of varicose vein surgery are which essentially entail what he has going
on here. They are known complications. The pigmentation is not something
that is probably going to go away at this point in time. The numbness
is certainly not going to go away and his incisions have healed. The gaiter
area is not going to improve. There is nothing surgically that can remove
this. He does need to wear Jobst Varix compression hose 30-40 mm. of mercury
knee-high bilaterally and should do this for the remainder of his lifetime
and I have told him that.

[¶21] Jaskoviak supported his response to the
motions for dismissal with an affidavit of Dr. Hamar, which stated, in
part:

3. I have seen Steven Jaskoviak on several occasions. It is
my opinion that prior to surgery Mr. Jaskoviak should be or have been
informed of the options and/or alternative treatments for varicose veins.
These include (1) to inject them with a sclerosing solution (2) to remove
them by the stripping operation or (3) to treat them with pressure elastic
stockings.

4. It is my further opinion that a physician has a duty to
inform the patient as to the nature of the procedure to be performed,
the purpose it will serve, the alternatives involved and the dangers and
risks of serious complications inherent in the procedure. The risks and
benefits of each alternative procedure must also be explained.

5. Before performing the vein stripping procedure performed
on Mr. Jaskoviak, had I been his physician, I would have informed him
of each of the alternative treatment procedures available and would have
specifically advised him of the risks and benefits of each. If this was
not done it would, in my opinion, constitute medical negligence in that
Mr. Jaskoviak was not provided with sufficient information to give his
informed consent to the surgical procedure performed by Dr. Gruver.

At no time before the operation did Dr. Gruver tell me anything
about what was going to happen. He never explained to me that I’ll be
scarred for life like Dr. Hamar told me. He never told me that I would
need to wear corrective Jobst socks for the rest of my life. He never
told me that I would lose all my strength and not be able to do the things
that I did before.

[¶22] Dr. Hamar’s affidavit addressed alternative
treatments for Jaskoviak’s varicose veins; stated a physician’s general
duty to disclose the nature and purpose of a proposed procedure, the risks
involved in the procedure, alternatives to the procedure, and the risks
and benefits involved in the alternatives; and said a failure to disclose
those things would constitute medical negligence. In his May 4, 1998,
medical record, Dr. Hamar states the “known complications” of varicose
vein surgery “essentially entail what [Jaskoviak] has going on here.”

[¶23] In our view, the affidavits of Jaskoviak
and his expert, Dr. Hamar, together with Dr. Hamar’s May 4, 1998, medical
record, set forth evidence of the standard of care to be met by Gruver,
Gruver’s failure to meet the required standard of care, injury, and causation.
Considered with Gruver’s February 17, 1997, medical record, this evidence
raises a genuine issue of material fact as to whether Gruver failed to
obtain Jaskoviak’s informed consent to the surgery, by failing to inform
Jaskoviak of the nature of the procedure to be performed, its purpose,
alternatives, and the dangers and risks involved in the procedure. We
therefore conclude summary judgment of dismissal was improperly ordered.

VI

[¶24] The judgment is reversed, and the matter
is remanded for further proceedings.

[¶26] The Honorable William W. McLees, D.J., sitting
in place of Kapsner, J., disqualified.