Petition for Writ of Certiorari — Jacob I. Severson, Petitioner v. Shabnum Gupta, et al.

20240292 - Filed 05-22-2025

NORTH DAKOTA SUPREME COURT

Appendix A

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

JUDGMENT

Supreme Court No. 20240292

Cass County District Court No. 09-2024-CV-00141

Jacob I. Severson,

v.

Dr. Shabnum Gupta, Sanford Health

Network North, and Sanford Medical

Center Fargo,

[11]

Plaintiff and Appellant

Defendants and Appellees

This appeal was considered by the Court at the March Term of Court and an

opinion was filed. The Court considered the matter, and

[12]

IT IS ORDERED AND ADJUDGED that the judgment of the district court is

AFFIRMED.

[13]

IT IS FURTHER ORDERED AND ADJUDGED that Dr. Shabnum Gupta, Sanford

Health Network North, and Sanford Medical Center Fargo have and recover from Jacob

I. Severson costs and disbursements on this appeal under N.D.R.App.P. 39, to be taxed

and allowed in the court below.

[14]

This judgment will be final upon disposition of a petition for rehearing, if any is

filed, or when the time for filing such petition has expired and the mandate of this Court

issued.

[15]

This judgment, together with the opinion of the Court, constitutes the mandate

of the Supreme Court on the date it is issued to the district court under N.D.R.App.P.

41.

[16]

Dated: 5/22/2025

Jon J. Jensen

Chief Justice

Attest:

Petra H. Mandigo Hulm

Clerk

la

20240292 - Hied 05-22-2025

NORTH DAKOTA SUPREME COURT

Case Highlight

Severson v. Gupta, et al. - No. 20240292

An appeal from a district court judgment granting a motion for summary

judgment is reviewed under the de novo standard.

N.D.R.Civ.P. 56 allows a court to grant summary judgment for 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.

A district court did not err granting a motion for summary judgment dismissing

a claim of medical malpractice because the plaintiff failed to provide an affidavit

Containing an expert opinion as required by N.D.C.C. § 28-01-46.

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20240292 - Filed 05-22-2025

NORTH DAKOTA SUPREME COURT

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2025 ND 101

Jacob I. Severson,

Plaintiff and Appellant

v.

Dr. Shabnum Gupta, Sanford Health Network North,

and Sanford Medical Center Fargo,

Defendants and Appellees

No. 20240292

Appeal from the District Court of Cass County, East Central Judicial District, the

Honorable Cherie L. Clark, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Jacob I. Severson, Fargo, ND, plaintiff and appellant.

Matt A. Paulson (argued) and Randall S. Hanson (appeared), Grand Forks, ND,

for defendants and appellees.

3a

Severson v. Gupta, et al.

No. 20240292

Crothers, Justice.

[Hl] Jacob Severson appeals from a district court judgment granting the

defendants' motion for summary judgment and denying his motion to amend

his complaint. We affirm.

I

[^[2] In December 2021, Jacob Severson saw Dr. Gupta at a Sanford facility in

Fargo for removal of four genital warts. Dr. Gupta froze the warts using

cryotherapy. After the procedure, Severson experienced blistering and scarring

to the genital area. Severson returned to Sanford multiple times to address the

blistering and scarring. In August 2022, Severson sought professional help for

mental health issues he claimed were related to the procedure. In February 2022,

Severson went to a dermatologist for the treatment of additional genital warts.

Severson elected to again have the warts frozen using cryotherapy. In December

2023, Severson was referred to the urology department at Sanford for concerns

about a physical abnormality. In January 2024, Severson sued Sanford and Dr.

Gupta for medical malpractice.

II

[H3] Severson argues the district court erred in granting the defendants' motion

for summary judgment. Severson claims that while he did not have an expert

affidavit, his claim falls under two exceptions to the N.D.C.C. § 28-01-46 expert

opinion requirement.

[H4] "Whether the trial court properly granted summary judgment is a question

of law which [this Court] review[s] de novo on the entire record." Green v. Mid

Dakota Clinic, 2004 ND 12,15, 673 N.W.2d 257.

"On appeal, [this Court] review[s] 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. The party moving for summary judgment

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bears the burden of establishing there is no genuine issue of material

fact and that, under applicable principles of substantive law, he is

entitled to judgment as a matter of law."

Id. (cleaned up).

[*15] Rule 56, N.D.R.Civ.P., allows a court to grant summary judgment "for

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." Green, 2004 ND 12, 5.

[516] Section 28-01-46, N.D.C.C., applies to medical negligence claims and

states:

"Any action for injury or death alleging professional

negligence by a physician, nurse, hospital, or nursing, basic, or

assisted living facility licensed by this state or by any other health

care organization, including an ambulatory surgery center or group

of physicians operating a clinic or outpatient care facility, 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. The court

may set a later date for serving the affidavit for good cause shown

by the plaintiff if the plaintiffs request for an extension of time is

made before the expiration of the three-month period following

commencement of the action."

[^7] Severson concedes he did not submit an expert affidavit within the time

required by N.D.C.C. § 28-01-46, and he did not request an extension to file an

affidavit. Instead, Severson argues his claim falls under the obvious occurrence

exception to the statute. See N.D.C.C. § 28-01-46 (stating "[t]his section does not

apply to .. . [the] performance of a medical procedure upon the wrong patient,

organ, limb, or other part of the patient's body, or other obvious occurrence").

[<H8] This Court has explained the obvious occurrence exception as follows:

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"expert testimony is not required to establish a duty, the breach of

which is a blunder so egregious that a layman is capable of

comprehending its enormity. This 'obvious occurrence' exception

applies only to cases that are plainly within the knowledge of a

layperson. In an 'obvious occurrence' case, expert testimony is

unnecessary precisely because a layperson can find negligence

without the benefit of an expert opinion."

Johnson v. Bronson, 2013 ND 78, *][ 12,830 N.W.2d 595 (cleaned up).

[19] Severson went to Sanford for treatment of genital warts. Dr. Gupta treated

the warts with cryotherapy. Severson experienced blistering and scarring from

the procedure. Sanford contends the blistering and scarring are outcomes that

do not show the treatment was outside the standard of care. Severson argues the

procedure was negligently performed and caused him harm. The district court

determined that, while lay people are aware of cryotherapy, they do not know

of the intricacies of the procedure or any abnormal adverse results from the

procedure. The court also rejected Severson's argument that the wrong organ

exception applies because the correct organ, Severson's skin, was the desired

treatment location. Because Severson's claim does not involve an "obvious

occurrence" of medical negligence and was not a procedure performed on the

wrong organ, under N.D.C.C. § 28-01-46 Severson was required to provide an

expert affidavit within three months of commencing the lawsuit.

[110] Because the facts are not in dispute, and Severson failed to comply with

the requirements in N.D.C.C. § 28-01-46, the district court did not err in granting

summary judgment in favor of the defendants.

ni

[111] Severson argues the district court erred in denying his motion to amend

the complaint changing his claim from a medical malpractice to medical battery

due to an alleged lack of consent.

[112] This Court reviews an appeal of the denial of a motion to amend a

complaint under the abuse of discretion standard. Grandbois and Grandbois, Inc.

v. City of Watford City, 2004 ND 162,111, 685 N.W.2d 129.

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"A motion to amend a complaint is governed under Rule

15(a), N.D.R.Civ.P., which provides, in part: [a] party's pleading

may be amended once as a matter of course at any time before a

responsive pleading is served or, if the pleading is one to which no

responsive pleading is permitted and the action has not been placed

upon the trial calendar, the party may so amend it at any time within

20 days after it is served. Otherwise a party's pleading may be

amended only by leave of court or by written consent of the adverse

party; and leave shall be freely given when justice so requires."

Id. (cleaned up). This Court has held:

"Once a responsive pleading has been served, a complaint may be

amended only by leave of court or by written consent of the adverse

party. A motion to amend a complaint under N.D.R.Civ.P. 15(a) lies

within the sound discretion of the trial court, and we will not disturb

the court's decision denying the motion absent an abuse of

discretion. A trial court abuses its discretion only when it acts

arbitrarily, unconscionably, or unreasonably, or when its decision is

not the product of a rational mental process leading to a reasoned

determination."

Id. (cleaned up).

[^[13] Here, the district court determined Severson's motion to amend was filed

after the defendants answered. See N.D.R.Civ.P. 15(a)(2). After a responsive

pleading, "a party may amend its pleading only with the opposing party's

written consent or the court's leave." Id. The defendants did not consent;

therefore, any amendment of the complaint required leave of court. Id.

[H14] The district court denied Severson's motion determining the amendment

would be futile. This Court has held:

"If leave to amend is sought before discovery is complete and

neither party has moved for summary judgment,. . . amendment is

not deemed futile as long as the proposed amended complaint sets

forth a general scenario which, if proven, would entitle the plaintiff

to relief against the defendant on some cognizable theory. If,

however, leave to amend is not sought until after discovery has

closed and a summary judgment motion has been docketed, the

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proposed amendment must be not only theoretically viable but also

solidly grounded in the record. In that type of situation, an

amendment is properly classified as futile unless the allegations of

the proposed amended complaint are supported by substantial

evidence."

Darby v. Swenson Inc., 2009 ND 103, 1 12, 767 N.W.2d 147.

[115] The district court noted that Severson's motion to amend his complaint

came after the defendants' summary judgment motion was filed, and the motion

relied on the same facts already in the record. The court concluded nothing in

the record showed Severson did not consent to the procedure. The court also

relied on a Minnesota case holding a failure to disclose the extent of touching

may constitute a battery claim but "[c]onsent, however, is not rendered void

when a patient is touched in exactly the way to which he or she has consented."

Kohoutek v. Hafner, 383 N.W.2d 295,299 (Minn. 1986).

[116] The district court's decision denying Severson's motion to amend the

complaint was based on a correct reading of the law, as applied to the facts of

this case. The court therefore did not abuse its discretion denying Severson's

motion to amend the complaint.

IV

[117] We affirm the district court judgment granting the defendants' motion for

summary judgment and denying Severson's motion to amend the complaint.

[118] Jon J. Jensen, CJ.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

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STATE OF NORTH DAKOTA

Appendix B

COUNTY OF CASS

IN DISTRICT COURT

EAST CENTRAL JUDICIAL DISTRICT

Jacob I. Severson,

Plaintiff,

vs.

Dr. Shabnum Gupta. Sanford Health Network

North, and Sanford Medical Cents- Fargo,

Defendants.

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S MOTION

TO AMEND

File No. 09-2024-CV-00141

This matter is before the Court on a Motion for Summary Judgment filed by Defendants,

Dr. Shabnum Gupta (“Dr. Gupta”), Sanford Health Network North, and Sanford Medical Center

Fargo (collectively, “foe Defendants”). The Defendants request summary judgment in their favor

due to the undisputed material facts showing that Plaintiff, Jacob Severson (“Severson”), has failed

to serve an affidavit containing, an admissible expert opinion in support of his professional

negligence claim, as required by N.D.C.C. § 28-0.1-46. Severson contends this affidavit is not

required because this case involves an exception to the statute.

[^2]

This matter is also before the Court on a Motion to Amend Complaint to Medical Battery

filed by Severson. Severson seeks to amend this case from medical malpractice to medical battery,

asserting there was no consent for Dr. Gupta to treat the healthy parts of his body. The Defendants

oppose the motion on the grounds that foe amendment would be futile.

[TJ3]

A hearing was held on both motions on July 16. 2024. Present in person on behalf of the

Defendants was Attorney Randall Hanson. Severson appeared in person pro se.

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[14]

The Court, having reviewed the parties’ submissions and the entire record in this matter,

GRANTS the Defendants’ Motion for Summary Judgment and DENTES Severson’s Motion to

Amend Complaint for the reasons discussed below.

FACTUAL AND PROCEDURAL BACKGROUND

[15]

Severson commenced this action by service of the Summons on Defendants Sanford Health

Network North and Sanford Medical Center Fargo on December 27,2023 and on Defendant Gupta

on January 3, 2024. Docket Nos. 3-5, Service Docs. In his Complaint, Severson alleges that on

December 15,2021, he came under the treatment and care of Dr. Gupta for removal of four genital

warts on his penis shaft. Docket No. 2, Compl. at 1 9. Dr. Gupta used cryotherapy (also known

as liquid nitrogen) to treat Severson’s genital warts. Id. at 111. According to Severson, “[t]here

[was] no discussion of alternatives.” Id, at 19.

[16]

Severson alleges Dr. Gupta froze healthy skin surrounding the warts and his penis shaft is

now permanently damaged and heavily scarred. Id, at 1 15. He also contends there were

“enormous amounts” of chemical applied, which traveled to the end of his penis, damaging glans

and the “wrong end” of Severson’s reproductive organ. Id. at 114. Severson alleges this case is

an “[o]bvious occurrence of Medical Malpractice.” Id_

[17]

The Defendants answered the Complaint on January 17, 2024. Docket No. 12, Answer.

The Defendants admit Dr. Gupta provided medical care to Severson, after having discussed and

received his informed consent, but otherwise deny that Dr. Gupta acted negligently with respect

to the care and treatment. Id. at 11 4, 9, 14-15. The Defendants allege Dr. Gupta exercised the

appropriate degree of skill and learning ordinarily possessed by members of the profession after

obtaining the informed consent of the patient and that any damages allegedly sustained by

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Severson were the result of known and accepted risks and/or complications discussed and accepted

by Severson. Id. at

[*i8]

18-19.

Over three months have passed since commencement of this action. Severson has not

served an affidavit containing an admissible expert opinion in support of his case on the

Defendants. Docket No. 19, Hanson Aff. at. 3. As a result, the Defendants filed a motion for

summary judgment on April 8, 2024, seeking dismissal of this action pursuant to N.D.C.C. § 2801-46. Docket No. 17.

Severson filed his response on April 24, 2024, stating an expert affidavit is not needed in

this action due to the “obvious occurrence rule.” Docket No. 21, Answer Br. at 1. In support of

his claim, Severson states he had a similar cryotherapy procedure performed by another doctor,

Dr. Burton Belknap from Essentia, following his visit to Dr. Gupta. IcL at 51 6. Severson attached

two pictures to illustrate the difference in outcomes from the similar procedures. Id. atr 11; §ee

also Docket Nos. 24-25, Exs. A-B. Severson alleges the standard of care applicable to the case

can be compared by the results of Dr. Gupta’s procedure and Dr. Belknap’s procedure. Docket

No. 21 at

17. He further contends “the relationship of function and effect on sexual organs

following inappropriately applied cryotherapy resulting in organ damage are well within the

ordinary knowledge of laypersons, simply because of the primal nature of that part of the anatomy

of a person and in this case a man’s penis.” Id. at *[ 19.

[*H0] Severson states in his brief that he agreed to having the genital warts frozen with liquid

nitrogen with the goal of killing them and eventually falling off. Id. at 16. He argues that was the

extent of his consent. Id. He states there was no informed consent because there were no warnings

of risks or alternatives to cryotherapy. Id.

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[Cl 1] On May 8, 2024, the Defendants filed a timely reply, along with Severson’s medical

records from Sanford and Essentia as exhibits. Docket Nos. 26-29.

[UT2] On May 17, 2024, Severson filed a Motion to Amend Complaint to Medical Battery with

many exhibits. Docket Nos. 33. 38-105. Severson seeks to amend his Complaint to medical

battery on the theory that no consent was given to freeze beyond the individual warts on his penis

and no consent was given to freeze areas where there were no warts. The Defendants responded

to the motion on June 28,2024, opposing the amendment is because it is futile. Docket No. 107.

LAW AND ANALYSIS

I.

Motion for Summary Judgment

[113] “Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing

of a lawsuit without trial if, after reviewing the evidence in the light most favorable to the

nonmoving party, there are no genuine issues of material fact or conflicting inferences which can

reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of

law.” Van Klootwvk v. Baptist Home. Inc.. 2003 ND 112, 5[ 8, 665 N.W.2d 679. The question

presented in this case is whether N.D.C.C. § 28-01-46 applies. The statute provides, in relevant

part, as follows:

Any action for injury or death alleging professional negligence by a:physician [or]

hospital . . . 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.

N.D.C.C. § 28-01-46.

[5114] The purpose of the statute is to “screen totally unsupported claims and to prevent protracted

litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim.” Johnson

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v. Bronson. 2013 ND 78, $11, 830 N.W.2d 595. To establish a prima facie case of medical

malpractice, “a plaintiff must produce expert evidence establishing the applicable standard of care,

violation of that standard, arid a causal relationship between the violation and the harm complained

of.” Id. at $ 12. “However, expert testimony is not required to establish a duty, the breach of

which is a blunder so egregious thata layman is capable of comprehending its enormity.” Id. This

“obvious occurrence” exception applies only to cases plainly within the knowledge of a layperson.

Id. “[EJxpert testimony is unnecessary precisely because a layperson can find negligence without

the benefit of an expert opinion.” Id.

[$15] In this case, Severson primarily refers to two photographs he submitted,1 comparing the

cryotherapy treatment he received from Dr. Gupta and Dr. Belknap. Docket No, 21, Answer Br.

at$ 11. Severson contends the standard of care can be established, based on this comparison. Id

at$ 17. He argues the “obvious result” from the two similar procedures was a different outcome.

Idat$ 11,

[$1.6] North Dakota has consistently recognized “the importance of an expert affidavit in

professional negligence cases." Pierce v. Anderson. 2018 ND 131, $ 13, 912 N.W.2d 291. To

apply the obvious occurrence.exception to the affidavit requirements of N.D.C.C. § 28-01-46, “the

occurrence that led to the result, not the result itself, must be obvious." Id. Whether this exception

applies is a mixed question of fact and law. Id at $ 10,

[$1.7] In Cartwright v. Tons, the North Dakota Supreme Court examined similar allegations that

a physician exceeded the scope of informed consent when performing a procedure and did not

obtain proper informed consent. 2017 ND 146, $ 9, 896 N.W.2d 638. The plaintiff, Cartwright,

1 Although Severson also submitted an affidavit in support of his brief, his affidavit does not authenticate or properly

identify these photographs for them to be considered as evidence. See Docket No. 22, Severson Aff. at $ 2. Even if

the Court considers them, the conclusion below remains the same.

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claimed she had authorized the physician, Tong, to perform a tubal ligation, but Tong instead

performed a salpingectomy, removing her fallopian tubes. Id. at fl 2. Cartwright alleged the

salpingectomy was performed without her informed consent. Id. Cartwright did not file an expert

affidavit within three months of commencing her suit, alleging, among other things, that the

“obvious occurrence” exception applied based on the lack of consent for the procedure performed.

Id. at T9. The district court dismissed the case for lack of an expert affidavit, jd at fl 4.

[fll8] On appeal, the supreme court agreed that Cartwright’s case was not an “obvious

occurrence.” Id. at fl 14. The supreme court first analyzed Cartwright’s case under the theory that

Tong expanded the original scope of Cartwright’s consent.

While the supreme court

acknowledged it was obvious that Tong performed a surgery that was allegedly different than the

one Cartwright consented to, “the occurrence leading to the result is not obvious.” Id (citing

Greene V. Matthvs. 2017 ND 107, fl 14, 893 N.W.2d 179). The record was silent as to why Tong

performed the salpingectomy, and it was “not obvious that a doctor cannot tie or remove the

fal lopian tubes without inferences of the decision being that of a professional judgment.” Id For

that reason, expert testimony, “(a]t a minimum,” would be required to establish the standard of

care. Id. Additionally, the tubal ligation and salpingectomy procedures and “the medical risks

associated with each procedure are beyond the common understanding of a layperson.” Id

[fll9] The supreme court next analyzed Cartwright’s claim as lack of informed consent. Id at fl

15, “The 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.” Id. “A plaintiffin an informed-consent

case must establish breach of a physician’s duty of disclosure, causation, and injury.” Id

[*r20] Generally, expert medical testimony is necessary in such cases “to identify the risks of

treatment, their gravity', likel ihood of occurrence, and reasonable alternatives.” li at fl 16 (citing

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Jaskoviak v, Gruver. 2002 ND 1,119, 638 N.W.2d 1). “The necessity for expert testimony is

particularly so when such information is outside the common knowledge of laymen. ’ M. Even

under the lay standard, expert testimony may be needed, at the very least, “to establish the

existence of a risk, its likelihood of occurrence, and the type of harm in question.” Id. Expert

testimony may further be required “to show both that material information existed and that the

defendant reasonably should have known about it.” EL

fi|21 ] The supreme court, again, held expert testimony was necessary' for Cartwright’s informed

consent claim. Id, at

17. The procedures at issue were beyond the common knowledge of a

layperson, and the record did not establish the medical risks, gravity, and type of harm associated

with each procedure. Id, Because the obvious occurrence exception did not apply and an expert

affidavit was not served within three months of commencing suit, the supreme court affirmed

dismissal of the case. EL

[1)22] Similar to Cartwright, this case does not involve an “obvious occurrence” of medical

negligence. Under Severson’s medical malpractice claim, he argues Dr. Gupta breached the

standard of care in her application of the liquid nitrogen on his genital warts based on a comparison

of his later procedure by Dr. Belknap. While these procedures appear similar as far as the use of

cryotherapy to freeze the warts, it is unclear if the warts were identical and whether that impacted

the treatment of them. See Docket No. 28, Ex. B at 1 (noting Severson initially went to Sanford

to treat “2 large warts” and later went to Essentia for “new smaller warts”).

[^23] Additionally, Severson heavily emphasizes that there were differing results from these two

procedures. However, it is well-established that “the occurrence that led to the result, not the result

itself, must be obvious.” Pierce. 2018 ND 131,

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7

simply having a different result from an allegedly similar procedure does, not establish the

applicable standard of care.

f^24] It is further not plainly within the knowledge of laypeople what the applicable standard of

care is with respect to applying liquid nitrogen to genital warts, including what tissues are

appropriate for cryotherapy, the distance and duration to spray onto skin, the amount of application

to use, and the number of times to spray. Consequently, it is also not plainly within the knowledge

of laypeople whether the applicable standard of care was breached by Dr. Gupta in this case.

Expert testimony would be required to establish these elements of Severson’s claim.

[*[25] In post-hearing submissions, Severson appears to advance an additional argument that the

“wrong organ” exception within N.D.C.C. § 28-01-46 applies because the skin is considered an

organ and tire liquid nitrogen was applied beyond the areas of the warts on his skin. The Court

disagrees. “[I]n the context of N.D.C.C. §28-01-46, the plain, ordinary and commonly understood

meaning of the phrase ‘wrong organ’ would require a doctor to perform a medical procedure on

an incorrect or mistaken organ.” Cartwright, ,2017 ND 146, r 21, 896 N.W.2d 638. Even if the

Court accepts that the organ at issue in this case is Severson’s skin, Dr. Gupta performed the wart

removal procedure on Severson’s skin. Dr. Gupta did not perfonu the procedure on an incorrect

or mistaken organ for this exception to apply.

[*|[26] Severson’s lack of informed consent claim also fails in the absence of any expert affidavit

to support this claim, While it may be true that laypeople generally know about cryotherapy, the

procedure itself—including the risks of the procedure, their gravity, and their likelihood of

occurring—are outside the knowledge of laypeople. Moreover, laypeople generally would not be

aware of what reasonable alternatives may exist to using liquid nitrogen to freeze genital warts and

whether those would be applicable to Severson. Severson has raised that there was no discussion

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of alternatives, but there is no expert to explain what those might have been. In fact, the need for

an expert on this issue is highlighted by the fact that Severson went to a different provider, Dr.

Belknap, after his procedure with Dr. Gupta and Dr. Belknap allegedly applied the same

cryotherapy treatment.

[•127] The Court is sympathetic to the pain Severson indicates he has experienced—physically,

psychologically, and emotionally—-and understands this procedure has had a lasting impact on

him. That said, in a medical malpractice trial, a plaintiff must present not only evidence of

damages, but an expert witness to explain complex medical procedures to a jury in order to sustain

his claim. Satisfying N.D.C.C. § 28-01-46 is a threshold step in a medical malpractice case to

show his ability to prove his claim with expert testimony. N.D.C.C. § 28-01-46 applies to this

case, and it is not one of an “obvious occurrence” of malpractice to obviate the need for Severson

to provide an expert affidavit supporting his case. Because it is undisputed that Severson faded to

serve an expert affidavit within three months of commencing suit, the Court GRANTS the

Defendants’ Motion for Summary Judgment.

IL

Motion to Amend Complaint

[•*28] Severson separately seeks to amend his case from medical malpractice to medical battery.

Severson has not filed a proposed amended complaint. However, based on his motion, the basis

for his medical battery claim appears to be that he did not provide Dr. Gupta any consent “to treat

the large areas of healthy penile shaft skin, foreskin and glans, where there were no warts, with

liquid nitrogen.” Docket No. 33, Mot. to Amend.

[^29] Rule 15(a) of the North Dakota Rules of Civil Procedure provides that once a responsive

pleading has; been served, a complaint may only be amended by leave of the court unless the

opposing party consents in writing. The Court “has wide discretion in deciding matters related to

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amending pleadings after the time for an amendment as a matter of course has passed.” Darbyv

Swenson Inc;. 2009 ND 103, <[ 11,767 N.W.2d 147. “A district court does not abuse its discretion

in denying a motion to amend the complaint when such an amendment would be a futile act. ’ Id,

atV2Ln reviewing a motion to amend, it is appropriate for the Court to consider its timing within

the case. As explained by the North Dakota Supreme Court in Darby v, Swenson Inc..

If leave to amend is sought before discovery is complete and neither party has

moved for summary judgment,... amendment is not deemed futile as long as the

proposed amended complaint sets forth a general scenario which, if proven, would

entitle die plaintiff to relief against the defendant on some cognizable theory. If,

however, leave to amend is not sought until after discovery' has closed and a

summary judgment motion has been docketed, the proposed amendment must be

not only theoretically viable but also solidly grounded in the record. In that type of

situation, an amendment is properly classified as futile unless the allegations of the

proposed amended complaint are supported by substantial evidence.

Id. (quoting Hatch v. Den’t for Children. Youth & Their Families. 274 F.3d 12,19 (1st Cir. 2001)).

An amendment may also be futile “if the added claim would not survive a motion for summary

judgment.” Id. at 13.

[«l31 ] In this case, while discovery has not yet closed, there is a pending motion for summary

judgment. Accordingly, it is proper to examine whether the proposed amendment is not only

theoretically viable, but also grounded in the record. Based on the record, as outlined below, a

claim of medical battery is not supported by the evidence before the Court and would not survive

summary judgment.

[^32] The elements for medical battery have not yet been firmly established by the North Dakota

Supreme Court. However, the supreme court has generally explained the distinction between

medical battery and medical malpractice:

The torts of battery and negligence serve different functions and provide different

avenues for recovery-. Battery protects a person’s physical integrity and control

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over his body. At its core, the tort of battery' operates to protect an individual’s

right to avoid intentional bodily contact. On the other hand, the tort of negl igence

serves to encourage the exercise of reasonable care. 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.

Severance v. Howe, 2023 ND 197,

10, 997 N.W.2d 99 (cleaned up); see also Hopfauf v. Hie.b,

2006 ND 72, *0 11 n,2, 712 N.W.2d 333 (noting, without adopting, that battery involves “a total

lack of consent for an act," as opposed to the absence of infonned consent).

[«33] The claims also differ with respect to the need for expert testimony. “In lack of infonned

consent cases, the plaintiff must prove a doctor failed to provide information the medical

community would require a patient to know before giving consent,” which generally is beyond the

knowledge of laypeople and requires expert testimony. Severance, 2023 ND 197,

11, 997

N. W.2d 99. By contrast, “(ejxpert 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.’’ Jcl

[^[34] Here, Severson frames his claim as one for medical battery. However, the nature of his

claims has not changed based on the factual allegations in this case and what is in the record.2 His

claims, at their core, are for medical malpractice for not properly applying the liquid nitrogen and

for lack of informed consent for failing to discuss alternatives.

[5|35] In Severson’s initial Complaint, he admits that he saw Dr. Gupta for removal of his genital

wartson December 15,2021. Docket No, 2,Compl, at*|9 (“Plaintiff arrivedat the Sanford Clinic

Southpointe with an appointment to remove 5 genital warts on his penis shaft"). Medical records

attached to his motion confirm that Severson consented to the wart removal using liquid nitrogen.

2 Severson submitted many documents in support o£ his motion, primarily related to the alleged damage to him. He

submitted an affidavit in support of his motion to describe his exhibits. However, none of the documents contradict

that he provided consent to the procedure at issue. They do not change the conclusion that his proposed amendment

is futile.

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Docket No. 42, Ex. 101 at p. 2 (stating Severson “wishes to pursue cryotherapy1’ to treat his warts

and “[v]erbal consent was obtained from patient prior to procedure.”). This information appears

in Severson’s brief in support of his motion to amend, as well. Docket No. 35, Pl s Br. at

15

(stating there was discussion of “the need to remove some small HPV warts on the Plaintiff's

penis,” Dr. Gupta explained the procedure of liquid nitrogen, and Severson agreed). Paragraph 16

of his brief further states “[tjhere had been no mention of alternative forms of treatment.” IcL at *

16. This claim mirrors Severson’ s original claim for lack of informed consent.

[*■36] There is nothing in the record casting doubt on the fact that Severson consented to the

underlying procedure. The essence of Severson’s argument is that he did not give consent for the

result of his procedure, where the liquid nitrogen allegedly impacted '‘healthy” parts of his penis.

This allegation does not transform into a claim of medical battery, as an essential element of

medical battery is that there was no consent for the procedure that occurred. See Severance, 2023

ND 197,5 11,997 N.W.2d 99 (noting medical battery requires no expert because a lay person can

determine if there was “no consent at all to a touching"); see also Brown v. Shappley. 2007 WL

596672, at *2 (Tenn. Ct. App. Feb. 27, 2007) (“An action for medical battery . . . arises from a

physician’s performance of an unauthorized procedure.”); Kohoutek v. Hafner, 383 N.W.2d 295,

299 (Minn. 1986) (“[BJattery consists of an unpermitted touching in the form of a medical

procedure or treatment. The touching is permitted if the patient consents to it.’). It is undisputed

that Severson consented for Dr. Gupta to remove his genital warts using cryotherapy.

537] The Court recognizes that the distinction between battery and lack of informed consent

cases may be “blurry” in certain scope-of-consent cases. Severance, 2023 ND 197, H 11, 997

N.W.2d 99 (citing Kohoutek, 383 N.W.2d at 298). While North Dakota has not yet examined this

issue at depth, the Minnesota Supreme Court in Kohoutek v. Hafner explained that a patient’s

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consent: may be vitiated under some circumstances,, such as when there is a failure to disclose a

material aspect of the nature and character of the touching, in which case the touching will

constitute a battery. 383 N.W.2d at 299. The Kohoutek Court clarified that “[c]onsent, however,

is not rendered void when a patient is touched in exactly the way to which he or she has consented.

[p8] In this case, the procedure performed on Severson was the exact procedure he consented

to. While he takes issue with the manner in which it was performed, Severson’s medical records

establish he consented to Dr. Gupta treating his genital warts with cryotherapy, and he admitted to

the same in his brief, There is nothing in the record to the contrary. Because the evidence shows

that Severson authorized this procedure, his proposed amendment to assert medical battery is futile

and would not survive summary j udgment.

[T39] Again, the Court is sympathetic to Severson for the pain he indicated he suffered following

this procedure. However, in light of the fact that Severson’s Motion tp Amend is futile, the Court

DENIES his motion.

ORDER FOR JUDGMENT

[^[40] The Defendants’ Motion for Summary Judgment is GRANTED. Accordingly, Severson s

Complaint is DISMISSED WITHOUT PREJUDICE pursuant to N.D.C.C. § 28-01-46.

[^41] Severson’s Motion to Amend Complaint to Medical Battery is DENIED.

[^42] The Defendants are entitled to their costs and disbursements.

[1J43] The: Defendants shall submit a proposed judgment and a declaration containing a statement

of their costs and disbursements within ten (10) days bt the date of this Order.

LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated this 11th day of September, 2024.

BY THE COURT:

Hori/Cherie L. Clark

Judge of District Court

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2024Q292 -Filed06-17-2025

NORTH DAKOTA SUPREME COURT

Appendix C

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

ORDER ON PETITION FOR REHEARING

Supreme Court No. 20240292

Cass County Court No. 09-2024-CV-00141

Jacob I. Severson,

v.

Dr. Shabnum Gupta, Sanford Health

Network North, and Sanford Medical Center

FargO/

L^]l]

Plaintiff and Appellant

Defendants and Appellees

This appeal was considered by the Court at the March Tenn and an

opinion was filed on May 22,2025. A petition for rehearing was filed by Jacob I.

Severson, Appellant. The Court considered the matter, and

[12] ORDERED AND ADJUDGED, that the petition be and is hereby DENIED.

[13] AND IT IS FURTHER ORDERED, that this cause be and it is hereby

remanded to the District Court for further proceedings according to law, and the

judgment of this Court,

[14] A certified copy of the mandate of the Supreme Court in this matter will

be filed with the Clerk of Court of Cass County after 6/24/2025.

[15]

Dated: 6/17/2025

[16J

Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr

23 a