Severson v. Gupta: Defining the Limits of the “Obvious Occurrence” Exception and Amendment Standards in North Dakota Medical Malpractice Claims

Introduction

In Severson v. Gupta, 2025 ND 101, the Supreme Court of North Dakota addressed two pivotal issues in medical-malpractice litigation under N.D.C.C. § 28-01-46: (1) the scope of the “obvious occurrence” exception to the expert-affidavit requirement; and (2) the standard for allowing a post-discovery amendment to assert medical battery. Plaintiff Jacob I. Severson sued Dr. Shabnum Gupta and Sanford Health Network Fargo after cryotherapy for genital warts allegedly caused blistering, scarring, and psychological harm. The district court granted summary judgment for the defendants for lack of a timely expert affidavit and denied leave to amend the complaint. On appeal, Severson contended his claim fell within the “obvious occurrence” exception and that amendment to a battery theory should be permitted. The Supreme Court affirmed.

Summary of the Judgment

Justice Crothers, writing for a unanimous court, affirmed the district court’s rulings. First, the court held that adverse outcomes from a cryotherapy procedure—blistering and scarring—do not qualify as “obvious occurrences” under N.D.C.C. § 28-01-46, so plaintiff needed an expert affidavit to establish negligence. Severson had neither served such an affidavit within three months of filing nor obtained an extension, mandating dismissal. Second, the court found that Severson’s proposed amendment alleging medical battery was futile. Having answered the complaint and completed discovery, the plaintiff offered no new evidence to show lack of consent, and Minnesota precedent (Kohoutek v. Hafner) confirmed that touching in the manner consented to cannot form the basis of a battery.

Analysis

1. Precedents Cited

Green v. Mid Dakota Clinic, 2004 ND 12: Established de novo review of summary-judgment rulings and set forth standards for evaluating motions under Rule 56, N.D.R.Civ.P.
Johnson v. Bronson, 2013 ND 78: Defined the “obvious occurrence” exception—negligent acts so egregious that a layperson can recognize them without expert testimony.
Darby v. Swenson Inc., 2009 ND 103: Clarified the futility standard for amending a complaint after discovery and a summary-judgment motion has been filed.
Kohoutek v. Hafner, 383 N.W.2d 295 (Minn. 1986): Held that consent to a medical procedure is not vitiated by failure to disclose every detail of the touching if the manner of touching is as consented.

2. Legal Reasoning

The court’s reasoning proceeded in two parts:

Expert-Affidavit Requirement and “Obvious Occurrence” Exception: Under N.D.C.C. § 28-01-46, any medical-negligence claim must be accompanied by an expert affidavit within three months or be dismissed. Severson failed to file or obtain an extension. He argued that the blistering and scarring were “obvious occurrences,” obviating the need for expert opinion. Relying on Johnson, the court held that laypersons understand only that cryotherapy may burn skin but cannot assess whether the degree of blistering and scarring exceeded the standard of care or was an inherent risk. Because the alleged harm did not constitute a “blunder so egregious” within everyday knowledge, the exception did not apply.
Amendment to Medical Battery Claim: After defendants had answered and summary-judgment briefing was underway, Severson sought to amend his complaint to allege lack of consent. Under Rule 15(a), post-answer amendments require leave of court, to be freely granted unless futile. Citing Darby, the court explained that when discovery is complete and a summary-judgment motion is pending, an amendment is futile unless supported by substantial evidence. The record showed no dispute that Severson consented to cryotherapy at the correct body part; Kohoutek confirmed that touching “in exactly the way” consented to cannot support a battery. Thus, amendment was futile.

3. Impact

Severson v. Gupta clarifies two critical points in North Dakota medical-malpractice jurisprudence:

The “obvious occurrence” exception is narrowly confined to truly self-evident medical errors (e.g., operating on the wrong limb, leaving a surgical instrument inside a patient). Adverse outcomes from routine procedures—even if unfortunate—require expert validation to establish a breach of care.
Proposed amendments to pleadings after discovery and summary-judgment motions face a high hurdle: the futility standard demands record evidence supporting any new theory. Plaintiffs cannot rely on speculative or bare assertions once the litigation has progressed.

Complex Concepts Simplified

Expert-Affidavit Requirement (N.D.C.C. § 28-01-46): In North Dakota, medical-negligence plaintiffs must file a sworn statement from a qualified expert showing a prima facie case of professional negligence within three months of filing suit.
“Obvious Occurrence” Exception: This narrow exception frees a plaintiff from the affidavit requirement when the negligence is so blatant (e.g., wrong-patient surgery) that any layperson immediately recognizes it without expert help.
Summary Judgment (Rule 56, N.D.R.Civ.P.): A pretrial ruling awarding judgment to one side when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
Futility Standard for Amendments: After discovery and a pending summary-judgment motion, a proposed amendment must be backed by substantial evidence in the record; otherwise, granting leave would be pointless.
Medical Battery vs. Malpractice: Medical malpractice involves negligence or substandard care; battery requires intentional, nonconsensual touching. A plaintiff must show lack of valid consent to convert a malpractice claim into a battery claim.

Conclusion

Severson v. Gupta stands as a definitive statement on the limits of both the “obvious occurrence” exception and the standards for amending complaints in North Dakota medical-malpractice litigation. The ruling underscores the necessity of expert testimony to prove substandard medical care, except in the most egregious, self-evident mistakes. It also illustrates that attempts to shift legal theories late in the process will be denied when unsupported by evidence. Future litigants and practitioners should take heed: compliance with procedural deadlines and careful, early case development are essential to preserving and advancing medical-negligence claims.