Van Klootwyk v. Baptist Home, Inc.

KAPSNER, Justice,

concurring.

[¶ 23] I reluctantly concur.

[¶ 24] The concessions made by appellant at oral argument demonstrate the validity of the Baptist Home’s argument that a plaintiff can sometimes control the applicability of the statute by naming a defendant who is not within the categories specified in N.D.C.C. § 28 — 01—46. This is so even when the potential for liability is based solely upon the vicarious liability of the employer, the named defendant, for acts of employees who are within the categories of persons to whom the statute applies.

[¶ 25] Counsel for appellant conceded at oral argument that this lawsuit was only directed at members of the staff of Baptist Home who either were nurses or were acting at the direction of a nurse. This case is about allegations of nursing malpractice. The result foregoes the benefit envisioned by N.D.C.C. § 28-01-46, of having an expert opinion early in the litigation indicating that the claims have been evaluated and can be supported, in an action focused on claims of nursing negligence but naming only the employer. However, applying ordinary principles of statutory interpretation, that is the required result. The legislature will have to address expansion of the categories to whom N.D.C.C. § 28-01-46 applies, if this result does not accord with legislative intent.

[¶ 26] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, MARY MUEHLEN MARING, JJ., concur.