dissenting.
I respectfully dissent.
In his affidavit, Mrs. Wheeler’s medical expert, Dr. Jeffrey P. Block, pointed out that “Mrs. Wheeler's medical records do not contain any consent for a hysterectomy and removal of the ovaries and fallopian tubes.” Dr. Block opined “such surgery was not a medically necessary procedure.” There is clearly a genuine issue of material fact as to consent and malpractice. N.D.R. Civ.P. 56(c). It is improper to assess the weight of the evidence on a motion for summary judgment as the trial court did and as the majority opinion compounds.
In my opinion, it is a question of fact whether Wheeler knew or should have known that the extensive surgery was “unnecessary” before an expert told her so. See Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985). Until she discovered that the surgery may have been unnecessary, it is difficult to see how the statute of limitations could begin to run.
Dr. Clark made post-operative representations to Mrs. Wheeler that surgical removal of her ovaries, the fallopian tubes, and her uterus were necessary, even though her signed consent did not anticipate such extensive surgery. Whether or not those representations were fraudulent concealment is also a factual inference. If, in fact, extensive surgery was unnecessary, contrary to the representations, that circumstance would certainly permit an inference of fraudulent concealment. 51 Am.Jur.2d Limitation of Actions § 149, p. 722 (1970). Where there is an expert opinion that extensive surgery without an express consent was unnecessary, fraudulent concealment should be an issue of fact, not summarily decided as a matter of law.
The issue of continuing treatment, sufficient to toll the six year statute of limitations between the 1974 operation and this 1986 suit, combines factual and legal aspects since we have not yet squarely adopted the doctrine as a principle of law in North Dakota. However, in my opinion, our legal decision may well turn on factual inferences to be made from the course of treatment. Therefore, I would prefer to address that legal issue after those factual inferences are developed by trial.
Whether or not continued prescription of medication eight years after the last personal contact by the physician created a relationship of trust and confidence should be factually determined, particularly when the continued attention affected a condition caused by the surgery claimed to be uncon-sented and unnecessary. The doctor’s responsibility for his office staff and for his prescriptions could be fully developed in the evidence and tested by cross-examination. These circumstances are factually interwoven with the factual issue on fraudulent concealment, as well, and could easily be submitted to a jury in a special verdict form.
I would reverse.
VERNON R. PEDERSON, Surrogate Justice, concurs.