concurring specially.
[¶ 26] I agree with and have signed with the majority. I write separately to point out that it would have been helpful for the district court to address the issue of obvious occurrence. A one paragraph order granting a motion to dismiss and stating an alternative motion for summary judgment is moot, with no further analysis, should probably be reversed as a matter of law. This Court has no way of knowing if the district court even considered the issue of obvious occurrence. However, in this case, because we are able to discern from the record that the obvious occurrence exception does not apply, remand is not necessary.
[¶ 27] Determining whether performing a salpingectomy instead of a tubal ligation is an “obvious occurrence” under N.D.C.C. § 28-01-46, is not as simple as the dissent seems to suggest. While I agree with the dissent that performing a different surgery than was identified on the consent form seems obvious, the facts here show otherwise.
[¶28] “The ‘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.” Larsen v. Zarrett, 498 N.W.2d 191, 196 (N.D. 1993). In Tong’s Answer to the Cartwrights’ Complaint, Tong admitted that Cartwright authorized and consented to a cesarean section delivery with tubal ligation. Tong also admits in her Answer she “performed a bilateral sal-pingectomy, also known as a tubal ligation.” In support of her Answer, Tong submitted medical records pertaining to Cartwright’s surgery that include references to completing both procedures. The description of the surgery on Cartwright’s fallopian tube states, in part: “There was a small area of venous bleeding on the meso-salpinx on the left after completion of the tubal ligation.... The mesosalpinges were carefully inspected for a period after completion of the salpingectomy and were he-mostatic.” The terms “tubal ligation” and “salpingectomy” are medical terms for procedures that are not within the knowledge of a layperson. Whether the terms tubal ligation and salpingectomy are used interchangeably to describe tubal sterilization is also beyond the knowledge of a layperson.
[¶ 29] Lisa Fair McEvers