dissenting.
[¶ 30] I respectfully dissent. I believe that the obvious occurrence exception to N.D.C.C. § 28-01-46 applies to this case.
[¶ 31] The majority concludes that the obvious occurrence exception does not apply to this case -reasoning: “While. it may be obvious Tong, performed a different surgery than was allegedly consented to, the occurrence leading to the result is not obvious.” Majority, at ¶ 14. The majority further concludes that expert testimony is required to establish the standard of care because, “[i]t is not obvious that a doctor *646cannot tie or remove fallopian tubes without inferences of the decision being that of a professional judgment.” Id.
[¶ 32] In Greene v. Matthys, this Court considered an incident where a plaintiff had hip surgery and the surgery resulted in her left leg being two inches longer than her right leg. 2017 ND 107, ¶ 14, 893 N.W.2d 179. The plaintiff argued the two-inch leg-length discrepancy qualified as an obvious occurrence under N.D.C.C. § 28-01-46. Id. This Court concluded that the obvious occurrence exception did not apply, reasoning: “Greene’s argument focuses on an obvious result after a technical surgical procedure. In order for this exception to apply, the occurrence that led to the result, not the result itself, must be obvious.” Id.
[¶ 33] In this case, unlike in Greene, I believe it is obvious that the wrong proce-dui'e was performed, not just that the result was obviously wrong. The Cartwrights allege that Roxane consented to having her fallopian tubes severed and discussed the procedure at length with Tong and in close proximity to the time Tong performed the procedure. The Cartwrights further allege that instead of severing Roxane’s fallopian tubes, Tong removed them. There are no allegations that Tong was medically required to perform the procedure or that she ever informed the Cart-wrights that she had performed a different procedure from the one to which Roxane Cartwright consented. I disagree with the majority that, in order to satisfy the obvious occurrence exception, the Cartwrights must show there are no possible inferences that the reason why the doctor performed the wrong procedure on Roxane Cartwright was the result of professional judgment. In requiring the Cartwrights to establish the standard of care to prove this incident qualifies as an obvious occurrence, I believe the majority is disregarding the plain meaning of the statute. A jury is fully capable of understanding that Roxane Cartwright only consented to having the fallopian tubes severed and that Tong, with full and unmistakable knowledge that Roxane did not want the fallopian tubes removed, went against Roxane’s explicit directions and removed the tubes anyway. The focus is on the obvious occurrence, which is the wrongful, unconsented to surgical procedure.
[1134] Under N.D.C.C. § 28-01-46, an individual biinging a professional negligence claim against a physician must serve the defendant with 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. However, if the negligence claim involves the failure to remove a foreign substance from within the body of the patient, performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or another obvious occurrence, then the individual need not serve an expert opinion supporting a prima facie case of professional negligence. Id.
[¶ 35] Here, the majority is requiring the Cartwrights to present an expert opinion establishing the elements of a prima facie case of negligence to satisfy the obvious occurrence exception, which I believe is contrary to the statute. In order to show that the obvious occurrence exception applies under N.D.C.C. § 28-01-46, I do not believe that the Cartwrights heed to present evidence to show the likely permanence of, or the possibility of reversal of the procedure removing the fallopian tubes compared with the procedure severing the fallopian tubes. The allegation supporting the Cartwrights’ complaint is that Roxane Cartwright consented to Tong severing her fallopian tubes, but, instead, Tong completely removed them. It is obvious *647that Tong removed an organ that she only-had consent to sever. I do not believe that N.D.C.C. § 28-01^46 requires this Court to analyze how the effects of the procedure would have been different had Tong performed the procedure to which Roxane Cartwright consented. I believe the majority is requiring Roxane Cartwright to prove exactly what N.D.C.C. § 28-01-46 indicates that a plaintiff need not prove when one of the listed exceptions to the statute applies.
[¶ 36] Further, I do not believe that the Cartwrights have to show that there was no possible medical reason for Tong to remove Cartwright’s fallopian tubes, rather than sever them. If the obvious occurrence exception applies, a plaintiff is not required to present expert evidence to support each element of a prima facie case of professional negligence because the obvious occurrence itself is sufficient to support a prima facie case. If this case proceeds onto trial, then Tong would have the opportunity to rebut the Cartwrights’ pri-ma face case with evidence that she disregarded Cartwright’s consent, as a result of professional judgment. Accordingly, I disagree that, in order to satisfy the obvious occurrence exception within N.D.C.C. § 28-01-46, the Cartwrights had to establish, with expert evidence, that removing Roxane Cartwright’s fallopian tubes, rather than severing them, as she requested, qualifies as a deviation from the standard of care. There are no allegations in this case that Tong had a medical reason to perform a different procedure from what was consented to or that Tong informed the Cartwrights, immediately following the procedure, that she had performed a different procedure from what Roxane Cartwright had requested. As such, I believe Roxane Cartwright’s allegation that Tong removed her fallopian tubes, instead of severing them, as she requested, qualifies as an obvious occurrence, which alone is sufficient to establish a prima facie case of professional negligence.
[¶ 37] This Court has previously noted: “Section 28-01-46, N.D.C.C., was designed simply to minimize frivolous [malpractice] claims by requiring the plaintiff to obtain an expert opinion supporting [his claims] during [the] early stages of [ ]litigation.” White v. Altru Health System, 2008 ND 48, ¶ 8, 746 N.W.2d 173 (internal citations and quotations omitted). On the face of the Cartwrights’ claim, I believe they have put forth a prima facie case of an obvious occurrence of professional negligence that does not require an expert affidavit under N.D.C.C. § 28-01-46. Further, I do not believe this is the type of claim that N.D.C.C. § 28-01-46 seeks to protect against. As such, I would reverse the district court’s decision dismissing the Cart-wrights’ complaint.
[¶ 38] Accordingly, I respectfully dissent.
[¶ 39] William Herauf, D.J.
Gerald W. VandeWalle, C. J.