North Dakota Medical Malpractice Laws & Statutory Rules

Before you call a medical malpractice lawyer, understand the North Dakota laws that could affect your case.

Like every state, North Dakota has specific laws that apply to medical malpractice lawsuits filed in the state’s civil court system. These laws set a time limit for filing a medical malpractice lawsuit in court, require plaintiffs to file an "expert affidavit" shortly after starting the lawsuit, and limit certain kinds of damages. In this article, we’ll summarize these laws and explain how they could affect your medical malpractice lawsuit.

Statute of Limitations - Two Years

North Dakota’s statute of limitations sets a deadline for filing medical malpractice cases in the state’s courts. In North Dakota, a medical malpractice lawsuit must be filed within two years of the date of discovery of the injury, but not more than six years from the date the injury occurred. Certain exceptions exist, including for people who have certain mental illnesses, who are imprisoned, or from whom the injury was fraudulently concealed.

Because the date of discovery is so important in determining when the time limits fall in a medical malpractice case, if you've got questions about how the statute of limitations applies to your situation, it’s important to speak to an attorney who practices medical malpractice law in North Dakota. The one thing you don't want to do is wait too long. If you try to file your medical malpractice lawsuit after the statute of limitations deadline has passed, the court will throw your case out, regardless of how serious the health care provider's medical error was, or how badly you were harmed by it.

"Expert Affidavit" Requirement

Within three months of the filing of the medical malpractice lawsuit, you must file (and serve on each defendant) an affidavit in which a qualified expert witness indicates, under oath, his or her support for your case. This requirement is spelled out at North Dakota Century Code section 28-01-46, which says that the affidavit must:

  • identify the expert (name and business address)
  • describe the expert's qualifications, and
  • include a summary of the basis for the expert's opinion.

Section 28-01-46 allows the court to grant the plaintiff an extension for serving the affidavit, if "good cause" is shown and if the request for additional time is made before the three months have passed.

Failure to file the affidavit will result in the dismissal of your medical malpractice lawsuit "without prejudice," meaning you'll probably have the opportunity to re-file.

Finally, no expert affidavit is required for an "obvious occurrence" of medical malpractice, such as:

  • "unintentional failure to remove a foreign substance" from the patient's body
  • performance of a medical procedure on the wrong person, or
  • performance of a medical procedure on the wrong organ, limb, or other part of a patient's body.

Non-Economic Damages Cap

North Dakota, like many states, limits or “caps” damage awards in medical malpractice cases. North Dakota Century Code section 32-42-02 limits non-economic damages to $500,000 in a successful medical malpractice case. Non-economic damages include the kinds of compensation that can’t easily be calculated based on bills or receipts, which includes compensation for things like pain and suffering, loss of consortium, or the loss of enjoyment of life.

The jury isn't instructed on this non-economic damages cap, if a North Dakota medical malpractice case goes to trial. Instead, if the jury returns a verdict in favor of the plaintiff, and awards non-economic damages in an amount that exceeds the cap, the judge will step in and reduce the award so that it is in line with the $500,000 limit.

It's important to note that North Dakota does not limit economic damages, such as compensation or reimbursement for medical bills (past and future), lost wages, and other losses resulting from the medical malpractice injury.

How Damages are Allocated

North Dakota applies two rules for allocating damages in certain medical malpractice cases: the joint and several liability rule and the comparative fault rule. Here's an explanation in case these rules come into play in your case:

The joint and several liability rule holds that when two or more defendants are at fault in an injury case, any one of them can be held liable for the entire amount of damages. This rule has fallen out of favor for most medical malpractice cases. Instead, each defendant may only be required to pay his or her own share of the damages, not the entire amount. If the defendants acted in concert or intended to harm the injured patient, however, they may each be held liable for the entire damages amount.

The comparative fault rule is used in cases where an injured patient is partly or totally responsible for his or her own injuries (or for the worsening of his or her health condition) in a medical malpractice case. In North Dakota, damages are reduced by the percentage of fault assigned to the plaintiff until that amount reaches 50 percent. If the injured person is found by the court to be 50 percent or more at fault, the damages award drops to zero automatically, and the injured person is barred from collecting any damages at all from any defendant.

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