North Dakota Medical Malpractice Laws & Statutory Rules

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

If you believe you've been harmed by a health care provider's medical negligence in North Dakota, you might be thinking of filing a medical malpractice lawsuit. These cases are notoriously complicated and difficult to win—and you'll almost certainly need the help of medical experts and a good medical malpractice attorney—but it can be helpful to know what to expect before you decide to head to court. This article will discuss the basics of the medical malpractice claim process in North Dakota, including the state's laws on:

  • how long you have to file your case in court
  • obtaining and filing an "expert affidavit" when starting the lawsuit, and
  • how much compensation ("damages") you can receive if your claim succeeds.

The Medical Malpractice Statute of Limitations in North Dakota

All states have laws called "statutes of limitations" that set strict limits on the amount of time a plaintiff (the party filing the lawsuit) has to bring a case to court. North Dakota, like most other states, has a specific statute of limitations for medical malpractice cases. In North Dakota, an injured patient has two years to file a medical malpractice lawsuit. But when does the "clock" start running? In most cases, the statute of limitations clock will start to run on the date the alleged malpractice was committed. But North Dakota also follows what's called the "discovery rule" in medical malpractice cases. That means that if the injured patient couldn't have known about the malpractice right away—say, in cases where the health care provider left a sponge in the patient's body during surgery—the patient has two years from the date the medical error was discovered or, in the eyes of the law, should have been discovered.

In addition, North Dakota also has a broader deadline (called a "statute of repose") that applies to medical malpractice cases. The statute of repose says that all medical malpractice lawsuits must be filed within six years of the date on which the underlying medical error occurred. So once those six years are up, you'll no longer be able to file your claim—even if you didn't know about (and couldn't reasonably have known about) the malpractice.

At this point you might be wondering what will happen if you miss the filing deadline. If you try to file your medical malpractice lawsuit after the statute of limitations deadline has passed (and no exception exists), the court will almost certainly throw out your case, regardless of how serious the health care provider's medical error was or how badly you were harmed by it.

(N.D. Cent. Code § 28-01-18 (2022).)

North Dakota's "Expert Affidavit" Requirement for Medical Malpractice Lawsuits

Within three months of filing of a medical malpractice lawsuit in North Dakota, the plaintiff must file (and serve on each defendant health care provider) an affidavit in which a qualified expert witness demonstrates support for a preliminary finding of professional negligence on the part of each health care provider named in the lawsuit. The law requires the affidavit to identify the expert and the expert's area of expertise and to summarize the basis for the expert's opinion. In the summary, the expert must:

  • provide evidence establishing the applicable medical standard of care
  • declare that the defendant health care provider violated that standard of care, and
  • declare that the provider's failure to meet the standard of care caused or contributed to the injuries on which the lawsuit is based.

However, you're not required to file an expert affidavit in cases based on an "obvious occurrence" of medical malpractice, such as the "unintentional failure to remove a foreign substance" from the patient's body, or when a medical procedure is performed on the wrong patient, or on the wrong organ, limb, or other part of a patient's body.

Finally, the law allows the court to grant the plaintiff an extension if "good cause" is shown and if the request for additional time is made before the three months have passed. But if you fail to file the affidavit on time, your medical malpractice case will be dismissed "without prejudice," meaning you'll probably have the opportunity to re-file it.

(N.D. Cent. Code § 28-01-46 (2022).)

Caps on Damages in North Dakota Medical Malpractice Cases

North Dakota, like many states, limits or "caps" the amount of compensation that can be awarded in successful medical malpractice cases. In North Dakota, there is a $500,000 cap on noneconomic damages, regardless of the number of health care providers involved in the case. Noneconomic damages include compensation for the types of injuries that can't easily be calculated based on bills or receipts, such as pain and suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, and humiliation.

It's important to note that North Dakota does not limit economic damages, such as compensation for medical bills (past and future), lost wages and earning capacity, and other financial losses resulting from the medical malpractice. However, if a plaintiff is awarded more than $250,000 in economic damages, the defendant can request that the court review the "reasonableness" of the award. In that case, the burden is on the defendant to prove to the court that the dollar amount is excessive and does not reasonably reflect the economic losses suffered by the plaintiff.

(N.D. Cent. Code §§ 32-03.2-08, 32-42-01, 32-42-02 (2022).)

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