North Dakota Medical Malpractice Laws

Understand North Dakota's "Expert Affidavit" requirement for medical malpractice lawsuits, the statute of limitations filing deadline, and the North Dakota medical malpractice damages cap.

A medical malpractice lawsuit is usually a pretty complex undertaking in any state, North Dakota included. First, the legal and medical issues common to these cases are notoriously complicated. And second, the plaintiff (the injured patient, or his or her legal representative) usually needs to comply with one or more procedural rules that are unique to these kinds of lawsuits. Finally, the plaintiff needs to understand how any statutory compensation limits ("damages caps") will affect a successful court case. In this article, we'll look at some key North Dakota medical malpractice laws, including the "expert affidavit" requirement, the lawsuit-filing deadline, and the current status of the North Dakota medical malpractice damages cap.

North Dakota's Medical Malpractice Statute of Limitations

Anyone who wants to file a medical malpractice lawsuit in North Dakota first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state’s civil court system.

Like a lot of states, North Dakota has enacted a specific statute of limitations for medical malpractice lawsuits. You can find this law at North Dakota Century Code section 28-01-18, and it says that this kind of case must be filed within two years of the date on which the underlying malpractice was allegedly committed -- or alternatively, within two years of the date when the patient discovered (or should have been able to discover) that he or she was injured as a result of a medical professional or health care facility’s medical error.

It's important to note that if you are relying on the "discovery" portion of North Dakota’s two-year filing period, as the plaintiff you have the burden of proving that you did not discover -- and you could not reasonably have been expected to discover -- the occurrence of the underlying malpractice until you actually did.

There is also a larger catch-all filing deadline (known as a "statute of repose") in North Dakota, which says that all medical malpractice lawsuits must be filed within six years from the date on which the malpractice occurred. So, once those six years have passed, even if you didn’t know (and couldn't reasonably have known) that you were harmed by malpractice during all of that time, your right to file a medical malpractice lawsuit in North Dakota is lost.

If North Dakota's statute of limitations filing deadline has passed and you try to file the case anyway, the defendant will almost certainly ask the court to dismiss the case, and the court is very likely to grant the motion. Once that happens, that’s the end of your lawsuit. That's why it's so important to understand and comply with the medical malpractice statute of limitations.

The "Expert Affidavit" Requirement for N.D. Medical Malpractice Lawsuits

Within three months of the filing of any medical malpractice lawsuit in North Dakota's courts, the plaintiff must file (and must also "serve" on each defendant) an affidavit in which a qualified medical expert attests to his or her support for a preliminary finding of negligence on the part of each provider named in the lawsuit.

According to North Dakota Century Code section 28-01-46, the affidavit must:

  • identify the medical expert, including his or her field of expertise
  • summarize the basis for the expert's opinion
  • declare that, in treating the plaintiff, the health care provider deviated from the applicable medical standard of care, and
  • declare that this provision of sub-standard care caused or contributed to the plaintiff's claimed injuries.
A few more notes on North Dakota's "expert affidavit" requirement:
  • Failure to file a timely affidavit will result in the dismissal of your medical malpractice lawsuit "without prejudice," meaning you'll probably have the chance to re-file.
  • If the plaintiff can demonstrate "good cause," for an extension to file the affidavit, and if the request for an extension is made before the three month post-lawsuit filing period has passed, the court can set a later deadline for filing and serving the affidavit.
  • No affidavit is required if there is an "obvious occurrence" of error, such as "unintentional failure to remove a foreign substance" (i.e. a surgical sponge or instrument) from the patient's body.

North Dakota Caps Damages in Medical Malpractice Cases (For Now)

Like a number of states, North Dakota places a "cap" on the amount of compensation that is available to a plaintiff who has been successful in a medical malpractice lawsuit. In other words, even after a jury holds a defendant liable for malpractice and awards a plaintiff a certain amount of damages, this law (fair or not) kicks in to cap the actual amount that the plaintiff will end up getting.

In North Dakota, there is a $500,000 cap on non-economic damages in medical malpractice cases. Non-economic damages include compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the defendant’s medical malpractice. Non-economic damages are often described as more "subjective" because they tend to vary from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.

(Editor's note: In January 2018, a North Dakota judge ruled that the state's cap on non-economic damages is unconstitutional, but the state's appeals courts are sure to weigh in on the issue, so stay tuned.)

As for other medical malpractice damages in North Dakota -- including compensation for losses like past and future medical bills, lost income, lost earning capacity, and other financial harm -- there is no statutory limit, but any economic damages award over $250,000 may be challenged by the defendant and reviewed for reasonableness by the court. However, when such an award is challenged, the defendant has the burden of persuading the court that the dollar amount does not reasonably reflect the injured patient’s economic losses.

If you're looking for more specifics on North Dakota's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.

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