North Dakota Medical Malpractice Laws

Outside of the injury itself, going through litigation involving a claim of medical malpractice can be a painful process. It is likely that you placed a great amount of trust within your chosen health care provider. Patients allow their health care providers to see their medical history, learn about their current and ongoing physical ailments, prescribe medications and perform procedures that often require their life to be put in the hands of their physician. However, that trust becomes severed the moment you become injured as a result of professional negligence. Finding out the necessary steps to take after being a victim of medical malpractice is tremendously important but can be time-consuming and overwhelming. If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in North Dakota has created a finite period of time in which you are permitted to bring a claim. In addition, the law in North Dakota has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in North Dakota; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in North Dakota.

Suing for Medical Malpractice in North Dakota

Under state law, a patient may pursue a civil claim called medical liability or medical malpractice against physicians or other health care providers if the health care provider causes injury or death to the patient through a negligent act or omission. For your case to be successful, you must establish:

• A doctor-patient relationship existed
• The doctor violated the owed duty of care
• Your injury was caused by the doctor’s actions or omissions
• You suffered damages as a result of the medical malpractice

Timing is everything when filing a medical malpractice claim in North Dakota as the law places a statute of limitations on how long you may wait to bring your claim. Once a claim is brought against the appropriate defendants, the law in North Dakota allows named defendants to claim modified contributory negligence as a defense against a medical malpractice claim. Modified contributory negligence requires the defendant to prove that the plaintiff failed to exercise reasonable care and that failure led to your injury.

How long do I have to file a medical malpractice case in North Dakota?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are within the permissible timeframe. The law in North Dakota mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule. If you were unable to discover your injury until a later date, the standard statute of limitations will freeze and you will have up until six years after the initial date of the injury to bring a medical malpractice lawsuit.

In North Dakota Medical Malpractice Cases, who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In North Dakota, you may bring a medical malpractice claim for damages due to injury against any physician and surgeon or other provider of health care, including, without limitation, any dentist, physicians’ assistant, nurse practitioner, registered nurse, licensed practical nurse, nurse anesthetist, medical technologist, physical therapist, hospital or nursing home, or any person vicariously liable for the negligence of them or any of them, on account of the provision of or failure to provide health care or on account of any matter incidental or related.

When it comes to medical malpractice, a health care provider may be deemed to have been negligent when they failed to meet the applicable standard of health care practice of the community in which the care should have been provided, as such standard existed at the time and place of the negligence that you are claiming to have occurred.

What if I am partially to blame? Can I Still Recover Money for North Dakota Medical Malpractice?

North Dakota, along with 32 other states recognizes the doctrine of modified comparative fault. [2] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, North Dakota is one of 12 states (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you bleed excessively during a procedure performed by your doctor and the loss of blood caused a significant injury. A court finds that your excessive bleeding was caused by a combination of an incorrect incision performed by the doctor and a failure on your part to properly disclose all of the medication you had taken prior to the procedure. The court ultimately finds that the doctor should have performed a different incision during the procedure and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not properly disclosing your medications to your doctor prior to undergoing the procedure. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why North Dakota decided to adopt a modified system.

Are there medical malpractice recovery caps in North Dakota?

If your medical malpractice claim was successful, it is likely that a court will award you a sum of money known as damages. The law in North Dakota has established different types of damage awards that you may receive:

Economic Damages are awarded for the purpose of helping to put you back in the monetary position which existed before your injury occurred. For example, economic damages help to repay the money you lost as a result of your injury, such as medical expenses, wages lost due to an inability to work, physical therapy costs, loss of future earnings, etc. The law in North Dakota does not place a cap on the amount of economic damages you may receive. [3]

Non-economic Damages are meant to compensate you for occurrences that are hard to properly quantify like; pain and suffering, loss of consortium, and the loss of enjoyment of life. The law in North Dakota limits your non-economic damage recovery to $500,000. [4]

Punitive Damages are not meant to compensate you for your injury. Instead, North Dakota awards punitive damages with the intention of punishing the defendant and attempting to deter future similar behavior. In order for punitive damages to be awarded in a medical malpractice lawsuit, you must prove by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous action on the part of the named defendants. If an award is granted by the court, they will be capped at the greater of two times the compensatory damage award. [5]

Expert witness reporting and testimony

An expert witness is very important to your medical malpractice case for a two reasons. First, an expert witness will be able to provide testimony to the court which will go towards proving that there was a breach of the standard of care owed to you by a health care provider and that the breach was the proximate cause of your injury. Second, the law in North Dakota requires the opinion of an expert in most medical malpractice cases other than cases claiming lack of informed consent, failure to remove a foreign object, or the performance of a procedure on the wrong patient. [6]

Within three months of filing your medical malpractice lawsuit, you must serve the defendant an affidavit containing an admissible expert opinion to support your case. The affidavit must identify the name and business address of the expert, indicate the expert’s field of expertise, and contain a brief summary of the basis for the expert’s opinion.

Are some parties immune from medical negligence cases?

Many states have implemented sovereign immunity whereby the State and its municipalities may not be held liable in a tort action. However, the law in North Dakota has partially waived its immunity when it comes to actions brought against its counties, cities, and local units of government. Immunity continues for the State of North Dakota itself. [7]

If an action is brought against a North Dakota county, city, or local unit of government, any potential damage award will be limited to $500,000 per occurrence.

Settling medical malpractice cases in North Dakota

In North Dakota, before initiating a medical malpractice action, your attorney must advise you about all reasonably available alternative dispute resolution options that are available to encourage settlement. [8]

At the earliest opportunity a defendant’s attorney has notice of a potential health care malpractice claim or action, they must also advise the health care provider about all reasonably available alternative dispute resolution options that may be available.

Both sides are required to make a good-faith effort to resolve the dispute via alternative dispute resolution prior to the start of trial.

Litigating medical negligence cases in North Dakota

A claim for medical malpractice in North Dakota begins with the filing of a complaint. The complaint must specifically describe the malpractice that you claim to have occurred as well as ask the court for relief.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court

In North Dakota, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

• Your name
• The names of all of the defendants
• The address of all named defendants
• The specific facts giving rise to your claim
• A general request for relief from the court

Once the complaint is filed with the appropriate court, it must then be personally served upon the defendant(s) by the sheriff. Once the defendant(s) is served, he has twenty-one (21) days to file an answer at the same court.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a process that is designed to allow both sides to disclose information to each other in order to prevent unnecessary surprises at trial.

The discovery process can include:

• Interrogatories
• Depositions
• Production of documents
• Requests for admission

Essentially, discovery includes any item that can help bolster the legal argument of either side.

Interrogatories are written questions posed to the other side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating.

Production of documents is a process where each side is permitted to request documents that may be used at trial.

Requests for admission are statements posed by one side to the other for the purpose of having the other side admit or deny.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, most cases do settle prior to going to trial. Parties to a medical malpractice action in North Dakota are encouraged to participate in alternative dispute resolution before commencing a case, or at the early stage of a case.

Mediation is a confidential process in which a neutral mediator assists the participants in reaching a voluntary decision about the dispute. Mediation differs from a trial in that neither a judge nor jury are present. The participants have full say about how the dispute is resolved. Mediation is often less expensive and more efficient than a trial and can expedite a resolution to the dispute.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of North Dakota: a judge or a jury. In North Dakota, juries usually consist of six (6) people unless a request is made for a nine (9) person jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can use one of four peremptory challenges and ask the judge not to allow that person to sit on the jury. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In North Dakota, a person is considered to be qualified to be a juror if they are:

• A citizen of the United States
• Are at least 18 years old
• Able to read, write and speak English
• Reside in North Dakota
• Of sound mind

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. The Court of Appeals hears only the cases assigned to it by the Supreme Court. It is composed of three judges chosen from among active and retired district court judges, retired justices of the Supreme Court, and attorneys. Temporary court of appeals judges are assigned by the Supreme Court for up to one year. The Supreme Court assigns cases to the Court of Appeals from among those cases filed with it. Some years the Supreme Court assigns no cases to the Court of Appeals.

An appeal is usually based upon the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within sixty (60) days of the order.

How to find the best North Dakota Medical Malpractice Lawyer for your case

Medical malpractice litigation is complicated, messy and sometimes confrontational. If you or a loved one has had the unfortunate experience of being injured as a result of the negligence of a health care provider, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring competent, diligent and experienced legal representation can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. It is not fair that you not only have to physically suffer for the negligence of another let alone be left with out-of-pocket expenses that you would not otherwise have incurred had the negligence not taken place. A strong legal representative can help obtain monetary relief from the court that will help compensate you for your injuries.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table. Some attorneys and firms may be stronger in some areas than others. Determine what qualities are important to you and go from there.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

You should also ask your potential attorney or firm how they communicate with their clients. Many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Ask the attorney or firm their rate and if they handle medical malpractice cases on an hourly or contingency basis. Many attorneys prefer contingency fees in personal injury cases which means that you are not obligate to pay an upfront or ongoing expense to the attorney or firm but you are obligated to pay a percentage of your ultimate recovery.

Some notable medical malpractice law decisions from North Dakota

These cases represent awards to plaintiffs in medical malpractice cases in North Dakota. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Botched Delivery

A medical malpractice case was filed on behalf of a brain damaged baby who suffered injury after a midwife failed to provide proper care during the child’s delivery.

At trial, it was argued that the midwife negligently failed to deliver the baby many hours earlier than the actual time of birth and that the delay caused the baby to suffer lack of oxygen to the brain that caused the baby’s permanent brain damage. It was also argued that if the midwife had properly interpreted the fetal heart monitoring during the delay, the fetal distress would have been noted and a faster delivery would have avoided the injuries that took place.

Fetal heart monitoring during labor and delivery involves the continuous electronic measurement of the fetal heart rate which can be viewed as tracings on a screen that can be recorded either continuously or periodically to paper. Measuring and monitoring the fetal heart rate during labor and delivery is important because changes in the fetal heart rate can mean that the baby is under too much stress that may be depriving the baby of oxygen which would mean that the baby needs to be delivered as soon as possible.

The jury, in this case, agreed with the plaintiff and found that the midwife’s failure to properly use and interpret the fetal heart monitoring was the cause of the oxygen deprivation experienced by the baby during labor and delivery and that the baby’s brain damage resulted from the lack of oxygen.

The jury rendered a $4 million damage award.

Nelson v. Trinity Medical Center

A medical malpractice lawsuit was filed based upon events that took place during the birth of Kristen Nelson, daughter of Diane and Orlan Nelson, in Trinity Medical Center.

When Diane Nelson’s labor began, the Nelsons left their home to go to the hospital in Minot, North Dakota. At trial, Diane Nelson testified that during the drive to Minot the frequency of her contractions increased in a rapid manner and that she began to experience severe abdominal pain and tightness in her stomach.

Once the Nelson’s arrived at Trinity Medical Center they informed the nursing staff of what had occurred during the drive to Minot. Diane Nelson was then placed in a room and a Caesarean section was performed.

Diane Nelson’s pregnancy was managed by Dr. Michael Vandall and Dr. David MacDonald. They had left orders that all their patients were to be placed on a continuous fetal heart-rate monitor. However, a monitor was not placed upon Diane Nelson until later in the delivery. This occurred even though Dr. Vandall had discussed the use of a monitor with the acting nurse, Nurse Orr. Nurse Orr testified that she did not place a monitor upon Diane Nelson because she believed both of Trinity’s monitors to be in use but admitted that she did not look for a monitor. When a monitor was finally placed upon Diane Nelson it indicated that the child was in fetal distress and an emergency Caesarean section was then performed.

The Nelson’s daughter was born severely brain-damaged. The medical theory behind the brain damage was that it was caused by a placental abruption—a separation of the placenta from the uterine wall causing a loss of oxygen via the blood supply to the child. There was evidence presented at trial that a placental abruption could have been diagnosed by a fetal heart-rate monitor.

The case was settled with both Dr. Vandal and Dr. MacDonald. The case proceeded with Trinity Medical Center as the sole defendant and the jury sided with the plaintiffs, awarding $7,080,454.18 in damages.

Footnotes

[1] N.D. Cent. Code § 28-01-18

[2] N.D. Cent. Code § 32-03.2-02

[3] N.D. Cent. Code § 32-03.2- 04

[4] N.D. Cent. Code § 32-62-02

[5] N.D. Cent. Code § 32-03.2-11

[6] N.D. Cent. Code § 28-01-46

[7] N.D. Cent. Code § 32-12.1-04

[8] N.D. Cent. Code § 32-42-03