Medical Malpractice North Dakota

5 Things To Know About Medical Malpractice In North Dakota

February 15, 2016

Currently, I am preparing for a trial that begins in March. For a trial lawyer, the adrenaline associated with a trial may be analogous to a professional athlete getting ready to perform on the biggest stage in their sport (at least I assume, since I’m not much of an athlete). I always look forward to trial, as it is my opportunity to fight hard for my client to help solve a problem that has likely catastrophically changed his or her life. The trial I am currently preparing for is a case involving medical malpractice. Since I have been with the case since the inception of the lawsuit, it got me thinking about all of the hurdles and limitations associated with a medical malpractice case in North Dakota. So, I thought I would give a brief (or maybe not so brief) synopsis of how a medical malpractice case works in North Dakota. I apologize in advance if this gets complicated, but North Dakota medical malpractice cases contain many hurdles or obstacles that must be met before an injured person is even allowed to get their day in Court to fight for the damages he or she deserves. As always, consult an attorney if you have questions.

Statute Of Limitations For Medical Malpractice

In civil tort cases, there are limitations periods that require the case be forever barred or not allowed to go forward if the case is not served prior to that time frame lapsing. In a medical malpractice case in North Dakota, that deadline comes quick, as there is a two year limitations period. While there are exceptions to the rule, I always caution folks that to be 100% safe, a lawsuit must be served within two years of the date the malpractice occurred. Because there are additional things that need to be done prior to even serving the lawsuit, my advice would be to get the ball rolling on the case as soon as possible. While I know that can be difficult when you are attempting to simply recover from your injuries, it is imperative that you contact an attorney right away for a consultation on the case far in advance of the two-year limitation period.

Serving A Lawsuit For Medical Malpractice

In order to start a lawsuit for medical malpractice in the State of North Dakota, service of the Summons and Complaint is all that is required. These are paper documents put together that contain instructions to the Defendant Doctor or Hospital related to the time for Answering the Complaint, as well as providing the allegations of what happened that led to the claim. Also, these documents have certain service requirements that have to be met pursuant to Rule 4 of the North Dakota Rules of Civil Procedure, which includes that any personal service must be made by someone who is not interested in the lawsuit and over the age of 18. For instance, I would not be allowed to individually serve the lawsuit for my client, because I have a direct interest in the case. Because there are technical requirements for service of a lawsuit, I believe it is always best to consult with an attorney to make certain everything is done correctly.

Alternative Dispute Resolution Requirements

North Dakota statutes contain an extra hurdle in medical malpractice cases that require the Patient (Plaintiff) first be advised by his or her attorney as to alternative dispute resolution options, as well as requiring the attorney (or party) to approach the Defendant Doctor or Hospital (usually through their attorney) to make a good faith effort to resolve all or part of the claim through alternative dispute resolution prior to initiating the lawsuit.

Now, if you have not yet fallen asleep, let me explain alternative dispute resolution (ADR). ADR includes alternative ways for parties to attempt to come to a settlement without the need for the Court system. My preferred form of ADR is mediation, as a third party mediator is chosen by the parties and that person simply tries to help the parties come to a settlement. The reason I like this method of ADR the best is it does not require a party to agree to something they are not willing to accept for a settlement and provides an opportunity for all sides to discuss the strengths and weaknesses of their cases openly, as the mediation process is not allowed to be used as evidence in any subsequent case. Another form of ADR is arbitration (non-binding or binding). This is basically a mini-trial where an independent third party or panel of individuals are chosen by the parties to come to a decision after hearing the evidence. While I practiced law in Las Vegas, there were some cases where arbitration was mandatory. While I am not saying it is the case in all arbitrations, I felt that most arbitrations I was involved with, the arbitrator basically “split the baby”.

Expert Report Requirement 

North Dakota requires that within 90 days of service of the lawsuit, an admissible expert report must be served on the Defendant Doctor and/or Hospital. Basically, this means that an expert in the field of medicine in which the malpractice took place needs to review the medical records and provide an opinion that the standard of care was not met in the care and treatment of the patient. This opinion has to be held to a “reasonable degree of medical certainty”. There are exceptions to this rule as well, but in general, the great majority of medical malpractice cases require this expert report. Failure to serve the expert report in time for a case that requires one subjects a case to dismissal. This could be fatal to a case if the statute of limitations discussed above has already passed.

Damages Limitation In Medical Malpractice

In North Dakota, non-economic damages in medical malpractice cases are limited to $500,000. While the jury is not allowed to hear about this limitation at trial, if they award anything higher than the limitation, the Judge reduces the award to $500,000 after the verdict. Non-economic damages include pain and suffering, meaning the pain and suffering prior to trial, as well as any recovery for future pain and suffering for the rest of one’s life. In catastrophic cases, this limitation is far too low in my opinion. However, it is the law in North Dakota at this time.

Economic damages are NOT limited. Economic damages include things such as medical bills, lost wages or earning capacity, and money needed to make accommodations to a living situation (such as handicap accessibility). There are many things that could be included in this arena, and some that are not allowed. Each case is different, which is why I always fully analyze any losses my client has to determine which ones can be requested at trial.

For economic damages, there can be some reductions in payments made by third parties. While the jury is not allowed to hear about the reduction, some damages may be reduced for what is called “collateral source” payments. Those are payments made by third parties that do not need to be repaid by the party who was injured. Importantly, collateral source payments do NOT include life insurance, other death or retirement benefits, or any insurance or benefit purchased by the party that was injured. Therefore, if a person has a health insurance policy that they pay for, any payments made by the health insurance for medical bills will not reduce those damages. With that said, a lot of times insurance companies will claim what is called “subrogation” for amounts they have paid, meaning if you recover damages that include amounts they paid for, you have to pay them back.

Contact SW&L

I know this has likely been a lot to digest (and may have bored you to death), but as you can see, medical malpractice cases are complicated and require many obstacles to be overcome before a person is even allowed to get their day in Court. That is why I suggest hiring an attorney if you feel you have a case for medical malpractice. I am the attorney at SW&L who handles medical malpractice cases, and I would be more than willing to speak to anyone about their potential case. All initial consults are free, and all cases I take on are on a contingency fee basis (meaning I only get paid if you win).

Should you have a claim you would like to discuss, please do not hesitate to contact our Medical Malpractice Team at 701-297-2890.