North Dakota Medical Malpractice Summary

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Statutes of Limitations

A claimant is required to bring an action for medical malpractice or wrongful death within two years from the date the cause of action accrued. N.D. Cent. Code § 28-01-18 (1991). While North Dakota recognizes a discovery rule that may extend the period of limitations to two years from the date the injury was or should have been discovered, no action can be brought more than six years after the date of injury. Id. However, North Dakota courts presume that the occurrence is discovered or should have been discovered at the time of death and, therefore, the maximum period of limitation for wrongful death actions in which medical malpractice is alleged is two years. Hubbard v. Libi, 229 N.W.2d 82 (N.D. 1975).

If the claimant is a minor, insane, or imprisoned when the cause of action accrues, the statute is tolled during the period of disability. N.D. Cent. Code § 28-01-25 (1991). However, this saving provision will not extend the statute more than five years for the insane or imprisoned, or more than twelve years for a minor with a medical malpractice claim. If time is extended, the action must be brought within one year after the disability ceases. Id.

Contributory or Comparative Negligence

North Dakota has adopted the doctrine of modified comparative negligence. N.D. Cent. Code § 32-03.2-02 (1996). Under this doctrine, a claimant’s action is barred if his fault equals or exceeds the combined fault of all others who contributed to the injury. Otherwise, the claimant’s recovery is diminished in proportion to his degree of fault. Id.

Joint and Several Liability

North Dakota has eliminated joint and several liability in personal injury and death cases and provides instead that each party is “liable only for the amount of damages attributable to the percentage of fault of that party.” N.D. Cent. Code § 32- 03.2-02 (1996). Joint and several liability is imposed, however, on joint tortfeasors who acted in concert. Id.

Contribution

The right of contribution in cases decided after the adoption of comparative negligence is determined by the parties’ relative degrees of fault. Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979). Contribution can be sought in a separate action brought within one year of judgment. N.D. Cent. Code § 32-38-03(1) (1996). Contribution may also be pursued by motion during the original proceeding. Id. However, a settling tortfeasor does not have a right of contribution against any tortfeasor whose liability is not extinguished by the settlement or for an amount in excess of what is reasonable. N.D. Cent. Code § 32- 38-01 (1996).

Vicarious Liability

North Dakota recognizes that a hospital granting staff privileges to a negligent doctor can be liable under a theory of negligent staffing. Benedict v. St. Luke’s Hospitals, 365 N.W.2d 499 (N.D. 1985). The court also recognized in dicta the validity and applicability of the theory of ostensible agency in the doctor-hospital context. Id.

Expert Testimony

A claimant is required to obtain a supporting expert opinion, except in cases of obvious malpractice, within three months of filing a medical malpractice complaint. N.D. Cent. Code § 28-01-46 (Supp. 1997). This requirement does not apply to cases in which the claimant alleges lack of informed consent, unintentional failure to remove a foreign object, or the performance of a medical procedure upon either the wrong patient, organ, limb, or other part of the patient’s body. Id.

Damage Caps

For claims arising after April 1, 1995, there is a $500,000 cap on non-economic damages in medical malpractice cases. This applies regardless of the number of defendants, the number of theories, or the number of family members who sue. N.D. Cent. Code § 32-62-02 (1996). A jury may award economic damages in an unlimited amount, N.D. Cent. Code § 32-03.2- 04 (1996), but any awards for economic damages that exceed $250,000 (before a percentage for contributory fault is subtracted) must be reviewed by the court upon a party’s motion. The moving party has the burden of proving that the amount awarded by the jury is not reasonable in relation to the economic damages sustained by the plaintiff. N.D. Cent. Code § 32-03.2-08 (1996). (See Patient Compensation Funds and Physician Insurance for information applicable to physicians with state-sponsored insurance.)

Punitive damages are limited to twice compensatory damages plus $250,000. N.D. Cent. Code § 32-03.2-11 (Supp. 1997).

Statutory Cap on Attorneys’ Fees

North Dakota does not place a cap on attorneys’ fees, nor does it require that contingent fee arrangements be approved by the court. N.D. Cent. Code § 28-26-01 (1991).

Periodic Payments

When a damage award includes future economic damages for continuing institutional or custodial care which will last beyond two years, a party may request the court to order periodic payments. N.D. Cent. Code § 32-03.2-09 (1996). The court has the option of reviewing and adjusting the amount of the periodic payments. Id. Upon the death of the injured person, “the obligation to provide for further continuing care shall terminate.” Id.

Collateral Source Rule

A party found liable can apply to the court for a reduction of economic damages to the extent that the economic loss has been paid by a collateral source. N.D. Cent. Code § 32-03.2-06 (1996). The statute defines the term “collateral source” as any payment covering an economic loss which does not require repayment, but the term does not include life insurance, death or retirement benefits, or any insurance or benefits purchased by the claimant. Id.

Pre-Judgment Interest

North Dakota does not have a statute specifically granting tort claimants a right to pre-judgment interest. However, it is within the jury’s discretion to grant pre-judgment interest for tort claims. N.D. Cent. Code § 32-03-05 (1996); Patch v. Sebelius, 349 N.W.2d 637 (N.D. 1984).

Patient Compensation Funds and Physician Insurance

North Dakota has established the North Dakota Medical Malpractice Mutual Insurance Company. N.D. Cent. Code § 26.1-14-11 (1995). The North Dakota plan creates a cap on the liability of its policyholders. The liability of any policyholder carrying applicable insurance with limits of at least $500,000 per occurrence and $1,000,000 in the aggregate may not exceed the amount of coverage. Id.

Immunities

North Dakota has abolished governmental tort immunity as it relates to all political subdivisions, including counties, townships, cities, and any other units of local government, but not the state government. N.D. Cent. Code § 32-12.1-01 (1996). Negligent acts of employees of political subdivisions are actionable against the political subdivision only; negligent employees are not personally liable. N.D. Cent. Code § 32-12.1-04 (1996).

A political subdivision’s liability is limited to $250,000 per claimant or $500,000 for injuries to three or more people during a single occurrence. N.D. Cent. Code § 32-12.1-03 (1996). Political subdivisions are also immune from liability for punitive or exemplary damages. Id.

Suits against political subdivisions must be brought within three years from the time the cause of action accrued. N.D. Cent. Code § 32-12.1-10 (1996).

Political subdivisions may form self-insurance pools. N.D. Cent. Code § 26.1-23.1-01 (1996). Such a pool arrangement will not affect the liability limits of a participating government entity. Id.

Arbitration

Before bringing a claim for medical malpractice, the claimant’s attorney must inform the claimant about all alternative dispute resolution options available to him. N.D. Cent. Code § 32-42-03 (1996). Similarly, upon notice of a claim, defense counsel must inform the health care provider about the alternatives. Id. Both parties must make a good faith effort to resolve the dispute via alternative dispute resolution before a lawsuit is filed, and an attorney for a party who fails to do so may be sanctioned. Id.

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Revision Date: February 6, 1998