Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
North Dakota caps non-economic (pain and suffering) damages in medical malpractice cases at $500,000, no matter how severe a patient's injury. Awards in excess of $250,000 are subject to review by the judge.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. North Dakota instead follows a rule of several liability, pursuant to which each defendant is liable only in proportion to the party's fault for causing the plaintiff's damages. However, if parties act in concert when committing a tortious act, aid or encourage the act, or ratify or adopt the tortious act for their own benefit, they may be held jointly liable for all damages attributable to their combined percentage of fault for the plaintiff's injury.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. North Dakota has modified that rule, such that collateral source payments are admissible if the collateral source was not paid for by the beneficiary (for example, a public assistance program such as Medicaid), but remain inadmissible if the beneficiary paid for the collateral source benefits (for example, an insurance policy purchased by the beneficiary).
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In North Dakota, a medical malpractice claim must be filed within two years after the cause of action accrues, but not more than six years after the act or omission alleged to have caused the injury unless concaled by fraud. For minors under the age of eighteen, the time before the minor reaches the age of majority is not counted toward the limitations, but the limitations period may not be extended by more than twelve years.
Additional rules affecting malpractice litigation in the State of North Dakota include:
Alternative Dispute Resolution
In North Dakota, the parties to a malpractice case are required to make a good faith effort to resolve part or all of a health care malpractice claim through alternative dispute resolution before the claimant begins a medical malpractice lawsuit.
Affidavit of Merit
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In North Dakota, within three months of filing a medical malpractice action, the plaintiff must serve upon all defendants an affidavit from a qualified expert sufficient to support a prima facie case of medical negligence. The plaintiff can petition the court to extend the time for service upon a showing of good cause. The affidavit must identify the expert, describe the expert's field of medical expertise, and briefly summarize the basis of the expert's opinion. The affidavit is not required if the cause of action is based upon the failure to remove a foreign substance from within the body of a patient, the performance of a medical procedure on the wrong patient or wrong part of tha patient's body, or other obvious act of malpractice.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under North Dakota's apology law, a statement, affirmation, gesture, or conduct of a health care provider, the provider's employee or agent, that expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient or to a patient's relative or representative is not admissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing regarding the health care provider.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.