Medical Malpractice

Medical Malpractice Lawsuit Requirements in North Dakota

By David Goguen, J.D., University of San Francisco School of Law
If you're planning on filing a medical malpractice case in North Dakota, chances are you need to file an "expert affidavit" within three months of starting the lawsuit.

In North Dakota, as in every state, a medical malpractice lawsuit is a complicated undertaking, especially when compared with other kinds of civil claims. For one thing, the medical and legal issues inherent to these kinds of cases are complex. A medical malpractice lawsuit often involves the introduction of extensive treatment records, as well as the in-depth testimony of numerous medical experts. And in most states, North Dakota included, the injured patient must comply with certain procedural rules right at -- or close to -- the outset of the case.

These safeguards have been put in place as part of tort reform efforts, which seek to discourage the filing of frivolous injury-related lawsuits, and keep down the rising costs of health care providers' liability insurance. In this article, we'll summarize one of the most important of these rules in North Dakota, the "expert affidavit" requirement for most medical malpractice lawsuits filed in the state.

"Expert Affidavit" Required for Most N.D. Medical Malpractice Lawsuits

If you file a medical malpractice lawsuit in North Dakota's courts, within three months of the filing of the initial complaint (that's the document that lays out your allegations against the defendant health care provider), you must file (and serve on each defendant) an affidavit in which a qualified expert witness indicates his or her support for a "prima facie" argument of medical negligence on the part of the provider. This requirement, spelled out at North Dakota Century Code section 28-01-46, acts as something of a "post-requisite" for the filing of a medical malpractice lawsuit against:

  • a physician
  • a nurse
  • a hospital or assisted living facility licensed by the state
  • an ambulatory surgery center
  • a group of physicians operating a clinic or outpatient care facility, or
  • any other health care organization.

According to section 28-01-46, the affidavit must:

  • identify the expert (including his or her name and business address) offering the opinion
  • describe the expert's field of expertise, and
  • include a brief summary of the basis for the expert's opinion.

Usually, the qualified expert (typically a physician or other health care professional who has experience in the same area of medicine as the defendant health care provider) must become familiar enough with your case to state that:

  • in treating you, the defendant (the health care professional being sued) deviated from the applicable standard of care, and
  • this provision of sub-standard care caused or contributed to the harm alleged by you in the lawsuit.

Extensions and Failure to File

Section 28-01-46 authorizes the court to set a later date for serving the affidavit, if the plaintiff can show "good cause" and if the request for additional time is made before the three month post-lawsuit filing period has passed.

Failure to file a compliant and timely affidavit will result in the dismissal of your medical malpractice lawsuit "without prejudice," meaning you'll have the opportunity to re-file the lawsuit (or just comply with the expert affidavit requirement), as long as you're still within the lawsuit filing time limits set by the North Dakota medical malpractice statute of limitations.

(Learn more: Do I Have a Medical Malpractice Case?)

Exception for Cases of "Obvious" Medical Malpractice

North Dakota Century Code section 28-01-46 makes clear that no expert affidavit is required for an "obvious occurrence" of medical malpractice, such as:

  • "unintentional failure to remove a foreign substance" from the patient's body, and
  • performance of a medical procedure on the wrong person, or
  • performance of a medical procedure on the wrong organ, limb, or other part of a patient's body.

More Information on North Dakota Medical Malpractice Cases

Besides the expert affidavit requirement we've discussed in this article, a North Dakota medical malpractice plaintiff also needs to be aware of -- and be in compliance with -- the lawsuit filing deadline set by the North Dakota medical malpractice statute of limitations.

For more details on this expert affidavit requirement and anything else related to the filing of a North Dakota medical malpractice case -- and of course, for legal advice that's tailored to your specific situation -- it may be time to talk with an experienced North Dakota medical malpractice lawyer.

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