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The Law of Medical Malpractice in North Dakota: A Survey of Basic Considerations

The Law of Medical Malpractice in North Dakota:  A Survey of Basic Considerations

North Dakota medical malpractice law is among the most complex legal practice areas.  The statutes, case law, and regulations governing medical malpractice law in North Dakota are highly technical.  For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim.  Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in North Dakota exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

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Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in North Dakota by both members of the general public as well as practicing lawyers.  This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of North Dakota medical malpractice law in practice.  It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in North Dakota.  After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case.  Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in North Dakota.

Below is a list of topics covered in this article.  You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts

-What is Medical Malpractice in North Dakota?

-Required Elements of a Medical Malpractice Claim in North Dakota

-Introduction

-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims

-Introduction to Statute of Limitations

-Statute of Limitations for Medical Malpractice Claims in North Dakota

-The Discovery Rule

-Introduction

-The Discovery Rule in North Dakota

-Special Provisions

-Minors

-Insanity

-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery

-Introduction

-Statute of Repose in North Dakota

IV. Immunities and Limitations on Liability

-Sovereign Immunity

-Introduction

-Sovereign Immunity in North Dakota

-Claims against the State

-Claims against Political Subdivisions

-Good Samaritan Law

-Introduction

-Good Samaritan Law in North Dakota

-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

-Basic Elements

-Notice Pleading

VI. Expert Medical Witnesses

-Introduction

-Who Qualifies as An Expert Medical Witness

-Admissibility of Expert Testimony

-Introduction

-Admissibility of Expert Testimony in North Dakota

VII. Comparative Negligence

-Modified Comparative Negligence with 50% Bar Rule

-Apportionment of Fault with Multiple Defendants

VIII. Limitation on Damages

-Noneconomic Damages

-Economic and Punitive Damages

-Separate Finding on Damages

IX. Limitations on Attorney Fees

-Contingent Fee Arrangement

-Limitations on Attorney Fees in North Dakota

X. Apologies and Gestures of Sympathy

XI. Pre-Suit Alternative Dispute Resolution

XII. Website Disclaimer

 

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in North Dakota?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in North Dakota

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under North Dakota law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

North Dakota medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are as follows.

 

  1. Standard of care—applicable standard of care, recognized by the law, requiring the healthcare provider to conform to certain conduct, e., duty;

 

  1. Breach—a failure on the healthcare provider’s part to conform to the standard required or violation of the standard of care, e., a breach; and

 

  1. Causation—the causal relationship between the violation or breach of the applicable standard of care and the harm complained of. Johnson v. Mid Dakota Clinic, PC, 864 N.W.2d 269, 273 (N.D. 2015).

The North Dakota Supreme Court has repeatedly instructed that the standard of care is as follows: “A physician is required to exercise such reasonable care and skill as are exercised ordinarily by physicians practicing in similar localities in the same general line of practice.”  Winkjer v. Herr, 277 N.W.2d 579, 583-584 (N.D. 1979).  Notably, under North Dakota law, a “medical malpractice plaintiff may establish the relevant standard of care and prima facie case through cross-examination of the defendant physician.”  Greenwood v. Paracelsus Health Care Corp. of North Dakota, 622 N.W.2d 195, 200 (N.D. 2001).

Generally, expert medical testimony is required to establish the foregoing basic elements of a medical malpractice claim.  Winkjer, 277 N.W.2d at 583.  The North Dakota Supreme Court stated: “Our caselaw generally requires that the plaintiff establish through expert testimony the degree of care and skill required of a physician, and whether specified acts fall below that standard of care.”  Greenwood, 622 N.W.2d at 200.

Additionally, expert testimony is generally required to establish a compensable medical malpractice claim by statute.  North Dakota Century Code (“NDCC”) § 28-01046.  Within three months of commencing an action, the plaintiff must generally submit an affidavit from an appropriate expert witness to support the claim of medical negligence.  Id.  The statute provides:

Any action for injury or death alleging professional negligence by a physician, nurse, hospital, or nursing, basic, or assisted living facility licensed by this state or by any other health care organization, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff if the plaintiff’s request for an extension of time is made before the expiration of the three-month period following commencement of the action.  The expert’s 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.  This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.

The North Dakota Supreme Court, explained the purpose of NDCC § 28-01-46 in Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D. 1993).

Section 28-01-46 was designed to minimize frivolous claims against physicians, nurses, and hospitals by avoiding the necessity of a trial in an action based upon professional negligence unless the plaintiff obtains an expert opinion to substantiate the allegations of negligence.  The statute thus seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for a claim.

Except for the three month limit for obtaining an admissible supporting expert opinion, § 28-01-46 has been viewed as essentially codifying the pre-existing case law in this jurisdiction requiring expert testimony to support a prima facie claim of medical malpractice. A prima facie case of medical malpractice consists of expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.

However, the North Dakota Supreme Court acknowledged that expert witness testimony is not always required to establish each element of a medical malpractice claim.  Greenwood, 622 N.W.2d at 200.  The Supreme Court explained: “Medical malpractice cases typically involve a complex jumble of medical, technical, and ordinary fact questions.  While expert testimony may be necessary to assist the jury in sorting out the medical and technical issues, the ordinary fact questions are for the jury to decide.”  Id.

For instance, where “the breach is so egregious that a layman is capable of comprehending its enormity,” expert testimony is not required.  [internal quotation marks omitted] Johnson, 864 N.W.2d at 273.  NDCC § 28-01-46 itself acknowledges that expert testimony is not always required.  The last sentence of the statute states: “This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.”  In other words, in those situations, laypeople are fully capable of determining that the applicable standard of care was breached without the need for expert witness testimony to establish either the standard of care or breach thereof.

The North Dakota Supreme Court stated that the issue of proximate cause is a question of fact for the trier of fact.  Peterson v. Hart, 278 N.W.2d 133, 135 (N.D. 1979).  The Supreme Court explained: “To constitute actionable negligence, there must be a causal connection between the negligence and the injury sustained; and for the negligence to be the proximate cause of the injury, … the injury to the plaintiff must have resulted as a direct consequence of the negligent breach” of the standard of care.  Moum v. Maercklein, 201 N.W.2d 399, 402 (N.D. 1972).

The Court’s standard definition of proximate cause was first articulated in Johnson v. Minneapolis, St.P. & S.S.M. Ry. Co., 209 N.W. 786, 789 (N.D. 1926), in which it stated that proximate cause is “that cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.”  As one of the basic elements of a medical malpractice claim, establishing causation generally requires expert witness testimony.  Winkjer, 277 N.W.2d at 583.  Once expert testimony is presented on the issue of causation, then it is up to the trier of fact to decide whether the negligence was the proximate cause of the complained of injury.  Peterson, 278 N.W.2d at 135.

II. Filing Deadlines for Medical Malpractice Claims

 Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in North Dakota  

In general, medical malpractice claims in North Dakota are subject to a two-year statute of limitations contained NDCC § 28-01018(3).  It provides that “actions must be commenced within two years after the claim for relief has accrued….”  The statute does not define the term ‘accrued,’ which is a critical component of the statute of limitations since accrual triggers the running of the two-year limitations period.  As such, knowing when a claim accrues is essential for calculating the period in which the injured party may commence a medical malpractice claim before it is time-barred by the two-year statute of limitations.

The question of when a claim accrues is not an issue when the injury is readily apparent at the time of the alleged act or omission constituting negligence.  But the two do not always occur simultaneously, and in those situations, the question of when the claim accrues is a critical issue.  That is, does accrual occur at the time of the alleged act or omission, when the injury manifests itself to the patient, or the occurrence of some other event?

The North Dakota Supreme Court answered the question in Anderson v. Shook, 333 N.W.2d 708 (N.D. 1983).  In Anderson, the Court announced: “We hold that the North Dakota medical malpractice two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of her injury, its cause, and the defendant’s possible negligence….” [emphasis supplied] Id. at 712.  This language represents the Supreme Court’s clarification of the Discovery Rule as applied to medical malpractice claims in North Dakota.  See next Section of this article for a discussion on the Discovery Rule.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under North Dakota law in calculating the exact date the applicable limitations period ends.  Rule 6 of the North Dakota Rules of Civil Procedure sets forth how time is calculated under North Dakota law.  It instructs:

 

  1. Exclude the day of the event that triggers the period;

 

  1. Count every day, including intermediate Saturdays, Sundays, and legal holidays; and

 

  1. Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

Once the date of accrual of a medical malpractice claim in known, the exact date the two-year limitations period ends can easily be calculated by applying the foregoing rules for the computation of time.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in North Dakota

The North Dakota Supreme Court introduced the Discovery Rule in medical malpractice cases in the 1968 case Iverson v. Lancaster, 158 N.W.2d 507, 510 (N.D. 1968).  In Iverson, the Court stated that “the limitation period commences to run against a malpractice action from the time the act of malpractice with resulting injury is, or by reasonable diligence could be, discovered.”  Id.   The Court made it clear in Iverson that the alleged negligence itself is not the triggering event for the commencement of the limitations period.  But it remained unclear whether the limitations period begins to run when (1) the injury is discovered and (2) knowledge that the injury was likely caused by the medical treatment or whether a third condition is required to trigger the running of the limitations period, i.e., (3) knowledge that it is reasonably probable that the medical treatment was negligent.

The North Dakota Supreme Court answered the question in Anderson v. Shook, 333 N.W.2d 708 (N.D. 1983).  In Anderson, the Court announced: “We hold that the North Dakota medical malpractice two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of her injury, its cause, and the defendant’s possible negligence….” [emphasis supplied]  Id. at 712.  Therefore, under North Dakota’s formulation of the Discovery Rule in medical malpractice cases, the two-year limitations period begins to run when the plaintiff discovers, or through the exercise of reasonable diligence could discover, (1) the injury, (2) it was likely a result of medical treatment, and (3) the medical treatment was likely negligent.

Subsequently, the North Dakota Supreme Court provided the following guidance for the application of the Discovery Rule.

The objective question is whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists.  The plaintiff does not have to be subjectively convinced that he has been injured and that the injury was caused by the defendant’s negligence.  A malpractice plaintiff’s knowledge is ordinarily a question of fact which is inappropriate for summary judgment.  However, this issue becomes a question of law when reasonable minds could not come to but one conclusion.  [internal citations and quotation marks omitted] Long v. Jaszczak, 688 N.W.2d 173, 176 (N.D. 2004).

Special Provisions

Minors

Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims.  NDCC § 28-01-25 provides that if the plaintiff is a minor at the time the claim accrues the statute of limitations is tolled until the disability is removed, i.e., reaches the age of 18.  Once the plaintiff turns 18, a claim must be filed within one year of that date.  Id.  In no event can the statute of limitations be tolled for more than 12 years.  Id.

Insanity

Persons suffering from the legal disability of insanity are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims.  NDCC § 28-01-25 provides that if the plaintiff is insane at the time the claim accrues the statute of limitations is tolled for up to five years.  Once the disability ceases, a claim must be filed within one year of the date of the disability’s removal.  Id.

Final Thoughts

The application of North Dakota’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced North Dakota medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an North Dakota attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in North Dakota

North Dakota effectively has a six-year statute of repose that is applicable to medical malpractice claims.  NDCC § 28-01-18(3).  It states, in pertinent part, that “the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital.”  Notice that the six-year repose period begins on the date of the alleged negligence and will expire even if the injury is not discovered within the repose period.

However, North Dakota’s six-year statute of repose does not serve as an absolute bar to recovery.  The statute expressly provides that the six-year repose period will not bar a claim that is not discovered due to the fraudulent concealment by the potential defendant.  Additionally, the statute states: “This limitation is subject to the provisions of section 28-01-25.”  Id.  Section 28-01-25 sets forth the statute of limitations applicable to minors and the insane who have a medical malpractice claim.  Accordingly, the six-year statute of repose is subordinate to the limitations period applicable to claims by minors and the insane.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in North Dakota

Claims against the State

Tort claims against the state and its employees are governed by NDCC § 32-12.2-02.  No claim may be brought against the state and its employees except as authorized in Chapter 32 of the NDCC.  By statute, an “action for an injury proximately caused by the alleged negligence, wrongful act, or omission of a state employee occurring within the scope of the employee’s employment must be brought against the state.”  NDCC § 32-12.2-03(1).  A medical malpractice claim may be brought against the state as follows:

The state may only be held liable for money damages for an injury proximately caused by the negligence or wrongful act or omission of a state employee acting within the employee’s scope of employment under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.  NDCC § 32-12.2-02(1).

A plaintiff bringing suit against the state for an injury “shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.”  NDCC § 32-12.2-04(1).

The applicable statute of limitations for actions against the state is contained in NDCC § 28-01-22.1.  It requires that actions against the state “be commenced within three years after the claim for relief has accrued.”  Id.  For purposes of the statute, a “claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence.”  Id.

The state’s liability is capped at $250,000 per person and $1,000,000 for any number of claims arising from any single occurrence.  NDCC § 32-12.2-02(2).  In addition, the state “may not be held liable, or be order to indemnify a state employee held liable, for punitive or exemplary damages.”  Id.

For purposes of the statute, the term ‘state’ includes an “agency, authority, board, body, branch, bureau, commission, committee, council, department, division, industry, institution, instrumentality and office of the state.”  NDCC § 32-12.2-01.

Claims against Political Subdivisions

North Dakota has eliminated governmental tort immunity with respect to political subdivisions.  NDCC § 32-12.1-03(1).  The statutes states:

Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant.

By statute, an “action for injuries proximately caused by the alleged negligence, wrongful act, or omission of an employee of a political subdivision occurring within the scope of the employee’s employment or office shall be brought against the political subdivision.”  NDCC § 32-12.1-04(1).  A claim against a political subdivision “must be commenced within three years after the claim for relief has accrued.”  NDCC § 32-12.1-10.

The liability of a political subdivision is capped at $250,000 per person and $1,000,000 “for any number of claims arising from any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions, which are involved in that occurrence.”  NDCC § 32-12.1-03(2).  In addition, a political subdivision “may not be held liable, or be order to indemnify an employee held liable, for punitive or exemplary damages.”  Id.

For purposes of the statute, NDCC § 32-12.1-02(6) defines the term ‘political subdivision’ as follows:

 

  1. Includes all counties, townships, park districts, school districts, cities, public nonprofit corporations, administrative or legal entities responsible for administration of joint powers agreements, and any other units of local government which are created either by statute or by the Constitution of North Dakota for local government or other public purposes, except no new units of government or political subdivisions are created or authorized by this chapter.

 

  1. Does not include nor may it be construed to mean either the state of North Dakota or any of the several agencies, boards, bureaus, commissions, councils, courts, departments, institutions, or offices of government which collectively constitute the government of the state of North Dakota.

For purposes of the statute, the term ‘employee’ “means any officer, employee, board member, volunteer, or servant of a political subdivision, whether elected or appointed and whether or not compensated. The term does not include an independent contractor, or any person performing tasks the details of which the political subdivision has no right to control.”  NDCC § 32-12.1-02(3).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in North Dakota

North Dakota has enacted a general Good Samaritan Act that is codified in NDCC § 32-03.1-02.  The statute provides immunity from civil damages for individuals who voluntarily render emergency care at the scene of an accident.  It states:

No person, or the person’s employer … who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.

Notice that the immunity granted by North Dakota’s Good Samaritan Act does not apply if the rendering of assistance constitutes “intentional misconduct or gross negligence.”  Id.  Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence or intentional acts of misconduct.

In addition, the immunity granted under North Dakota’s Good Samaritan law is not available to anyone “rendering aid or assistance with an expectation of remuneration….”  NDCC § 32-03.1-04.

The term ‘gross negligence’ is defined in NDCC § 32-03.1-01(4) as:

acts or omissions falling short of intentional misconduct which nevertheless show a failure to exercise even slight care or any conscious interest in the predictable consequences of the acts or omissions.  For the purposes of this chapter, “gross negligence” includes the failure of an aider to relinquish direction of the care of an injured or ill person when an appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance assumes or attempts to assume responsibility for the care of the injured or ill person.

The phrase ‘aid or assistance necessary or helpful in the circumstances’ is defined in NDCC § 32-03.1-01(1) as:

any actions which the aider reasonably believed were required to prevent death or serious permanent injury, disability or handicap, or reasonably believed would benefit the injured or ill person, depending upon the aider’s perception of the nature and severity of the injury or illness and the total emergency situation, and that the aider reasonably believed the aider could successfully undertake.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the North Dakota Century Code.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 32—Judicial Remedies.

V. Required Elements of a Medical Malpractice Complaint

Basic Elements

In North Dakota, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the North Dakota Rules of Civil Procedure.  The Explanatory Note to Rule 2 advises that the “old forms of action have been abolished, as has the distinction between ‘law’ and ‘equity’ cases.”

According to Rule 3, a “civil action is commenced by the service of a summons.”  The Explanatory Note to Rule 3 explains that the commencement of a civil action in North Dakota is different than the federal court system (and most states, which typically follow the federal procedures), which requires the filing of a complaint with the appropriate court to commence an action.  An action is commenced with respect to a defendant when the summons is served upon the defendant.  NDCC § 28-01-38.  According to the Explanatory Note to Rule 3: “An action is not commenced for the purpose of tolling a statute of limitation except as provided in” the foregoing statute.

Under Rule 4(c)(1), the summons must:

 

  1. specify the venue of the court in which the action is brought;

 

  1. contain the title of the action specifying the names of the parties;

 

  1. be directed to the defendant;

 

  1. state the time within which these rules require the defendant to appear and defend;

 

  1. notify the defendant that, if the defendant fails to appear and defend, default judgment will be rendered against the defendant for the relief demanded in the complaint; and

 

  1. be dated and subscribed by the plaintiff or the plaintiff’s attorney and include the post office address of the plaintiff or plaintiff’s attorney.

Rule 4(c)(2) requires that a copy of the complaint be served with the summons.

A complaint is one of the seven pleadings allowed in North Dakota.  Rule 7(a).  Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.

Under Rule 8(a), a complaint must contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for the relief sought, which may include relief in the alternative or different types of relief.”  NDCC § 32-03.2-07 states:

Any pleading for damages for death or injury to a person may pray for economic and noneconomic damages separately.  Any prayer for noneconomic damages of less than fifty thousand dollars or for economic damages may be for a specific dollar amount.  Any prayer for noneconomic damages for fifty thousand dollars or more must be stated generally as “a reasonable sum but not less than fifty thousand dollars”.

Each allegation in a complaint must be “simple, concise, and direct.  No technical form is required.”  Rule 8(d)(1).  The complaint “may set out two or more statements of a claim … alternatively or hypothetically, either in a single count … or in separate ones.  If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”  Rule 8(d)(2).  In addition, the complaint “may state as many separate claims” as the plaintiff has, “regardless of consistency.”  Rule 8(d)(3).  Finally, the complaint “must be construed so as to do justice.”  Rule 8(e).

The complaint “must have a caption with the court’s name and the county in which the action is brought, a title that names the parties,” and a designation as a complaint.  Rule 10(a).  “The title of the complaint must name all the parties….”  Id.  The complaint “must state its claims … in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”  Rule 10(b).  The complaint “must be signed by at least one attorney of record in the attorney’s name or by a party personally if the party is self-represented.”  Rule 11(a).  Additionally, the complaint “must state the signer’s address, electronic mail address for electronic service, and telephone number.”  Id.  If  an attorney signs the complaint, he or she must provide the attorney’s State Board of Law Examiners identification number.  Id.

Notice Pleading

North Dakota is a notice pleading state.  Matter of Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).  The North Dakota Supreme Court explained that with “the adoption of notice pleading in North Dakota, the formal character of the complaint no longer strictly determines the cause of action.”  Id.  The Supreme Court further explained: “Notice pleading only requires (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Rule 8(a), NDRCivP. Pleadings are to be liberally construed as to do substantial justice. Rule 8(f), NDRCivP.”  Id.  According to the North Dakota Supreme Court, “North Dakota’s rules do not require plaintiffs to allege every element of their claim.”  Farmers Union Mutual Insurance Company v. Decker, 704 N.W.2d 857, 868 (N.D. 2005).

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is Rule 702 of the North Dakota Rules of Evidence, which states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”  According to Rule 702, a prospective witness can qualify as an expert based on his or her “knowledge, skill, experience, training, or education.”

The North Dakota Supreme Court rejected the notion that to qualify as an expert witness in a medical malpractice case the prospective expert must hold the same title or work in the same practice area as the defendant against whom testimony will be offered.  Collom v. Pierson, 411 N.W.2d 92, 96 (N.D. 1987).  In Collom, the Supreme Court explained:

The notion that a medical witness must be of the same school of medicine as the medical defendant has not been significant for a long time, even before this state adopted the Federal patter of evidentiary rules.  It is not the school which he follows; but his knowledge, experience, and special training which qualifies the witness to testify as an expert in such cases.  If the medical witness has such knowledge, experience or special training, an objection about his particular field or practice only goes to the weight of his testimony, rather than to his competency to testify.  That, plainly, is what our current rules of evidence contemplate.” [internal citations and quotation marks omitted] Id.

According to the North Dakota Supreme Court, it “is well established that the qualification of an expert witness are primarily for the determination of the trial court, and its determination will not be reversed unless it appears that there was an abuse of discretion.”  Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D. 1990).  The Supreme Court observed that Rule 702 envisions wide latitude in qualifying a person an expert witness and that the actual qualifications of the prospective witness are what count rather than title or position.  Id.  The trial court has broad discretion in determining whether a prospective witness qualifies as an expert for purposes of providing opinion testimony, and its determination is reviewed on appeal under the abuse of discretion standard.  Flatt ex rel. Flatt v. Kantak, 687 N.W.2d 208, 218 (N.D. 2004).  The North Dakota Supreme Court stated that a “trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process.”  Id. at 218-219.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in North Dakota

North Dakota has not formally adopted either the Frye or Daubert standard.  On the contrary, in 2005, the North Dakota Supreme Court explicitly rejected the adoption of Daubert in State v. Hernandez, 707 N.W.2d 449, 453 (N.D. 2005), stating this “Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez’s invitation to adopt Daubert by judicial decision.”

The North Dakota Supreme Court instructed that under “North Dakota law, the admission of expert testimony is governed by” Rule 702Id.  The basic rule is that expert testimony “is allowable whenever ‘specialized knowledge’ will assist the jury.”  Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D. 1995).  Whether particular testimony will assist the trier of fact is “within the sound discretion of the trial court,” and the court has broad discretion in making that determination.  Id.  Any purported deficiencies in the expert witness’ qualifications or opinion testimony affect credibility, not admissibility.  Id.

The Supreme Court advised:

Rule 702, N.D.R.Ev., envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify.  An expert need not be a specialist in a highly particularized field if the expert’s knowledge, training, education, and experience will assist the trier of fact.  A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness’s testimony will assist the trier of fact.  A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.  We have said we are reluctant to interfere with the broad discretion given to a trial court to decide the qualifications and usefulness of expert witnesses.  A trial court does not abuse its discretion in admitting expert testimony whenever the expert’s specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or special certification. [internal citations omitted] Hernandez, 707 N.W.2d at 453-454.

VII. Comparative Negligence

Modified Comparative Negligence with 50% Bar Rule

By statute, North Dakota uses modified comparative negligence with a 50% bar rule.  NDCC § 32-03.2-02.  The statute provides that a plaintiff’s contributory fault does not bar recovery, stating:

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not equal to or greater than the defendant or defendants being sued by the plaintiff—the 50% bar rule.  If the plaintiff’s percentage share of determined fault is equal to or greater than the total of the defendant or defendants (i.e., plaintiff’s contributory negligence is determined to be 50% or greater), then the plaintiff is not entitled to any recovery.

The foregoing language in the above quoted portion of the statue is the codification of the 50% bar rule, which holds that if the plaintiff’s allocated percentage of fault is 50% or greater he or she is completely barred from recovering any damages.  For example, assume a plaintiff is determined to be 49% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $49,000 because the plaintiff’s allocated percentage share of fault, i.e., 49% or $49,000, is deducted from the damage award.  If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because North Dakota imposes the 50% bar rule.

Under contributory negligence (the doctrine that North Dakota followed prior to implementing the current doctrine of modified comparative negligence—Champagne v. United States, 513 N.W.2d 75, 81 (N.D. 1994)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under North Dakota’s current doctrine of modified comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system.  Under North Dakota’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury.  NDCC § 32-03.2-02.  Fault is determined and apportioned among the plaintiff and all defendants, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault.  Id.  The statute provides that “any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering” and that the “court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering.”  Id.

For example, assume a plaintiff is determined to be 25% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $75,000 because the plaintiff’s allocated percentage share of fault, i.e., 25% or $25,000, is deducted from the damage award.  If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because North Dakota imposes the 50% bar rule.

Under the statute, fault includes: “negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.”  NDCC § 32-03.2-02.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, North Dakota follows the combined comparison approach.  The statute states that a plaintiff is barred from any recovery if the plaintiff’s proportionate share of fault for his or her injury “was as great as the combined fault of all other persons who contribute to the injury….”  NDCC § 32-03.2-02.  This language provides for the combined comparison approach.

Under North Dakota law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

VIII. Limitation on Damages

Noneconomic Damages

North Dakota law imposes a $500,000 limit on the amount of noneconomic damages that can be recovered in a medical malpractice action.  NDCC § 32-42-02.  The statues states:

With respect to a health care malpractice action or claim, the total amount of compensation that may be awarded to a claimant or members of the claimant’s family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed five hundred thousand dollars, regardless of the number of health care providers and other defendants against whom the action or claim is brought or the number of actions or claims brought with respect to the injury. With respect to actions heard by a jury, the jury may not be informed of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section.

Notice that the statutory cap applies regardless of the number of defendants, the number of theories of recovery asserted, or the number of family members filing suit.  Also, the jury is not permitted to be informed about the cap on noneconomic damages.  If the jury awards an amount in excess of $500,000, the court must reduce it to the cap amount.

Noneconomic damages include pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.  NDCC § 32-03.2-04.

Economic and Punitive Damages

North Dakota does not impose a statutory cap on economic damages.  However, any party responsible for payment, or any portion, of a damage award of economic damages in excess of $250,000 has the right to request a review of the reasonableness of the award by the court.  NDCC § 32-03.2-08.

The party seeking the review has the burden “to establish that the amount of economic damage awarded was not reasonable in that it does not bear a reasonable relation to the economic damage incurred and to be incurred as proven by the party recovering the award.”  Id.  In the event the court determines that the jury award for economic damages is unreasonable, “the court shall reduce the award to reasonable economic damages.”  Id.

Punitive damages are permitted but capped at two times the amount of compensatory damages or $250,000, whichever is greater, but no punitive damages are permitted if the plaintiff is not awarded any compensatory damages.  NDCC § 32-03.2-11(4).  The jury may not be told about the statutory cap on punitive damages.  Id.  If the jury awards an amount in excess of the cap amount for punitive damages, the court must reduce the award to the cap amount.  Id.

Separate Finding on Damages

The trier of fact must make separate findings that must specify:

  1. The amount of compensation for past economic damages.
  2. The amount of compensation for future economic damages.
  3. The amount of compensation for noneconomic damages. NDCC § 32-03.2.-05.

VIII. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in North Dakota  

North Dakota law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  In fact, North Dakota statute expressly directs that attorney fees in civil actions be left up to the parties.  NDCC § 28-26-01 states “the amount of fees of attorneys in civil actions must be left to the agreement, express or implied, of the parties.”

However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in North Dakota under Rule 1.5 of the North Dakota Rules of Professional Conduct.  Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.  The factors to be considered in determining the reasonableness of a fee include the following:

 

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

 

  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

 

  • the fee customarily charged in the locality for similar legal services;

 

  • the amount involved and the results obtained;

 

  • the time limitations imposed by the client or by the circumstances;

 

  • the nature and length of the professional relationship with the client;

 

  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and

 

  • whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 states that the eight factors listed “are not exclusive.  Nor will each factor be relevant in each instance.”

Under the Rules, contingent fee arrangements are permissible.  Rule 1.5(c).  It states:

A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.  The agreement must identify any expenses for which the client will be liable whether or not the client is the prevailing party.  Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination, including itemization of expenses.

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

North Dakota is among the states that have enacted an “I’m Sorry” law.  It is contained in NDCC § 31-04-12(1) and is specific to healthcare providers.  The statute shields healthcare providers who communicate statements of sympathy or similar sentiments made by a healthcare provider to the alleged victim or family by making such communications inadmissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing.  The statute reads as follows:

A statement, affirmation, gesture, or conduct of a health care provider, or health care provider’s employee or agent, which 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.

The term ‘health care provider’ means:

  1. An individual licensed or certified by the state to deliver health care;
  2. A hospital or clinic, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, or a professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state; and
  3. A nursing, basic, or assisted living facility licensed by this state or by any other health care organization. NDCC § 31-04-12(2)(a).

The term ‘relative’ means “an individual who has a relationship to the patient by marriage, blood, or adoption.”  NDCC § 31-04-12(2)(b).

The term ‘representative’ means “a legal guardian, attorney, person designated to make decisions on behalf of a patient under a health care directive, or any person recognized in law or custom as a patient’s agent.”  NDCC § 31-04-12(2)(c).

Note that North Dakota’s statute on the issue provides relatively robust protection for healthcare providers.  In contrast to similar laws in most other states, North Dakota’s does not distinguish between statements of apology, sympathy, or benevolence and admissions of liability or guilt.  Accordingly, under North Dakota’s law, statements made by healthcare providers that can be characterized as an admission of error or mistake apparently still may not be used as evidence against them in a medical malpractice action.

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in North Dakota understand that they can still be useful to potential plaintiffs.  Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider.  While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XI. Pre-Suit Alternative Dispute Resolution

North Dakota statute requires that the lawyer representing a medical malpractice plaintiff to notify the plaintiff “about all reasonably available alternative dispute resolution options that may be available to the parties to settle the claim” before actually commencing a medical malpractice action.  NDCC § 32-42-03(1).  The lawyer for the defendant healthcare provider has a similar obligation to advise the defendant about all available alternative dispute resolution options.  NDCC § 32-42-03(2).  The parties are required by statute to “make a good-faith effort to resolve part or all of the health care malpractice claim through alternative dispute resolution before the claimant initiates a health care malpractice action.”  NDCC § 32-42-03(3).  The plaintiff’s complaint must contain a statement of compliance with the foregoing alternative dispute resolution requirements.  NDCC § 32-42-03(4).

XII. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

 

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