North Dakota Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in North Dakota.
Medical Malpractice North Dakota
One type of personal injury is medical malpractice, which is when someone endures an injury at the hands of a health care provider. The injury sustained needs to be significant, it also needs to have changed how the injured party lives to some extent. If this happens, then the injured party should ask the courts for compensation to pay for the damages that came as a result of the injury. There are many types of damages that a plaintiff can ask for, as the compensation can help make the process of recovery a bit easier. For anyone who has suffered an injury at the hands of a medical professional, a malpractice case should be the next step. It can make life easier, plus it allows for the focus to remain on healing.
The Definition of Medical Malpractice According to North Dakota Law
North Dakota says that medical malpractice is when a healthcare professional either does something to harm a patient or neglects to do something that ends up harming a patient. This action needs to be beneath what level of care is considered normal under the circumstances. If the injury is something significant enough to alter how the injured party lives, then a case of malpractice is often the next step. The goal of the lawsuit is to help cover the expenses of the injury and any treatment that is required to try to rectify the injury so that the person can heal. The laws in North Dakota are quite complex, which is why having a medical malpractice lawyer to file the case and manage the deadlines is such a good idea. Going into court without one means the case is far more likely to get dismissed entirely or result in far lower amounts of compensation than those with an attorney calling the shots.
What Needs to Be Proven in Medical Malpractice Cases?
The specifics that go with filing and proving North Dakota medical malpractice cases are sometimes confusing to keep up with. An attorney can make this process easier. The process begins with filing a lawsuit in court. Then, within three months, what is known as an Expert Affidavit must also be filed. This affidavit must include the following:
- The person’s name and how he or she is qualified to provide an expert medical opinion
- A summary of the opinion of the person who signed the affidavit
- The belief that the accused did not provide the standard of care the injured party had every right to expect
- The belief that this substandard care is what contributed to the injury that the case centers around
Here are some notes that are important to keep in mind when filing a case of malpractice. These are all important to note about the affidavit itself.
- It must be served to each defendant on the case.
- It must be filed within those three months of first filing the lawsuit.
- If the affidavit is not filed within three months, most times the injured party will be allowed to refile later, but that is not a guarantee.
- If there is a good reason for it, the injured party can request a later filing of the affidavit, so long as that request is made in those three months.
- There is one exception to filing the affidavit, and that is when the error caused is obvious, like when surgical equipment is not removed when a surgical procedure is complete.
The next step is the investigation and gathering of evidence. The court will want to see a good amount of evidence in the case. Here are the goals that the evidence should be able to help the prosecution prove:
- The injured party worked with the accused to get some type of medical care.
- The standard of care that was reasonable to expect for the injured party.
- The care that the injured party received was below that standard of care.
- The injury stemmed from that substandard care in some way.
- The defendant was connected to the injury directly, either through action or inaction.
Once the judge and jury believe these are proven in court, then the verdict and compensation can become the next step. When it comes to proving the criteria for a malpractice case has been met, no one does it better than an experienced medical malpractice attorney.
Examples of North Dakota Medical Malpractice
Many different ailments can be considered medical malpractice in the eyes of the court. It all depends on how the injury occurred, who was there at the time, and what type of result the injury had on the patient. Here are some of the examples courts often see as malpractice cases:
- Not having the alarms of medical equipment on so a warning can be sounded in the event of worsening vital signs or going through and turning those alarms off
- A laboring woman not having the medical care she needed and it resulted in the baby or mother getting injured or dying
- Operating on the wrong side of a patient’s body or extracting a tooth on the wrong side of the patient’s mouth
- Never taking the time to get a full patient history and that affecting the diagnosis and treatment of the patient
- Not providing the type of aftercare the patient needed so that he or she knew how to take care of him or herself after leaving the medical facility
- Not removing all surgical equipment after a surgical procedure
- Prescribing a medication that a patient was allergic to
- Permanent nerve damage after any type of medical procedure
- Patient mobility problems where a patient gets hurt instead of having the help to move around that he or she needed
- Providing treatment without taking the time to explain any potentially dangerous side effects on the patient
- Ignoring symptoms that point to an infection after any type of surgical procedure
- Ordering the wrong medical tests that do not match the symptoms
- Not taking note of obvious symptoms and assuming the less obvious problem was to blame, while not even testing for the obvious issue
- Not placing an intubation tube when a patient is struggling to breathe or not getting enough oxygen
- Not charting or taking regular vital signs and a patient’s condition declines
- Unnecessarily delaying the diagnosis of a patient that leads to a worsening of the patient’s condition
- Herniating the disc of a patient during a spinal adjustment
What Is the Statute of Limitations for Malpractice Cases?
In North Dakota, the statute of limitations is two years, but this is not for all cases. If there is no way for the injured party to know about his or her injury within that two-year time frame, then there are longer options available. The injured party has two years from when the injury was known about, or six years from whenever the injury took place, whichever ends first. No matter what, if six years have passed since the injury originally took place, no malpractice claim can be filed. There are no statutes referring to cases involving children or the mentally ill, like most states have, so these cases need to remain within the proper time limits as well.
What Types of Damages Does North Dakota Provide?
The damages for malpractice cases are different here than in most other states. The same types of damages occur, which are non-economic and monetary damages. However, the caps on these damages are different. For monetary damages, an injured party can ask for money to cover things like:
- The exact medical expenses the patient has had to incur due to the injury, such as prescription medication, bills for new procedures or treatments, equipment the injured party needed to recover, or therapy to relearn lost skills
- Future medical expenses for any type of future care the injury may require. This could include future surgeries, ongoing therapy, or consistently required medications
- Current pay that the injured party is unable to earn due to the injury and recovery
- Future wages if the injured party is unable to return to the job he or she had before the accident or one that would really earn them the same or more income
Non-economic damages are slightly different. Instead of covering actual costs, they involve putting a price on different aspects of the injury that were felt, including:
- The suffering or the pain that the injury caused
- Feeling embarrassed over the difference in how a patient may look or the loss of how someone must go through life due to the injury
- No longer being able to go through life the same as they once could, such as being able to help around the house, give the kids a bath, or even shower on his or her own
- Loss of direction or the companionship that accompanies the loss or severe injury of a spouse or parent
- Funeral and burial costs if the injured party died
The damage caps cover the non-economic type of damages, and those are limited to $500,000. No matter what happened or what the injury did to the patient, that is the maximum he or she will ever get back for how the injury affected them emotionally. There is no cap for monetary damages, but it is not as simple as being told by the judge what the injured party should get, and then it gets disbursed.
Instead, the accused has the opportunity to challenge any monetary ruling over $250,000. If the amount awarded is excessive, the accused has to prove why the amount is excessive. The burden of proof falls on the accused and is lifted from the injured party for these proceedings. It is then up to the judge if the amount seems to be within reason for what happened, or if the amount should be adjusted accordingly.
In North Dakota, there is also joint liability. This means that more than one person could be found guilty of causing the injury. It could be more than one doctor, the doctor and a nurse, the doctor and the hospital, or even the nurse and the injured party. The combinations are nearly endless. In such cases, the compensation changes slightly.
If the injured party is 50 percent or more responsible for the injury, no compensation will be awarded, and the case is closed. If the injured party is less than 50 percent at fault, then he or she can still receive compensation, but it will go down based on the percentage that the court decides the injured party is at fault. The rest of the fault would be divided up among the other accused parties who were found guilty of causing the injury in the case.
For example, say a doctor did not pay attention to a patient requesting help to the washroom. The patient could no longer wait, but fell and broke his or her leg. Upon going home, the patient did not use crutches, which made the leg injury worse. The court could find that the doctor, patient, and hospital were all liable for the injury. The judge may say the injured party is 30 percent at fault, the hospital is 40 percent at fault, and the doctor is 30 percent at fault. This means the injured party would get 70 percent of the compensation, with 40 percent coming from the hospital and the other 30 percent from the doctor.
Who Should File the Malpractice Claim?
In all cases, a malpractice claim should be filed by an experienced attorney. Attorneys know how to phrase the filing so that the court understands what the potential problems are that lead to the case. Plus, an attorney also understands the deadlines and procedures better than most laypeople ever could. However, several people within the family can file the claim if an attorney has not been hired yet. They include:
- The injured party or someone that he or she chooses to represent them
- A loved one left behind if the injured party is deceased
- The spouse of the person who passed. If there is no spouse, then the injured party’s children
- If there is no spouse or child, the parents of the injured party can file
- If the parents are deceased or unknown, the siblings or the grandparents can file a claim
Inquiring about who should file the claim should be done before the process gets started. Even if the family simply calls an attorney to find out who the most effective party is, it can help make the process easier.
Who Can the Accused Consist of in Medical Malpractice Claims?
The array of health care facilities and professionals who can be accused of malpractice is large and growing. It all depends on the type of injury sustained and where the injury took place. For most malpractice cases, the accused ends up being people or places like:
- Doctors, nurses, and aides
- Surgeons, the surgical staff, or an anesthesiologist
- A dentist or his or her dental hygienist
- A masseuse or chiropractor
- A therapist, psychiatrist, or psychologist
- Social workers or case managers
- Hospitals and medical clinics
- Medical office buildings or testing facilities
- Hospices or nursing homes
What matters for the accused is that he or she was taking care of the patient and that he or she was on duty when the injury occurred. Then the facility where the injury took place can also be called in on the lawsuit, which often increases what an injured party can receive if the accused is found guilty.
In the case of a failed medical device, there is also the manufacturer that can be called into court. This is a little more tricky to prove in court, however. It requires the injured party, or his or her attorney, to prove that the manufacturer made a problematic device. If the device failed because of other issues, the manufacturer might not be liable for any compensation to the plaintiff. It could be other issues that caused the failure, such as:
- An unskilled surgeon placed the device, which would make the case the doctor’s fault.
- The device was not properly updated, which could make the doctor at fault, but not always.
- The device did not get checked regularly to know that it needed replacement.
- The injured party neglected to update the device or tell the surgeon about symptoms of device failure, which would make the case at least partly the injured party’s fault.
These cases make an already complicated law even more confusing. Having an attorney can help make the case a lot simpler for everyone involved.
What Would a Medical Malpractice Lawyer Really Be Able to Bring to the Case?
Having a lawyer when battling against malpractice is huge. It not only allows the judge and the court system to take the case more seriously, but it also allows for the injured party to focus on what is most important, healing. Attorneys with experience make filing a malpractice lawsuit easier. They know how to be objective, not only with the injured party but also when in court. Plus, they can give a great estimate on what could happen with the case, simply because they have seen it before.
However, that is not all that an attorney could do to bolster a case of malpractice. He or she could also:
- Communication. Attorneys know how to talk. They get paid to do it. They know how to speak to the people in court in a simple enough way that anyone can understand the consequences of the injury. Plus, they also know when to communicate that something in the court proceedings is not right through objections. These nuances are typically lost on lay people or inexperienced attorneys.
- Focus. An attorney has one job, in essence. It is to win the case since that is what is in the best interest of his or her client. The attorney can focus on this, the deadlines, gathering evidence, and anything else that the case requires. It takes a lot of stress off the injured party.
- Clarification. Attorneys know who needs to come in and testify during malpractice cases, how to prove what the standard of care should have been, know what evidence will help prove substandard care, and more. They can make any case easier by knowing what to do almost instinctively.
- Peace. When someone gets injured unexpectedly, their life gets turned upside down. A once peaceful life is now full of worry and chaos. Not knowing where the money to pay the bills will come from is difficult. However, when an experienced attorney is hired, he or she can work to help calm the situation quickly.
On top of these benefits, experienced medical malpractice attorneys can also provide educated guesses on what the outcome of the case will be. They understand it because they have been there before. After hearing what happened and seeing what evidence is there now, he or she can give an idea if the case would likely go to trial or if the insurance company would want to settle. Plus, the attorney can also likely provide a guess as to what type of settlement the injured party, or his or her family, could expect.
How to Find the Most Effective Medical Malpractice Attorney or Law Firm to Work With
When the goal is to file a medical malpractice claim, then the best bet is to do so with the help of an experienced attorney. He or she will make the process go more smoothly than trying to figure out each step alone. To find an attorney that the injured party feels comfortable with, he or she should ask around. Talk to people who have used local attorneys or do a search online, such as Fargo North Dakota Medical Malpractice Lawyer. Reading through the reviews is a great place to start. Once a list is compiled, calls can then begin. Start by asking questions like:
- How busy is the attorney’s schedule? Is there enough time to file and take on the case?
- Can the attorney reiterate what happened to cause the injury in terms that are accurate and understandable?
- What types of payment arrangements does the attorney offer? When are the first payments due and what types of fees will the firm pick up?
- Who will be working on the case, only the attorney or some assistants and paralegals of the attorney as well? Who will be doing the most communication?
- What type of experience does the attorney have and how have past cases wound up when they were over?
- Is there a case, based on the early evidence?
- How long would it take to file the case and get it into court?
- Would a settlement or compensation at the end seem realistic with this case?
The more answers an injured party feels comfortable with, the better. It may not be just one or two phone calls to find the ideal attorney, but the time is worth it. It is also important to ask if the attorney will travel to a client, such as coming out to his or her Fargo home, or if the attorney would require the injured party to come in for depositions, paperwork signing, or something similar. This can help the injured party plan for what is coming.
What Job Does the Attorney Have?
The attorney has several jobs when it comes to the malpractice case. It starts with filing the initial paperwork. Then, it involves getting the Expert Affidavit. Evidence gathering is something that happens throughout the entire process and should include witness statements, videos or photos of the injury, medical records to show what was put into the chart, and any type of surveillance that shows the injury taking place. The attorney will also need to show up in court to represent the injured party on several occasions, and if it gets that far, also prosecute the accused. If a settlement is offered, the attorney will need to negotiate what is in the best interest of the injured party, and then talk back and forth with the injured party about how he or she wants to proceed. An attorney’s advice during the entire ordeal is imperative to the case’s success.
Filing a medical malpractice case in North Dakota takes a lot of time, expertise, and knowledge. It also requires a lot of evidence that can prove what the injured party is claiming, actually happened the way he or she said. Never try doing it alone. It is simply not a good idea, and at worst, it can result in the entire case being dismissed. If an injury happened due to the negligence or inappropriate action of a health care provider, it is important that the court sees what happened and does what it can to correct the problem.