Sep 23, 2026
You did what your training and experience would lead you to do in exercising medical judgment for the patient. Your differential diagnosis was spot on. Your documentation passes muster. There can be no way your care could be subject to a medical malpractice lawsuit, right? Unfortunately, that is not the case. It is a myth that good care insulates a provider from a medical malpractice lawsuit. Quite often, physicians do not learn about medical malpractice lawsuits in medical school or during residency. When a medical malpractice lawsuit happens in practice, a feeling of isolation and belief that this experience only happens to “bad doctors” proliferates. This is also a myth. Good care and solid documentation reduce risk, but they do not immunize you from suit. The odds are that most practicing physicians will be involved in at least one claim or lawsuit of some kind in their practice, and sometimes more. Knowing North Dakota’s proof requirements, timelines, and potential litigation paths can help you effectively work with your counsel if a lawsuit arises.
A medical malpractice lawsuit involves a claim of medical negligence, otherwise known as malpractice. Examples of medical malpractice claims include a claim that a medical procedure was not properly performed; a claim that there was a misdiagnosis or untimely diagnosis; or a claim that the physician failed to obtain informed consent for the procedure. Generally, to prevail on a malpractice claim, the patient must show the medical standard of care, that the provider deviated from the standard of care, and that the deviation caused injury. The physician’s standard of care under law is described as the following:
In performing professional services, a physician has a duty to exercise such reasonable care, diligence, and skill as are ordinarily possessed, exercised by, and expected of physicians in the same general line of practice.
NDJI-Civil 14.10; see also Winkjer v. Herr, 277 N.W.2d 579 (ND 1979).
Importantly, North Dakota law recognizes that a bad result, by itself, does not mean there was medical negligence or malpractice. NDJI-Civil 14.30. This is a common misconception. Indeed, the patient needs to establish the medical malpractice claim through expert testimony. NDJI-Civil 14.00; N.D. Cent. Code § 28-01-46. In other words, a medical expert needs to testify regarding the physician’s standard of care, that there was a deviation in the standard of care, causation, and injury. Practically, this means contemporaneous documentation of your care, clinical reasoning, and informed consent are pivotal.
In North Dakota, a lawsuit begins when the patient serves a Summons and Complaint, asserting the claims of malpractice. A patient does not have an unlimited period of time to bring a lawsuit. Each state has a “statute of limitations” that limits the time in which a patient can bring a lawsuit. Under North Dakota law, generally, a patient has two years to bring a lawsuit from when the patient knows, or with reasonable diligence should know, of the injury, its cause, and the physician’s possible negligence. N.D. Cent. Code § 28-01-18(3); Schanilec v. Grand Forks Clinic, Ltd., 599 N.W.2d 253 (ND 1999). Exceptions exist to extend the limitations period, including for minors. N.D. Cent. Code § 28-01-25. North Dakota law also provides for an outer, or maximum, limit of six years from the time when care was provided with limited exception:
The following actions must be commenced within two years after the claim for relief has accrued . . . An action for the recovery of damages resulting from malpractice; provided, however, that the limitation of an action 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 . . . .
N.D. Cent. Code § 28-01-18(3) (emphasis added). This six-year outer limit is referred to as a “statute of repose” and has been upheld by the North Dakota Supreme Court to constitutional challenge. Hoffner v. Johnson, 2003 ND 79, 66 N.W.2d 909 (ND 2003).
After the Summons and Complaint have been served, you have 21 days to respond to the Complaint. In other words, after service, the 21-day response clock starts to run. It is imperative that you reach out to your risk manager, insurance carrier, and/or attorney at the earliest opportunity. A timely legal response will be required to the allegations, either by bringing a motion to dismiss the case if there is a legal basis to do, or by answering the Complaint through a pleading called an Answer. After pleadings, the case proceeds through the discovery phase with written exchanges between the parties and depositions taken under the procedural rules.
After a lawsuit has been brought, there are generally four paths that the case can take. Some cases are voluntarily dismissed by the patient without any settlement being paid, such as when a patient cannot find an expert to support his or her case. Some cases are resolved through settlement or mediation. Other cases may be appropriate for dismissal by the court on motion, such as when the statute of limitations or statute of repose are not met, or a qualified expert has not supported the patient’s case. Some cases involve a jury trial where the jury is asked to decide whether there was medical malpractice or not.
Even the most conscientious physicians can be named in a malpractice lawsuit, and most will encounter at least one claim or more over the course of a career. When this happens, do not assume that you are alone. Keep perspective and collaborate with your attorney to find the best path for your case.
This article does not constitute legal advice. As always, physicians and healthcare providers should consult with an experienced attorney regarding specific legal questions.
Angie E. Lord, Attorney