North Dakota Expert Opinion Affidavit (Certificate of Merit)

EXPERT OPINION AFFIDAVIT PURSUANT TO N.D.C.C. § 28-01-46

STATE OF NORTH DAKOTA — DISTRICT COURT

[___________] JUDICIAL DISTRICT — COUNTY OF [_____________]

Case No.: [_______________]

EXPERT OPINION AFFIDAVIT PURSUANT TO N.D.C.C. § 28-01-46

STATE OF [_______________] )
) ss.
COUNTY OF [_______________] )

[EXPERT FULL NAME], [DEGREE — e.g., M.D., D.O., R.N., P.A.], being first duly sworn upon oath, deposes and states as follows:

I. IDENTIFICATION OF EXPERT (N.D.C.C. § 28-01-46)

1. Name. I am [EXPERT FULL NAME], [DEGREE].

2. Business Address. My business address is:

[EMPLOYER / INSTITUTION NAME]
[STREET ADDRESS]
[CITY], [STATE] [ZIP]
Telephone: ([___]) [___]-[____]

3. Field of Expertise. My field of expertise is [SPECIFY — e.g., obstetrics and gynecology; cardiothoracic surgery; emergency medicine; internal medicine — hospitalist; vascular surgery; anesthesiology; nursing — critical care; nursing — labor and delivery]. I am [board-certified / board-eligible] in [SPECIFY] by the [American Board of [_______________] / equivalent].

II. QUALIFICATIONS

4. I received my [degree — M.D./D.O./B.S.N./etc.] from [INSTITUTION] in [YEAR].

5. I completed my [residency / fellowship / clinical training] in [SPECIALTY] at [INSTITUTION] in [YEAR], and additional [fellowship / specialty training] in [SUBSPECIALTY] at [INSTITUTION] in [YEAR].

6. I have been licensed to practice [medicine / nursing / etc.] in the State of [_______________] since [YEAR], license number [_______________]. I am also licensed in [LIST OTHER STATES, IF ANY].

7. I have practiced [SPECIALTY] for [____] years. During the preceding five (5) years, I have devoted a substantial portion of my professional time to the active clinical practice of [SPECIALTY] and/or to the instruction of students in an accredited residency, fellowship, or other graduate medical or nursing education program in this same field.

8. I am familiar with the standard of care applicable to [physicians / nurses / hospitals] practicing in the field of [SPECIALTY] in North Dakota and in similar communities, as that standard existed on or about [__/__/____] (the date of the alleged negligence).

9. A current copy of my curriculum vitae, including a list of all publications, prior testimony, and professional affiliations, is attached hereto as Exhibit A and incorporated by reference.

III. MATERIALS REVIEWED

10. In forming the opinions set forth below, I have reviewed the following materials:

a. The complete medical records of [PLAINTIFF NAME] from [HOSPITAL/CLINIC], for the period [__/__/____] through [__/__/____], including but not limited to:

• Admission history and physical;
• Progress notes (physician and nursing);
• Operative reports for procedures performed on [__/__/____];
• Anesthesia records;
• Laboratory and pathology results;
• Diagnostic imaging studies and reports (radiology, CT, MRI, ultrasound, etc.);
• Medication administration records (MARs);
• Discharge summaries;
• Consultation notes from [SPECIALTIES]; and
• Subsequent treatment records from [PROVIDERS].

b. Plaintiff's deposition transcript (if available);

c. Pertinent peer-reviewed medical literature, clinical practice guidelines, and standards from [LIST — e.g., American College of Obstetricians and Gynecologists; Society of Critical Care Medicine; American Heart Association; Joint Commission];

d. Applicable hospital policies and procedures, to the extent available; and

e. Such other materials as identified in Exhibit B hereto.

11. The materials I reviewed are of the type customarily relied upon by experts in my field in forming opinions on standard of care, breach, and causation.

IV. APPLICABLE STANDARD OF CARE

12. On or about [__/__/____], the applicable standard of care required a reasonably prudent [physician practicing in the field of [SPECIALTY] / nurse practicing in the area of [AREA] / hospital] in the same or similar circumstances to:

a. [STANDARD STATEMENT 1 — e.g., obtain an immediate spiral CT or D-dimer for a postpartum patient presenting with new-onset chest discomfort, dyspnea, and tachycardia, in order to evaluate for pulmonary embolism];

b. [STANDARD STATEMENT 2 — e.g., recognize critical changes in vital signs and notify the attending physician within [____] minutes];

c. [STANDARD STATEMENT 3 — e.g., perform a [PROCEDURE] using [TECHNIQUE] with appropriate identification and protection of [ANATOMIC STRUCTURE]];

d. [STANDARD STATEMENT 4 — e.g., obtain consultation from [SPECIALTY] when the patient's presentation includes [SIGNS/SYMPTOMS]];

e. [STANDARD STATEMENT 5 — e.g., adopt and enforce a chain-of-command policy that ensures nursing concerns about deteriorating patients reach the attending physician and, if necessary, the on-call supervisor]; and

f. [ADDITIONAL STANDARD STATEMENTS AS APPLICABLE].

13. The above standards are well-established, are reflected in the contemporaneous peer-reviewed literature and clinical practice guidelines in effect on [__/__/____], and are taught in accredited [SPECIALTY] residency and fellowship programs nationally, including in North Dakota and in similar communities.

V. BREACH OF STANDARD OF CARE

14. Based upon my review of the materials identified above, and to a reasonable degree of medical [or nursing] probability, it is my opinion that Defendant [DEFENDANT PHYSICIAN, M.D.] violated the applicable standard of care in the following respects:

a. [BREACH 1 — e.g., failing to order a CT pulmonary angiogram despite Plaintiff's classic presentation for postpartum pulmonary embolism];

b. [BREACH 2 — e.g., failing to recognize and respond to a documented oxygen saturation drop to 86% on room air];

c. [BREACH 3 — e.g., performing the mediastinoscopy without first identifying the right innominate artery and proceeding to biopsy in a manner that lacerated the vessel];

d. [BREACH 4 — e.g., failing to obtain timely vascular surgery consultation when intraoperative bleeding was encountered]; and

e. [ADDITIONAL BREACHES AS APPLICABLE].

15. It is also my opinion that Defendant [DEFENDANT HOSPITAL/CLINIC ENTITY], through its nurses, technicians, residents, and/or institutional policies, violated the applicable standard of care in the following respects:

a. [INSTITUTIONAL BREACH 1 — e.g., failing to ensure that nursing staff escalated abnormal vital signs through the chain of command];

b. [INSTITUTIONAL BREACH 2 — e.g., failing to maintain a functioning rapid-response team protocol]; and

c. [ADDITIONAL INSTITUTIONAL BREACHES AS APPLICABLE].

VI. CAUSATION

16. To a reasonable degree of medical [or nursing] probability, it is my opinion that the breaches of the standard of care identified above directly and proximately caused or substantially contributed to Plaintiff's injuries, including:

a. [INJURY 1 — e.g., the right innominate artery laceration and resulting hemorrhagic shock];

b. [INJURY 2 — e.g., the cerebrovascular accident (stroke) and resulting permanent neurologic deficits];

c. [INJURY 3 — e.g., the prolonged hospitalization, additional surgeries, and rehabilitation];

d. [INJURY 4 — e.g., the permanent functional impairment, pain, and disability]; and

e. [ADDITIONAL INJURIES AS APPLICABLE].

17. Had Defendants complied with the applicable standard of care, Plaintiff would, to a reasonable degree of medical probability, have avoided the above injuries or experienced a materially less severe outcome.

VII. PRIMA FACIE CASE

18. Based on the foregoing, Plaintiff has, in my professional opinion, an admissible expert opinion supporting a prima facie case of professional negligence against the named Defendants under N.D.C.C. § 28-01-46.

19. The opinions expressed herein are preliminary, are based upon the materials currently available to me, and are subject to amendment, supplementation, or refinement as additional information is produced through discovery, including depositions, additional medical records, and any expert reports tendered by Defendants.

VIII. COMPENSATION AND DISCLOSURES

20. I am being compensated for the time spent reviewing materials and forming the opinions stated herein at the rate of $[____] per hour for record review and report preparation, and $[____] per hour for deposition and trial testimony. My compensation is not contingent on the content of my opinions or the outcome of this action.

21. Within the preceding four (4) years, I have testified as an expert witness at trial or by deposition in the matters listed in Exhibit C hereto.

IX. AFFIRMATION

22. I declare under penalty of perjury under the laws of the State of North Dakota that the foregoing is true and correct.

FURTHER AFFIANT SAYETH NAUGHT.

Dated this [____] day of [_______________], [____].

_______________________________
[EXPERT FULL NAME], [DEGREE]

ACKNOWLEDGMENT

STATE OF [_______________] )
) ss.
COUNTY OF [_______________] )

Subscribed and sworn to before me by [EXPERT FULL NAME], [DEGREE], this [____] day of [_______________], [____].

_______________________________
Notary Public
My commission expires: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [_______________], [____], a true and correct copy of the foregoing Expert Opinion Affidavit Pursuant to N.D.C.C. § 28-01-46 was served upon the following counsel of record by [☐ first-class mail / ☐ email / ☐ Odyssey eFiling / ☐ personal service]:

[OPPOSING COUNSEL NAME]
[FIRM NAME]
[ADDRESS]
[EMAIL]

_______________________________
[ATTORNEY NAME], ND Bar No. [_______]
Attorney for Plaintiff

EXHIBITS

• Exhibit A — Curriculum Vitae of [EXPERT NAME]
• Exhibit B — Index of Materials Reviewed
• Exhibit C — Four-Year Testimony List (Trial and Deposition)

ATTORNEY COMPLIANCE NOTES — N.D.C.C. § 28-01-46

Sources and References

• N.D.C.C. § 28-01-46: https://ndlegis.gov/cencode/t28c01.pdf
• N.D.C.C. § 28-01-46.1 (definitions): https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-46-1.html
• North Dakota Rules of Civil Procedure: https://www.ndcourts.gov/legal-resources/rules/ndrcivp
• NCSL summary of merit-affidavit requirements: https://www.ncsl.org/financial-services/medical-liability-malpractice-merit-affidavits-and-expert-witnesses