North Dakota Medical Malpractice Complaint

COMPLAINT FOR MEDICAL NEGLIGENCE AND DEMAND FOR JURY TRIAL

STATE OF NORTH DAKOTA — DISTRICT COURT

[___________] JUDICIAL DISTRICT — COUNTY OF [_____________]

Case No.: [_______________]

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff [PLAINTIFF FULL LEGAL NAME], by and through undersigned counsel, brings this action against the above-named Defendants and for their Complaint alleges as follows:

I. INTRODUCTION

1. This is a civil action for damages arising out of medical negligence committed by Defendants in the course of providing medical care and treatment to Plaintiff at [HOSPITAL/CLINIC NAME] in [_______________] County, North Dakota, between approximately [__/__/____] and [__/__/____].

2. Defendants, individually and collectively, departed from the accepted standard of care of reasonably prudent health care providers in the same or similar circumstances, and their departures directly and proximately caused Plaintiff to suffer severe and permanent personal injuries, economic loss, and noneconomic damages as set forth herein.

3. This action is brought under North Dakota common law and the North Dakota Century Code, including N.D.C.C. ch. 28-01, ch. 32-03.2, and ch. 32-42. Plaintiff will serve the expert opinion affidavit required by N.D.C.C. § 28-01-46 within three (3) months of commencement of this action, or such later date as the Court permits for good cause shown.

II. PARTIES

4. Plaintiff [PLAINTIFF FULL LEGAL NAME] is, and at all times relevant hereto was, a competent adult resident of [_______________] County, [State], who received medical care from Defendants at the times and places described below.

5. Defendant [DEFENDANT PHYSICIAN, M.D.] is, and at all times relevant hereto was, a physician duly licensed to practice medicine in the State of North Dakota by the North Dakota Board of Medicine, license number [_______________], with a principal place of practice at [STREET ADDRESS], [CITY], [_______________] County, North Dakota [ZIP].

6. Defendant [DEFENDANT HOSPITAL/CLINIC ENTITY] is, and at all times relevant hereto was, a North Dakota [corporation / limited liability company / nonprofit corporation] organized under the laws of the State of North Dakota, with its principal place of business at [STREET ADDRESS], [CITY], [_______________] County, North Dakota [ZIP], and operating a [hospital / surgical center / clinic / long-term care facility] licensed by the North Dakota Department of Health and Human Services.

7. Defendant [DEFENDANT GROUP/PRACTICE ENTITY] is, and at all times relevant hereto was, a North Dakota [professional corporation / professional limited liability company] with its principal office at [STREET ADDRESS], [CITY], North Dakota [ZIP], that employed, contracted with, or held out Defendant [DEFENDANT PHYSICIAN] as its agent, employee, or apparent agent.

8. At all times relevant hereto, the individual Defendants were acting within the course and scope of their employment, agency, or apparent agency with the institutional Defendants, who are vicariously liable for the conduct of their employees, actual agents, and apparent agents under the doctrines of respondeat superior, agency, ostensible agency, and nondelegable duty.

III. JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction over this action pursuant to N.D. Const. art. VI, § 8 and N.D.C.C. § 27-05-06, as this is a civil action seeking damages in excess of the small claims threshold and within the general civil jurisdiction of the North Dakota District Courts.

10. This Court has personal jurisdiction over each Defendant because each Defendant resides, maintains a principal place of business, is licensed to practice, and/or transacted the business giving rise to this action within the State of North Dakota.

11. Venue is proper in [_______________] County under N.D.C.C. § 28-04-05 because the cause of action arose in [_______________] County, where the medical care and alleged negligent acts and omissions occurred, and/or where one or more Defendants resides or maintains a principal place of business.

IV. STATEMENT OF FACTS

12. On or about [__/__/____], Plaintiff [presented to / was admitted to / was seen by] [HOSPITAL/CLINIC NAME] for [REASON FOR ENCOUNTER — e.g., labor and delivery; chest pain evaluation; elective surgery; outpatient consultation].

13. Plaintiff's relevant medical history at the time of the encounter included [_______________________________________________].

14. On or about [__/__/____], Defendant [DEFENDANT PHYSICIAN] [examined / consulted / performed surgery upon / ordered treatment for] Plaintiff. Specifically, Defendant [DESCRIBE ACTS — e.g., performed a laparoscopic cholecystectomy; ordered IV heparin; failed to order a CT angiogram; failed to recognize signs of pulmonary embolism].

15. During the course of treatment, the following events occurred: [DESCRIBE CHRONOLOGICALLY — vital signs, lab values, imaging findings, nursing observations, deterioration, calls to physician, response times, and any failures to escalate or to act].

16. As a direct and proximate result of Defendants' acts and omissions, Plaintiff suffered [DESCRIBE INJURY — e.g., hypoxic brain injury; stroke; permanent organ damage; surgical complications requiring additional surgeries; sepsis; loss of limb; death].

17. Plaintiff's injuries are permanent and have resulted in ongoing physical impairment, cognitive impairment, pain and suffering, loss of enjoyment of life, disfigurement, future medical expenses, lost wages and lost earning capacity, and other damages as set forth in Section VII below.

V. STANDARD OF CARE AND BREACH

18. At all times relevant hereto, Defendants and each of them owed Plaintiff a duty to exercise that degree of care, skill, and learning ordinarily possessed and used by reasonably competent health care providers practicing in the same field of medicine in the State of North Dakota or in similar communities under the same or similar circumstances.

19. Defendant [DEFENDANT PHYSICIAN] breached the standard of care in one or more of the following non-exclusive respects:

a. Failing to obtain an adequate history and perform an adequate physical examination;

b. Failing to order, review, or properly interpret indicated diagnostic studies, including [SPECIFY — e.g., CT scan; MRI; echocardiogram; D-dimer; troponin];

c. Failing to timely diagnose [CONDITION] when reasonably prudent health care providers in the same circumstances would have done so;

d. Failing to recognize and respond to clinical signs of deterioration, including [SPECIFY — e.g., tachycardia; hypoxia; mental status changes];

e. Failing to obtain timely consultation with [SPECIALTY — e.g., cardiology; neurosurgery; vascular surgery];

f. Performing [PROCEDURE] without adequate informed consent and/or in a negligent manner that injured [STRUCTURE — e.g., the right innominate artery; the common bile duct];

g. Prescribing or administering [MEDICATION] in inappropriate dose, route, or circumstance, or in the face of a known contraindication;

h. Failing to order appropriate post-procedure monitoring;

i. Failing to communicate critical findings to Plaintiff and/or to other treating providers; and

j. Such other and further breaches as may be developed through discovery.

20. Defendant [DEFENDANT HOSPITAL/CLINIC ENTITY] breached the standard of care in one or more of the following non-exclusive respects:

a. Failing to adopt, implement, or enforce policies and procedures consistent with prevailing standards for [PROCEDURE/CONDITION];

b. Failing to ensure adequate nurse staffing, training, and supervision;

c. Failing to ensure that nursing staff timely recognized and reported signs of clinical deterioration through the chain of command;

d. Negligently credentialing, retaining, or supervising the individual Defendant(s); and

e. Such other and further breaches as may be developed through discovery.

21. The expert opinion affidavit required by N.D.C.C. § 28-01-46 will be served separately and within three (3) months of commencement of this action, except as to any "obvious occurrence" exception that may apply (e.g., wrong-site surgery, retained foreign object, or treatment of the wrong patient, organ, or limb).

VI. CAUSATION

22. Each of the breaches identified above, individually and collectively, was a direct and proximate cause of Plaintiff's injuries and damages.

23. Had Defendants complied with the applicable standard of care, Plaintiff's injuries either would not have occurred or would have been materially less severe, and Plaintiff would have had a better medical outcome to a reasonable degree of medical probability.

VII. DAMAGES

24. As a direct and proximate result of Defendants' negligence, Plaintiff has suffered and will continue to suffer the following damages, in amounts to be proven at trial:

a. Past medical, hospital, and rehabilitative expenses incurred for the diagnosis and treatment of injuries caused by Defendants' negligence;

b. Future medical, hospital, surgical, rehabilitative, attendant care, prescription medication, and assistive device expenses reasonably certain to be incurred over Plaintiff's lifetime;

c. Past lost earnings and earning capacity from the date of injury to the present;

d. Future lost earnings and impairment of earning capacity over Plaintiff's work-life expectancy;

e. Past and future physical pain and suffering, mental anguish, emotional distress, loss of enjoyment of life, disfigurement, and inconvenience (noneconomic damages, subject to the limitation in N.D.C.C. § 32-42-02 as applied);

f. Loss of consortium, society, comfort, and services to the extent recoverable under North Dakota law for any spouse, parent, or child plaintiff joined herein; and

g. Such other and further damages as the evidence at trial may establish and as the law permits.

25. Plaintiff acknowledges that under N.D.C.C. § 32-42-02 (as construed by Condon v. St. Alexius Medical Center, 2019 ND 113), the total amount of noneconomic damages recoverable in a health care malpractice action is limited to $500,000, and that the jury shall not be informed of the limitation. Plaintiff reserves all rights to challenge the application or constitutionality of any limitation as applied to the specific facts of this case under the federal and North Dakota Constitutions.

VIII. CAUSES OF ACTION

COUNT I — Medical Negligence (All Defendants)

26. Plaintiff incorporates by reference paragraphs 1 through 25 as though fully set forth herein.

27. Defendants owed Plaintiff a duty of care as set forth in paragraph 18, breached that duty as set forth in paragraphs 19 and 20, and proximately caused the damages set forth in paragraph 24.

28. Plaintiff is entitled to compensatory damages from Defendants, jointly to the extent permitted by N.D.C.C. § 32-03.2-02 and severally as to all other damages.

COUNT II — Vicarious Liability (Institutional Defendants)

29. Plaintiff incorporates by reference paragraphs 1 through 28 as though fully set forth herein.

30. At all times relevant hereto, Defendant [DEFENDANT PHYSICIAN] and other negligent providers were acting within the course and scope of their employment, actual agency, and/or apparent or ostensible agency with Defendants [DEFENDANT HOSPITAL/CLINIC ENTITY] and [DEFENDANT GROUP/PRACTICE ENTITY], each of whom is vicariously liable for the negligence of those individuals under the doctrines of respondeat superior, agency, apparent or ostensible agency, and nondelegable duty.

COUNT III — Negligent Credentialing, Hiring, Training, Supervision, and Retention (Institutional Defendants)

31. Plaintiff incorporates by reference paragraphs 1 through 30 as though fully set forth herein.

32. Defendants [DEFENDANT HOSPITAL/CLINIC ENTITY] and [DEFENDANT GROUP/PRACTICE ENTITY] negligently credentialed, hired, trained, supervised, and retained Defendant [DEFENDANT PHYSICIAN] and other personnel involved in Plaintiff's care, despite known or reasonably knowable indicators of inadequate competence, judgment, or fitness to practice.

COUNT IV — Lack of Informed Consent (As Applicable)

33. Plaintiff incorporates by reference paragraphs 1 through 32 as though fully set forth herein.

34. Defendant [DEFENDANT PHYSICIAN] failed to disclose material risks, benefits, alternatives, and reasonably foreseeable complications of [PROCEDURE/TREATMENT] that a reasonable patient in Plaintiff's position would have considered material to the decision whether to undergo the procedure or treatment, and Plaintiff would not have consented had such disclosures been made.

COUNT V — Loss of Consortium ([Spouse / Parent / Child], if joined)

35. Plaintiff incorporates by reference paragraphs 1 through 34 as though fully set forth herein.

36. As a direct and proximate result of the injuries sustained by [INJURED PLAINTIFF], [CONSORTIUM PLAINTIFF] has suffered and will continue to suffer loss of society, companionship, comfort, services, and consortium, in amounts to be proven at trial.

IX. AFFIRMATIVE AND PRESERVATION ALLEGATIONS

37. Plaintiff timely commenced this action within the two-year statute of limitations of N.D.C.C. § 28-01-18(3), measured from the date Plaintiff knew, or with reasonable diligence should have known, of the injury, its cause, and the possibility of Defendants' negligence, and within the six-year statute of repose, except that the repose period was extended by Defendants' fraudulent concealment, if applicable.

38. North Dakota's apology statute, N.D.C.C. § 31-04-12, provides that statements of apology, sympathy, condolence, or compassion by a health care provider to a patient or the patient's representative are inadmissible to prove liability and shall not be construed as admissions in this action.

39. North Dakota follows a modified comparative fault regime under N.D.C.C. § 32-03.2-02. Plaintiff is not at fault, or any fault of Plaintiff is less than the combined fault of Defendants, and recovery is therefore not barred. Plaintiff further pleads that, to the extent multiple defendants are found at fault, liability is several only as to those who did not act in concert, and joint as to any defendants found to have acted in concert.

40. Plaintiff reserves the right to amend this Complaint to add additional parties, claims, and theories as discovery proceeds, including punitive or exemplary damages under N.D.C.C. § 32-03.2-11 upon a sufficient evidentiary showing pursuant to N.D.C.C. § 32-03.2-11(2).

X. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court enter judgment in Plaintiff's favor and against Defendants, jointly and severally to the extent permitted by N.D.C.C. § 32-03.2-02 and severally as to all other damages, and award:

☐ A. Compensatory damages in an amount to be determined at trial, including past and future economic damages and noneconomic damages within the limits permitted by N.D.C.C. § 32-42-02;

☐ B. Pre-judgment and post-judgment interest at the rate permitted by N.D.C.C. § 28-20-34 and other applicable law;

☐ C. Costs and disbursements of this action as permitted by N.D.C.C. ch. 28-26 and N.D.R.Civ.P. 54;

☐ D. Reasonable attorney's fees to the extent authorized by statute or contract;

☐ E. Exemplary damages pursuant to N.D.C.C. § 32-03.2-11 upon proper motion and showing; and

☐ F. Such other and further relief as the Court deems just and equitable.

XI. DEMAND FOR JURY TRIAL

Pursuant to N.D.R.Civ.P. 38 and N.D. Const. art. I, § 13, Plaintiff demands a trial by jury of [six (6) / nine (9) / twelve (12)] persons on all issues so triable.

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

Respectfully submitted,

[LAW FIRM NAME]

By: _______________________________
[ATTORNEY NAME], ND Bar No. [_______]
[ATTORNEY NAME 2], ND Bar No. [_______]
[STREET ADDRESS]
[CITY], North Dakota [ZIP]
Telephone: ([___]) [___]-[____]
Email: [_______________@________]
Attorneys for Plaintiff [PLAINTIFF NAME]

VERIFICATION (Optional — N.D.R.Civ.P. 11)

STATE OF NORTH DAKOTA )
) ss.
COUNTY OF [__________] )

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I am the Plaintiff named in the foregoing Complaint; that I have read the Complaint; and that the factual allegations therein are true to the best of my knowledge, information, and belief.

_______________________________
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______________], [____].

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

Sources and References

• North Dakota Century Code, Title 28 (Judicial Procedure, Civil): https://ndlegis.gov/cencode/t28.html
• North Dakota Century Code, Title 32 (Judicial Remedies): https://ndlegis.gov/cencode/t32.html
• North Dakota Rules of Civil Procedure: https://www.ndcourts.gov/legal-resources/rules/ndrcivp
• Condon v. St. Alexius Medical Center, 2019 ND 113 (upholding $500,000 noneconomic damages cap under N.D.C.C. § 32-42-02 against equal-protection challenge): https://law.justia.com/cases/north-dakota/supreme-court/2019/20180297.html
• North Dakota Court System self-help: https://www.ndcourts.gov/legal-self-help