North Dakota Pre-Suit Medical Malpractice Framework (No NOI Required)

NORTH DAKOTA PRE-SUIT MEDICAL MALPRACTICE FRAMEWORK

PART A — STATUTE-OF-LIMITATIONS AND REPOSE WORKSHEET

Client / Matter: [PLAINTIFF NAME] v. [PROVIDER NAME(S)]
Date of Alleged Negligence: [__/__/____]
Date Plaintiff Knew or Should Have Known of Injury, Cause, and Possible Negligence: [__/__/____]
Plaintiff's Date of Birth: [__/__/____]

☐ Calendar all dates in two independent systems (firm calendar + paper docket).
☐ File 30 days before earliest deadline whenever feasible.
☐ Confirm "commencement" under N.D.R.Civ.P. 3 = service of summons (NOT filing).

PART B — RECORDS COLLECTION AND HIPAA AUTHORIZATION

B1. Master Records Request List

☐ Index all known providers (institutional + individual) involved before, during, and after the alleged negligence.
☐ Request complete medical records, billing records, and audit trails / metadata from each.
☐ Request hospital policies and procedures relevant to the events.
☐ Request credentialing files (typically requires litigation discovery).
☐ Request EMS records if pre-hospital care implicated.
☐ Request pharmacy / pharmacy benefit manager records.
☐ Request long-term care, rehabilitation, and home-health records.

B2. HIPAA-Compliant Authorization

[See Section B3 below for the standalone authorization template.]

B3. AUTHORIZATION FOR USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION

I, [PATIENT FULL LEGAL NAME], date of birth [__/__/____], hereby authorize:

[PROVIDER NAME]
[STREET ADDRESS]
[CITY], [STATE] [ZIP]

to use and disclose my protected health information ("PHI") to:

[REQUESTING PARTY — Law Firm Name]
[STREET ADDRESS]
[CITY], [STATE] [ZIP]

Description of PHI to be disclosed: Complete medical, billing, diagnostic-imaging, pharmacy, laboratory, pathology, nursing, mental-health (to the extent permitted), and audit-trail / metadata records relating to my care from [__/__/____] through [__/__/____], including but not limited to admission and discharge records, progress notes, operative reports, anesthesia records, medication administration records, vital-sign flowsheets, telephone-order logs, pages and call-back logs, and electronic health record audit trails.

Purpose of Disclosure: Investigation and prosecution of potential legal claims arising from medical care.

Expiration: This authorization expires [__/__/____] or upon written revocation.

Right to Revoke: I may revoke this authorization at any time in writing, except to the extent the provider has acted in reliance on it. To revoke, send written notice to the provider above.

Re-disclosure Notice: I understand information disclosed may be re-disclosed by the recipient and may no longer be protected by federal HIPAA regulations.

Signature:

_______________________________ Date: [__/__/____]
[PATIENT NAME]

_______________________________ Date: [__/__/____]
[Personal Representative / Guardian, if applicable] — Authority: [_______________]

PART C — ANTI-SPOLIATION / LITIGATION-HOLD DEMAND LETTER

[LAW FIRM LETTERHEAD]

[__/__/____]

SENT VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED
AND VIA EMAIL TO RISK MANAGEMENT

[CHIEF EXECUTIVE OFFICER / GENERAL COUNSEL / RISK MANAGER]
[HOSPITAL/CLINIC ENTITY NAME]
[STREET ADDRESS]
[CITY], North Dakota [ZIP]

Re: Patient: [PATIENT NAME] — DOB [__/__/____] — MRN [_______________]
Dates of Care: [__/__/____] through [__/__/____]
DEMAND FOR PRESERVATION OF EVIDENCE — LITIGATION HOLD

Dear [TITLE]:

This firm represents [PATIENT NAME / DECEDENT'S ESTATE] in connection with the medical care provided at your facility on the dates referenced above. Litigation arising from this care is reasonably anticipated.

You and your facility are now under an affirmative duty to preserve all evidence, paper and electronic, that may be relevant to this matter. Spoliation of evidence may give rise to evidentiary sanctions and adverse-inference instructions under North Dakota law, including N.D.R.Civ.P. 37.

Items to be preserved include, without limitation:

1. The complete medical, billing, and pharmacy records of the above patient, in both paper and electronic form, including all metadata, audit trails, and any prior versions or amendments.

2. All electronic health record (EHR) system data related to the patient, including login records, screen-print logs, time-stamps for each chart entry, and identification of every user who viewed, edited, or printed any portion of the chart.

3. All diagnostic imaging studies (DICOM files) and reports, in original form.

4. All telemetry, pulse-oximetry, fetal monitoring, ventilator, infusion pump, and other device data exported or recorded during the patient's care.

5. All policies and procedures in effect at the times of care, including but not limited to: chain-of-command policies; rapid-response team policies; pulmonary-embolism / DVT prophylaxis protocols; informed-consent policies; medication administration policies; surgical time-out and site-marking policies; nursing-staffing policies; and any clinical guidelines for [SPECIFY CONDITION/PROCEDURE].

6. All staff-scheduling, time-clock, and payroll records identifying every employee, contractor, resident, fellow, student, and volunteer who participated in the patient's care.

7. All incident reports, occurrence reports, root-cause analyses, peer-review materials, morbidity and mortality conference materials, and quality-improvement materials related to the patient's care, to the extent any of the foregoing exists.

8. All physical evidence, including any explanted devices, tissue specimens, surgical instruments associated with the procedure, biopsy specimens, and packaging or labels of medications administered.

9. All photographs and videographic evidence, including OR cameras, anesthesia-monitor screen captures, and any recordings.

10. All correspondence, emails, text messages, and other communications between staff members or with the patient or family relating to the care at issue.

Auto-deletion programs, document-destruction schedules, and routine record-purging must be suspended immediately as to the foregoing categories. Please confirm in writing within fourteen (14) days that a litigation hold has been issued and that the items above have been preserved.

The information requested is sought solely for the investigation and resolution of the above-referenced matter, and not for any improper purpose. Nothing in this letter constitutes a waiver of any applicable privilege, immunity, or defense, and nothing in this letter is intended to be, or should be construed as, a notice of intent to sue under any state's laws — North Dakota does not require such a notice.

Sincerely,

[ATTORNEY NAME], ND Bar No. [_______]
[LAW FIRM NAME]
[ADDRESS] · [PHONE] · [EMAIL]

cc: [DEFENDANT INSURER, if known]
[INDIVIDUAL PROVIDER(S)]

PART D — PRE-SUIT SETTLEMENT / DEMAND LETTER

[LAW FIRM LETTERHEAD]

[__/__/____]

SENT VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED
FRE 408 / N.D.R.Ev. 408 — INADMISSIBLE COMPROMISE COMMUNICATION

[CLAIMS DIRECTOR]
[INSURER NAME]
[STREET ADDRESS]
[CITY], [STATE] [ZIP]

[INSURED PROVIDER]
[STREET ADDRESS]
[CITY], North Dakota [ZIP]

Re: Claimant: [PATIENT NAME / DECEDENT]
Insured: [PROVIDER NAME]
Date of Loss: [__/__/____]
Policy No.: [_______________]
Claim No.: [_______________]
PRE-SUIT DEMAND FOR SETTLEMENT

Dear [CLAIMS DIRECTOR]:

This firm represents [CLAIMANT NAME] in connection with the medical care described below. We submit this demand under N.D.R.Ev. 408 for purposes of compromise and settlement; it is not admissible to prove liability or the value of any claim.

1. Liability

On [__/__/____], [CLAIMANT NAME] was [DESCRIBE CARE — e.g., admitted to St. Alexius Medical Center for postpartum recovery / underwent elective laparoscopic cholecystectomy at Sanford Fargo / presented to the emergency department of [HOSPITAL] complaining of [SYMPTOMS]].

[Concise factual narrative — 3 to 5 paragraphs — detailing the standard of care, the breach, and the resulting injury. Tie each breach to a specific page of the medical record.]

We have retained [a qualified expert in [SPECIALTY] / multiple qualified experts] who has [/have] reviewed the records and is [/are] prepared to provide an opinion satisfying N.D.C.C. § 28-01-46 supporting (a) the applicable standard of care, (b) the deviation from that standard by [PROVIDER(S)], and (c) the causal relationship between the deviation and our client's injuries.

2. Damages

We acknowledge that under N.D.C.C. § 32-42-02, as construed in Condon v. St. Alexius Medical Center, 2019 ND 113, the noneconomic-damages component of any judgment in a health care malpractice action is statutorily capped at $500,000. Economic damages, including past and future medical and wage components, are NOT subject to that cap. Our client reserves the right to challenge the cap as applied.

3. Demand

In full and final settlement of all claims of [CLAIMANT] against [PROVIDER(S)] arising out of the care described above, our client demands the sum of:

$[____________]

This demand will remain open for thirty (30) days from the date of this letter. If we do not receive a substantive written response by [__/__/____], we are authorized to commence suit. Please be advised that under North Dakota's modified comparative-fault and several-liability regime, N.D.C.C. § 32-03.2-02, your insured will be exposed to its proportionate share of fault.

We further note that statements of apology, sympathy, or condolence by your insured are inadmissible under N.D.C.C. § 31-04-12. Acknowledging the harm caused to our client, however, may facilitate resolution.

Please direct all responses to the undersigned. We are willing to participate in mediation under N.D.C.C. ch. 32-42 at any time prior to or during litigation.

Very truly yours,

[ATTORNEY NAME], ND Bar No. [_______]
[LAW FIRM NAME]
[ADDRESS] · [PHONE] · [EMAIL]

Enclosures: ☐ Medical Authorization (signed)
☐ Itemized Special Damages
☐ Wage-Loss Documentation
☐ Life-Care Plan (if available)
☐ Photographs / Imaging (if available)

PART E — NOTICE OF CLAIM AGAINST STATE-ACTOR PROVIDER (N.D.C.C. § 32-12.2-04)

[LAW FIRM LETTERHEAD]

[__/__/____]

SENT VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

Director, Office of Management and Budget
Risk Management Division
600 East Boulevard Avenue, Department 110
Bismarck, ND 58505-0400

Office of the Attorney General
State Capitol — 600 E. Boulevard Avenue, Dept. 125
Bismarck, ND 58505-0040

Re: NOTICE OF CLAIM PURSUANT TO N.D.C.C. § 32-12.2-04
Claimant: [CLAIMANT NAME] — DOB [__/__/____]
State Employee(s): [NAME], [TITLE], [DEPARTMENT/INSTITUTION]
Date of Injury: [__/__/____]

Pursuant to N.D.C.C. § 32-12.2-04, the undersigned, as counsel for the above-named Claimant, hereby provides notice of a claim against the State of North Dakota for personal injury arising from the negligent acts and omissions of the above-identified state employee(s) during the course and scope of state employment.

1. Time, Place, and Circumstances of the Injury. On [__/__/____], at [LOCATION], [CONCISE FACTUAL DESCRIPTION].

2. Names of State Employees Involved. [LIST WITH TITLES AND DEPARTMENTS].

3. Nature and Extent of Injury. [DESCRIBE INJURY].

4. Amount of Damages Claimed. $[____________], subject to the limits of N.D.C.C. § 32-12.2-02.

5. Claimant Information. [NAME, ADDRESS, PHONE, EMAIL].

This notice is served within 180 days after the alleged injury, as required by N.D.C.C. § 32-12.2-04. The Claimant reserves all rights under federal and state law, and nothing herein shall be construed as a waiver of any claim, theory, or remedy.

Very truly yours,

[ATTORNEY NAME], ND Bar No. [_______]

PART F — MEDIATION / ADR CONSIDERATION (N.D.C.C. ch. 32-42)

☐ Determine whether the parties are willing to mediate before filing suit.
☐ Identify a North Dakota mediator with medical-negligence experience (e.g., retired ND district court judges; mediators credentialed through the North Dakota Mediation Association).
☐ Document any agreement to mediate, including allocation of mediator fees and confidentiality protections under N.D.R.Ev. 408 and any mediation agreement.
☐ Confirm tolling-agreement language if mediation will extend beyond an SOL trigger date.

ATTORNEY PRE-SUIT CHECKLIST

☐ Confirm 2-year SOL and 6-year repose; document discovery date.
☐ Confirm minor / disability tolling, if any.
☐ Retain qualified expert; obtain preliminary written opinion sufficient for § 28-01-46 affidavit.
☐ Issue HIPAA-compliant records requests to ALL known providers.
☐ Send anti-spoliation letter to each named or anticipated institutional defendant.
☐ Identify ALL potential defendants: physicians, residents, nurses, hospitals, clinics, employers, manufacturers (devices/drugs), and any state actors.
☐ For state actors: serve § 32-12.2-04 notice within 180 days; confirm immunity analysis.
☐ Send pre-suit FRE 408 demand letter (optional but recommended).
☐ Calendar 3-month § 28-01-46 affidavit deadline upon commencement.
☐ Confirm proper venue under N.D.C.C. § 28-04-05.
☐ Evaluate consortium, wrongful-death, and survival components.
☐ Calculate noneconomic-cap exposure under § 32-42-02 and Condon.
☐ Document fee agreement; confirm contingent-fee compliance with N.D.R. Prof. Conduct 1.5.

Sources and References

• N.D.C.C. § 28-01-18 (statute of limitations): https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-18.html
• N.D.C.C. § 28-01-46 (expert opinion affidavit): https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-46.html
• N.D.C.C. ch. 32-42 (Alternative Dispute Resolution and noneconomic cap): https://ndlegis.gov/cencode/t32c42.html
• N.D.C.C. ch. 32-12.2 (Claims against the State): https://ndlegis.gov/cencode/t32c12-2.pdf
• N.D.C.C. § 32-03.2-02 (modified comparative fault, several liability): https://codes.findlaw.com/nd/title-32-judicial-remedies/nd-cent-code-sect-32-03-2-02/
• Condon v. St. Alexius Medical Center, 2019 ND 113: https://law.justia.com/cases/north-dakota/supreme-court/2019/20180297.html
• North Dakota Court System — Rules of Civil Procedure: https://www.ndcourts.gov/legal-resources/rules/ndrcivp