Malpractice

Weigel v. Lee , 2008 ND 147,
A decedent's children are able to seek recovery of non-economic damages in a wrongful death action.
White v. Altru Health System , 2008 ND 48, 746 N.W.2d 173
The medical malpractice statute in effect at the time of injury applies.
Scheer v. Altru Health System , 2007 ND 104, 734 N.W.2d 778
A dismissal without prejudice is ordinarily not appealable; however, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.
North Dakota's medical malpractice law requires a plaintiff to serve the defendant with an admissible expert affidavit that supports a prima facie case of malpractice within three months of serving the summons.
The trial court may set a later date for serving the affidavit for good cause shown by the plaintiff.
The trial court must dismiss the case without prejudice, on motion by the defendant, for a plaintiff's failure to timely serve the affidavit or move for good cause.
A plaintiff may move for good cause as late as in response to the defendant's motion to dismiss.
Chamley v. Khokha , 2007 ND 69, 730 N.W.2d 864
Any person rendering aid or assistance with an expectation of remuneration is not protected by North Dakota's Good Samaritan Act.
A doctor who is a salaried employee of a hospital and performs a procedure in the hospital has an expectation of remuneration.
Ballensky v. Flattum-Riemers , 2006 ND 127, 716 N.W.2d 110
A defendant's demand to file a complaint is personal to the demanding defendant, and a plaintiff's failure to file the complaint after a demand does not void the service of the summons as to other defendants.
The amount of damages is a question of fact, and a victim need not establish economic damages before noneconomic damages can be awarded.
A physician is immune from liability for making a good faith report that the physician treated a person for an injury sustained in a motor vehicle accident if the physician has reasonable cause to suspect the injury was inflicted in violation of any criminal law, including driving under the influence of illegal drugs.
Carpenter v. Rohrer , 2006 ND 111, 714 N.W.2d 804
An appellant must provide a transcript sufficient to allow a meaningful and intelligent review of the alleged errors and assumes the consequences for the failure to file a complete transcript.
Special jury verdicts are upheld whenever possible and set aside only if it is shown they were perverse and clearly contrary to the evidence.
A witness's qualification to testify as an expert is left to the sound discretion of the trial court and is not reversed on appeal absent an abuse of discretion.
Hopfauf v. Hieb , 2006 ND 72, 712 N.W.2d 333
Summary judgment is properly granted if the information available to the trial court precluded the existence of a genuine issue of material fact, entitling the moving party to summary judgment as a matter of law.
A district court's denial of a request for additional time for discovery under N.D.R.Civ.P. 56(f) is not overturned on appeal absent an abuse of discretion.
An element of negligent failure to obtain informed consent, as in any negligence action, is the existence and extent of a duty. A duty to disclose can only arise if the physician knew or should have known of the risks to be disclosed.
Davis v. Killu , 2006 ND 32, 710 N.W.2d 118
An expert's testimony may not be used merely as a conduit to place otherwise inadmissible evidence before a jury.
Parties are required to create a record that will permit informed appellate review.
Nonprejudical mistakes by the trial court constitute harmless error and are not grounds for reversal.
A failure to object acts as a waiver of the claim of error.
Long v. Jaszczak , 2004 ND 194, 688 N.W.2d 173
For purposes of the statute of limitations, an action commences when the summons, with the intent it shall be served, is delivered to the sheriff or officer of the county where the defendant resides.
A primary physician, ordering a diagnostic procedure to further a patient's care, has a legal duty to obtain the patient's informed consent.
Generally, in cases of informed consent, materiality of risk and causation are questions for the trier of fact.
Expert testimony is not required to prove whether a reasonable patient would attach significance to a particular risk.
A hospital does not owe a legal duty to obtain its patients' informed consent, it is a physician's responsibility.
Riemers v. Omdahl , 2004 ND 188, 687 N.W.2d 445
In a legal malpractice action, the statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
In a legal malpractice action, the continuous representation rule tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.
Minn-Kota Ag Products, Inc. v. Carlson , 2004 ND 145, 684 N.W.2d 60
Issues of fact may become questions of law if a reasonable person could reach only one conclusion from the facts.
Mere speculation is not enough to defeat a motion for summary judgment. There must be enough evidence for a reasonable jury to find for the plaintiff.
An attorney has not committed legal malpractice by failing to file a cause of action when the statute of limitations expires before the attorney is retained.
Haley v. Dennis , 2004 ND 96, 679 N.W.2d 263
A jury verdict that assesses a percentage of fault to the defendant after finding the defendant was not negligent is an inconsistent and irreconcilable verdict.
When the jury during deliberations requests additional instruction on a substantive point of law, the court must notify the parties or counsel before responding to the jury's request.
Lawrence v. Roberdeau , 2003 ND 124, 665 N.W.2d 719
Witness immunity bars a suit challenging a witness's testimony.
A state employee is not personally liable for money damages in a negligence case when the injury is proximately caused by the employee acting within the scope of employment.
Van Klootwyk v. Baptist Home , 2003 ND 112, 665 N.W.2d 679
The three-month period for providing an admissible expert opinion under N.D.C.C. 28-01-46 applies only when a lawsuit based upon professional negligence is brought against a physician, nurse, or hospital, not a nursing home.
Holman v. Berglund , 2003 ND 103, 664 N.W.2d 516
Dismissal of a malpractice claim is summarily affirmed under N.D.R.App.P. 35.1(a)(7). Dismissal of a lack of informed consent claim is summarily reversed under N.D.R.App.P. 35.1(b).
Haugenoe v. Bambrick , 2003 ND 92, 663 N.W.2d 175
If, in a medical malpractice case, the alleged malpractice is beyond the understanding of a layperson, an expert opinion must be obtained within three months of the commencement of the action to support the allegation of medical malpractice.
Issues not briefed by an appellant are deemed abandoned.
The requirement of obtaining an expert opinion within three months of the commencement of a medical malpractice action does not apply to informed consent claims.
Hoffner v. Johnson , 2003 ND 79, 660 N.W.2d 909
The six-year statute of repose for medical malpractice actions under N.D.C.C. 28-01-18(3) does not violate equal protection.
For equitable estoppel precluding application of a statute of limitation or repose, the plaintiff must show affirmative deception by the defendant.
Koapke v. Herfendal , 2003 ND 64, 660 N.W.2d 206
A referring physician does not have a duty to obtain a patient's informed consent unless the referring physician formally prescribed or performed the procedure.
Retaining a "degree of participation" in the treatment plan associated with a surgery is not enough to create liability on the part of the referring physician.
Jaskoviak v. Gruver , 2002 ND 1, 638 N.W.2d 1
Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely.
Generally, an integral part of the physician's overall obligation to the patient is the duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each.
In an informed consent case, expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.
Estate of Murphy v. Maus , 2001 ND 87, 626 N.W.2d 281
To prevail in a legal malpractice action, a plaintiff must establish the attorney's malpractice proximately caused damage to the plaintiff.
Greenwood v. Paracelsus Health Care , 2001 ND 28, 622 N.W.2d 195
Section 28-01-46, N.D.C.C., which requires an affidavit of an expert to support an allegation of medical malpractice, does not apply once the trial has begun.
To establish a prima facie case of medical malpractice, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the alleged harm.
A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician.
Dan Nelson Construction v. Nodland & Dickson , 2000 ND 61, 608 N.W.2d 267
In a legal malpractice action based on an attorney's alleged negligent failure to appeal, both the merits and probable outcome of the appeal are questions of law and subject to summary judgment.
A government construction contract's requirement for prompt written notice of changed conditions is to permit early investigation and informed decision making.
A "changed conditions" clause is interpreted based on what the contractor knew, or should have known, under the circumstances.
Hamilton v. Johnson , 1999 ND 208, 606 N.W.2d 137
Summary judgment summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Richard B. Baer, P.C. v. Bauch , 1999 ND 177, 599 N.W.2d 306
A trial court may dismiss a party's counterclaim when the party shows a pattern of deliberate indifference to the discovery rules and court orders.
Schanilec v. Grand Forks Clinic, Ltd. , 1999 ND 165, 599 N.W.2d 253
The two-year statute of limitations for bringing a medical malpractice action does not begin to run in a misdiagnosis case until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant's possible negligence.
Larson v. Hetland , 1999 ND 98, 593 N.W.2d 785
A plaintiff in a medical malpractice action must obtain an expert opinion supporting the allegations of professional negligence within three months of commencement of the lawsuit, otherwise the trial court, within its discretion, may dismiss the lawsuit.
Ali v. Dakota Clinic , 1998 ND 145, 582 N.W.2d 653
Trial court's denial of a motion for a new trial is appropriate where the movant is unable to show the inappropriate comments made by opposing counsel during closing argument prejudiced the jury.
Duncklee, fka Mack v. Wills , 542 N.W.2d 739 (N.D. 1996)
Reems v. St. Joseph's Hospital , 536 N.W.2d 666 (N.D. 1995)
Jacobsen v. Haugen , 529 N.W.2d 882 (N.D. 1995)
Dohman v. Antonenko , 537 N.W.2d 365 (N.D. 1995)
Patterson v. Hutchens , 529 N.W.2d 561 (N.D. 1995)
Beilke v. Coryell and St. Luke's Hospital of Fargo , 524 N.W.2d 607 (N.D. 1994)
Bye v. Mack , 519 N.W.2d 302 (N.D. 1994)
Zettel v. Licht , 518 N.W.2d 214 (N.D. 1994)
Kunnanz v. Edge , 515 N.W.2d 167 (N.D. 1994)
Copenhaver v. Geier , 508 N.W.2d 877 (N.D. 1993)
Sabot v. Fargo Women's Health Organization , 500 N.W.2d 889 (N.D. 1993)
Ellefson v. Earnshaw , 499 N.W.2d 112 (N.D. 1993)
Larsen v. Zarrett , 498 N.W.2d 191 (N.D. 1993)
Burr v. Trinity Medical Center , 492 N.W.2d 904 (N.D. 1992)
Finch v. Backes , 491 N.W.2d 705 (N.D. 1992)
Bjorgen v. Kinsey , 491 N.W.2d 389 (N.D. 1992)
Bjorgen v. Kinsey , 466 N.W.2d 553 (N.D. 1991)
Thompson v. Goetz , 455 N.W.2d 580 (N.D. 1990)
Johnson v. Kennedy , 453 N.W.2d 830 (N.D. 1990)
Wheeler v. Schmid Laboratories, Inc. , 451 N.W.2d 133 (N.D. 1990)
Klem v. Greenwood , 450 N.W.2d 738 (N.D. 1990)
Berglund v. Gulsvig , 448 N.W.2d 627 (N.D. 1989)
Swanson v. Sheppard , 445 N.W.2d 654 (N.D. 1989)
Kershaw v. Reichert , 445 N.W.2d 16 (N.D. 1989)
Froysland v. Altenburg , 439 N.W.2d 797 (N.D. 1989)
Heimer v. Privratsky , 434 N.W.2d 357 (N.D. 1989)
Wastvedt v. Vaaler , 430 N.W.2d 561 (N.D. 1988)
Herzog v. Yuill , 430 N.W.2d 63 (N.D. 1988)
Hopkins v. McBane , 427 N.W.2d 85 (N.D. 1988)
Peterson v. Kilzer , 420 N.W.2d 754 (N.D. 1988)
Baar v. Dynes , 413 N.W.2d 368 (N.D. 1987)
Collom v. Pierson , 411 N.W.2d 92 (N.D. 1987)
Froysland v. St. Luke's Hospitals , 408 N.W.2d 742 (N.D. 1987)
Herzog v. Yuill , 399 N.W.2d 287 (N.D. 1987)
Wall v. Lewis , 393 N.W.2d 758 (N.D. 1986)
Andrews v. O'Hearn , 387 N.W.2d 716 (N.D. 1986)
Shark v. Thompson , 373 N.W.2d 859 (N.D. 1985)
Binstock v. Tschider , 374 N.W.2d 81 (N.D. 1985)
Bohn v. Johnson , 371 N.W.2d 781 (N.D. 1985)
Wall v. Lewis , 366 N.W.2d 471 (N.D. 1985)
Benedict v. St. Luke's Hospital , 365 N.W.2d 499 (N.D. 1985)
Martinson Bros. v. Hjellum , 359 N.W.2d 865 (N.D. 1985)
Hopkins v. McBane , 359 N.W.2d 862 (N.D. 1984)
Phillips Fur & Wool Co. v. Bailey , 340 N.W.2d 448 (N.D. 1983)
Buzzell v. Libi , 340 N.W.2d 36 (N.D. 1983)
Anderson v. Shook , 333 N.W.2d 708 (N.D. 1983)
Schwartz v. Ghaly , 318 N.W.2d 294 (N.D. 1982)
Fritz v. Hassan , 316 N.W.2d 797 (N.D. 1982)
Sheets v. Letnes, Marshall & Fiedler, Ltd. , 311 N.W.2d 175 (N.D. 1981)
Krueger v. St. Joseph's Hospital , 305 N.W.2d 18 (N.D. 1981)
Ness v. St. Aloisius Hospital , 301 N.W.2d 647 (N.D. 1981)
Walsvik v. Brandel , 298 N.W.2d 375 (N.D. 1980)
Boedecker v. St. Alexius Hospital , 298 N.W.2d 372 (N.D. 1980)
VanVleet v. Pfeifle , 289 N.W.2d 781 (N.D. 1980)
Peterson v. Hart , 278 N.W.2d 133 (N.D. 1979)
Winkjer v. Herr , 277 N.W.2d 579 (N.D. 1979)
Wasem v. Laskowski , 274 N.W.2d 219 (N.D. 1979)
Reiling v. Bhattacharyya , 276 N.W.2d 237 (N.D. 1978)
Reiling v. Bhattacharyya , 270 N.W.2d 562 (N.D. 1978)
Hubbard v. Libi , 229 N.W.2d 82 (N.D. 1975)
Rolfstad, Winkjer, Suess, McKennett and Kaiser v. Hanson , 221 N.W.2d 734 (N.D. 1974)
Sagmiller v. Carlsen , 219 N.W.2d 885 (N.D. 1974)
Feil v. Wishek , 193 N.W.2d 218 (N.D. 1971)
Iverson v. Lancaster , 158 N.W.2d 507 (N.D. 1968)

Generated from Supreme Court Docket on 07/23/2008