Medical Malpractice Laws in North Dakota (2026): Deadlines & Caps

North Dakota sets firm deadlines for medical malpractice claims and enforces a cap on noneconomic damages that the state Supreme Court has upheld. A patient generally has two years to sue under N.D.C.C. 28-01-18, faces a $500,000 limit on noneconomic (pain and suffering) damages under N.D.C.C. 32-42-02, and must serve an expert affidavit within three months of filing under N.D.C.C. 28-01-46. This page explains those rules along with the statute of repose, who can be liable, and the wrongful-death framework.

This is general legal information, not legal advice, and it is part of our Medical Malpractice Laws by State series. The deadlines and exceptions depend on the facts, so confirm your situation with a licensed North Dakota attorney.

What counts as medical malpractice in North Dakota

A medical malpractice claim in North Dakota is a claim for injury or death caused by professional negligence of a health care provider, meaning care that fell below the accepted standard of care and caused harm. The provider may be a physician, nurse, hospital, or a nursing, basic, or assisted living facility licensed by the state. A bad outcome alone is not malpractice; the patient must show that the provider failed to act as a reasonably careful provider would have under the circumstances and that the failure caused the injury.

The statute of limitations to sue in North Dakota

Under N.D.C.C. 28-01-18, an action for the recovery of damages resulting from malpractice must generally be commenced within two years. The two-year clock runs from the act or omission, or from the time the plaintiff knew or, with reasonable diligence, should have known of the injury, whichever applies. This discovery rule means the period can begin when a reasonable patient would have learned of the injury and its possible connection to the care rather than on the date of treatment.

Because the discovery rule and the two-year period interact with the repose deadline below, the exact start date can be disputed. A patient who suspects malpractice should treat the two-year period as the working deadline and confirm it with an attorney.

North Dakota's statute of repose

North Dakota sets an absolute outer deadline, and the statute writes it for a specific set of defendants. Under N.D.C.C. 28-01-18(3), the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery of it, unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital. The parallel wrongful-death provision in subsection 4 uses the same six-year outer limit and refers to the fraudulent conduct of the physician or hospital.

That wording matters when the defendant is someone else. The text of 28-01-18 does not say how the six-year nondiscovery cutoff applies to a defendant who is not a physician or licensed hospital, such as a nurse, an ambulatory surgery center, or an assisted living facility, so treat the outer deadline as an open question for those defendants rather than as settled either way. Where it does apply, a repose period is a hard cutoff that can expire before a patient even discovers the injury, so the six-year limit matters as much as the two-year clock.

Damage caps in North Dakota: the $500,000 noneconomic cap is in force

North Dakota limits noneconomic damages in medical malpractice cases. Under N.D.C.C. 32-42-02, the total amount of compensation that may be awarded for noneconomic damage in a health care malpractice action may not exceed $500,000, regardless of the number of health care providers and other defendants in the case. Noneconomic damage covers pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of consortium, and similar nonpecuniary harm.

This cap is current law, which sets North Dakota apart from several states whose caps have been struck down. In Condon v. St. Alexius Medical Center, 2019 ND 113, the North Dakota Supreme Court held that the $500,000 cap in N.D.C.C. 32-42-02 does not violate the equal-protection provisions of the North Dakota Constitution, reversing a district court that had found it unconstitutional and remanding for the award to be reduced to the cap. The cap applies only to noneconomic damages; economic damages such as medical expenses and lost income are not capped.

The expert affidavit requirement under N.D.C.C. 28-01-46

North Dakota requires early expert support for most malpractice claims. Under N.D.C.C. 28-01-46, an action for injury or death alleging professional negligence by a physician, nurse, hospital, or licensed facility must be dismissed without prejudice on motion unless the plaintiff serves on the defendant, within three months of commencing the action, an affidavit containing an admissible expert opinion to support a prima facie case of negligence.

The affidavit must identify the expert and the expert's area of expertise and summarize the basis for the opinion, including the applicable standard of care, how the provider violated it, and how that violation caused or contributed to the injury. A court may set a later date for good cause if the plaintiff requests an extension before the three-month period runs. There is a narrow exception for obvious cases where negligence can be understood without expert testimony, but most cases require the affidavit.

Who can be liable and the expert requirement

Malpractice claims in North Dakota can target individual clinicians and the institutions responsible for care. Physicians, nurses, hospitals, and licensed care facilities can be liable, and a hospital can be responsible for its own negligence or that of its employees. Because the standard of care is a medical question, expert testimony is generally required both to prove the case and to satisfy the N.D.C.C. 28-01-46 affidavit, so qualified expert review is needed early.

Comparative fault in North Dakota

North Dakota follows modified comparative fault under N.D.C.C. chapter 32-03.2, with a strict 50% bar. A plaintiff who shares fault may still recover, but only if the plaintiff's fault is less than the combined fault of the persons against whom recovery is sought, and the damages are reduced in proportion to the plaintiff's share. Under N.D.C.C. 32-03.2-02, contributory fault bars recovery once it is as great as (equal to or greater than) the defendants' combined fault, so a plaintiff found exactly 50% at fault recovers nothing.

Wrongful-death medical malpractice in North Dakota

When malpractice causes death, the claim proceeds as a wrongful-death action brought by the statutory beneficiaries or the estate. Under N.D.C.C. 28-01-18(4), a claim for relief for a death resulting from malpractice is deemed to accrue at the time of the discovery of the malpractice, and the same six-year nondiscovery outer limit applies unless discovery was prevented by the fraudulent conduct of the physician or hospital. The Condon decision arose from a malpractice injury and confirms that the noneconomic cap in N.D.C.C. 32-42-02 limits compensation for the claimant and family members. The deadlines and the categories of recoverable damages for survivors can differ from a standard personal-injury malpractice claim, so identifying the correct framework early matters.

How to evaluate and preserve a possible claim

While every situation is different and this is general information rather than legal advice, people who suspect malpractice in North Dakota often begin by gathering complete medical records and noting key dates, because the two-year and six-year clocks under 28-01-18 can be unforgiving. Because N.D.C.C. 28-01-46 requires an expert affidavit within three months of filing, an attorney typically arranges expert review early. Malpractice cases are commonly handled on a contingency-fee basis, and consulting a licensed North Dakota attorney early helps preserve evidence and meet the deadlines, though no attorney can promise a particular outcome or dollar amount.