Military & VA Medical Malpractice in North Dakota

How to File a VA Medical Malpractice Claim in North Dakota

Filing a medical malpractice claim against a VA facility in North Dakota requires careful attention to federal procedures and deadlines. Follow these essential steps:

1. Document Everything

• Medical Records: Request complete copies of all VA medical records
• Timeline of Events: Create detailed chronology of treatment and injuries
• Witness Information: Gather contact details for any witnesses
• Financial Impact: Document all medical expenses and lost wages
• Photos: If applicable, photograph visible injuries or conditions

2. Obtain Supporting Medical Evidence

• Private Medical Opinions: Secure evaluations from non-VA providers
• Expert Review: Have records reviewed by qualified medical expert
• Medical Literature: Gather relevant medical research supporting your claim
• Treatment Records: Include documentation of ongoing care needs

3. File Standard Form 95 (SF-95)

• Complete All Sections: Every field must be filled out accurately
• Sum Certain: State exact dollar amount of damages claimed
• Supporting Documents: Attach relevant medical documentation
• Submission Methods:
  • Email to ogc.torts@va.gov
  • Mail to VA Office of General Counsel
  • Fax to (202) 495-5076

4. Wait for Agency Response

• Six-Month Review: Agency has 6 months to investigate and respond
• Possible Outcomes:
  • Claim acceptance with settlement offer
  • Claim denial
  • No response (deemed denied after 6 months)

5. File Federal Lawsuit if Necessary

• Timing: Must file within 6 months of claim denial
• Jurisdiction: U.S. District Court for District of North Dakota
• Proper Defendant: Name "United States of America" only

North Dakota FTCA Claims: State Law Considerations

Federal and State Deadlines

• FTCA Deadline: Two years from date of injury to file administrative claim (28 U.S.C. § 2401(b))
• Administrative Process: Must exhaust administrative remedies before lawsuit
• Six-Month Window: After denial, must file suit within 6 months
• Discovery Rule: Claim accrues when injury and its cause reasonably discovered

North Dakota Damage Considerations

North Dakota law impacts certain aspects of FTCA claims:

• Economic Damages: No cap on medical expenses or lost wages
• Non-Economic Damages: No statutory cap on pain and suffering
• Punitive Damages: Prohibited in FTCA cases (28 U.S.C. § 2674)
• Wrongful Death: Governed by North Dakota Century Code § 32-21-01

Expert Witness Requirements

North Dakota imposes specific requirements for medical malpractice cases:

• Qualifications: Expert must be licensed physician
• Same Specialty: Must practice in same or similar specialty
• Active Practice: Must be actively practicing or teaching
• Affidavit Timing: Must be filed with complaint or shortly after
• Standard of Care: Must specifically address breach of standard

Comparative Fault Impact

North Dakota follows modified comparative negligence (N.D. Cent. Code § 32-03.2-02):

• 50% Rule: Plaintiff can recover if 50% or less at fault
• Reduced Recovery: Damages reduced by plaintiff's percentage of fault
• FTCA Application: Federal court will apply these principles

This framework ensures claims follow both federal FTCA requirements and applicable North Dakota state law principles that affect damage calculations and proof requirements.