North Dakota Nursing Home Abuse Laws
North Dakota’s Cap on Medical Malpractice Damage Awards
Some states limit the amount of damages that can be awarded in a civil trial by enacting what are known as “Damage caps.” Generally speaking, caps are arbitrary limits that limit the amount of money a victim can recover. Caps punish the most seriously injured victims of neglect and abuse by capping the amount of monetary damages that can be awarded against the person who caused the harm. Usually, damage caps are the result of lobbying efforts by large insurance companies and big businesses.
In North Dakota, there is a noneconomic damages cap of $500,000 in medical malpractice cases. N.D. Cent. Code § 32-42-02. In addition, any award of economic damages of over $250,000 may be challenged by the defendant and reviewed by a judge. When economic damages are challenged by a defendant, the defendant has the burden of proving that the award does not reflect the injured person’s reasonable economic losses.
The state of North Dakota limits punitive damages to $250,000 or twice the amount of compensation, whichever is greater; however, punitive damages may not be awarded if there are no compensatory damages. § 32-03.2-11.
The Statute of Limitations
The statute of limitations is the length of time a plaintiff has in which to file a legal claim against a nursing home because of elder abuse or caregiver neglect. The length of the statute changes depending on whether the victim was injured, killed, or harmed by medical malpractice.
In North Dakota, the statute of limitations on injuries that result from nursing home neglect or nursing home abuse is generally six years. See § 28-01-16.
Medical Malpractice and Wrongful Death
The statute of limitations in cases for medical malpractice and wrongful death is two years. In the case of medical malpractice, the North Dakota statute of limitations is two years from the date of the discovery of the malpractice but not more than 6 years from the date of the injury. An exception to this limit is when discovery of the malpractice was prevented by fraudulent conduct. See § 28-01-18. Further, if medical malpractice results in death, the statute of limitations is two years from the date of death.
Claimants in wrongful death cases may recover compensatory damages which are proportionate to the injury resulting in death, as well as punitive damages. See § 32-21-02.
Attorney’s Contingency Fees
Almost universally, nursing home neglect and abuse cases that result in personal injury or wrongful death are retained on a contingent fee basis. Under a contingent fee agreement, the attorney is paid out of the settlement or award made for the client. The North Dakota Rules of Professional Conduct provide that an attorney’s contingent fees must be reasonable. In addition, the contingent fee must be in writing and explicitly state how the fee is determined and what percentage the attorney will be paid from any settlement, award or appeal.
North Dakota Nursing Home Regulations
When elderly residents are admitted to a North Dakota nursing home they maintain the legal rights they had while living in the community at large. Long term care and nursing home facilities are responsible for protecting and promoting the legal rights and responsibilities which are guaranteed by both federal and North Dakota state law.
Under these laws, each nursing home is required to:
- Provide personal care to each and every resident in a respectful and dignified manner which emphasizes choice and self determination.
- Protect and promote the nursing home resident’s rights as a citizen.
- Provide adequate quality of care services that promote the individual needs of each resident.
- Provide reasonable accommodations for a resident’s needs and preferences.
What Legal Rights Do Elderly Residents Have?
North Dakota Nursing home Resident’s Rights include but are not limited to:
- The right to receive proper medical care.
- The right to be involved in planning for their own medical care and be fully informed about their total health status. This includes a nursing home resident’s right to be informed immediately if there is a significant change in physical, mental or psychosocial condition.
- The right to choose health care providers and be informed of providers of medical treatment.
- The right to receive a copy of medical records.
- The right to be provided with a copy of resident’s rights and responsibilities and all of the facility policies.
- The right to respectful treatment.
- The right to participate in the nursing home facilities activities program.
- The right to not be discriminated against.
- The right to receive assistance with applying for Medical Assistance such as Medicare.
- The right to right to be informed of all costs of their care.
- The right to not be neglected, abused or mistreated by staff.
- The right to not be involuntarily isolated from other residents.
- The right to manage their own finances or request the nursing home manage their finances.
- The right to privacy, property, and living arrangements.
- The right to visit and associate with persons of their choosing.
- The right to not be transferred or discharged from a nursing home, unless:
- A physician documents that the facility cannot meet the resident’s health needs, or if health needs have improved so that the resident no longer needs the facilities services.
- Your own health or safety, or the health or safety of another resident, is at risk.
- The reason is nonpayment of a bill.
- The facility closes.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.
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