North Dakota medical malpractice deadlines: how long you have to act.

North Dakota lists “an action for the recovery of damages resulting from malpractice” among the actions that must be commenced within 2 years after the claim for relief has accrued (N.D.C.C. § 28-01-18(3)).

The rules that shape that 2-year period:

• A 6-year limit for physicians and licensed hospitals: not discovering the malpractice can’t extend the time beyond 6 years from the act or omission, unless the physician’s or hospital’s fraudulent conduct prevented discovery.
• Children: time spent under 18 generally isn’t counted, but for professional malpractice that extension is limited to 12 years.
• An expert affidavit: after the action is commenced, the person suing has 3 months to serve an affidavit containing an expert opinion, unless the case involves an obvious occurrence.
• Other rules: deaths, the state, local governments, and federal facilities each have their own provisions.

This is general information, not legal advice. Deadlines turn on the exact facts, so talk with an attorney licensed in North Dakota about your dates.

The malpractice subsection counts the 2 years from the date “the claim for relief has accrued” (N.D.C.C. § 28-01-18(3)). It doesn’t say in its own words what day that is.

The same subsection does speak of the limitation being extended “by a nondiscovery” of the malpractice, and then caps how far that can go. So the date someone found out, or could have found out, about a problem can matter. Exactly how accrual works for a given set of facts isn’t spelled out in the statute, and it is a question for an attorney.

Keep a simple record: the date of each appointment, procedure, or prescription involved, and the date you first noticed or were told that something might be wrong. Those two dates are the starting point for any attorney’s review.

For an action against a physician or licensed hospital, North Dakota says the limitation “will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof,” unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital (N.D.C.C. § 28-01-18(3)).

Two points follow from that text:

• It runs from the care. The 6 years are measured from the act or omission, not from the day the harm came to light. A problem found 5½ years after an operation may leave very little time, and one found later still may be too late unless the fraud exception applies.
• It names two kinds of defendants. The 6-year sentence refers to a physician or licensed hospital. The 2-year period itself covers malpractice generally. If the care came from someone else, such as a nurse, a clinic, or a care facility, ask an attorney how the time is measured.

The subsection ends by saying the limitation “is subject to the provisions of section 28-01-25,” the section on minors and other disabilities discussed below (§ 28-01-18(3)).

Fraud by the physician or hospital. The 6-year limit doesn’t hold when “discovery was prevented by the fraudulent conduct” of the physician or licensed hospital (N.D.C.C. § 28-01-18(3)). The subsection doesn’t set a separate number of years for that situation.

The general concealment rule. Elsewhere in the same chapter, North Dakota provides that when a party prevents someone from learning of a claim by fraud or fraudulent concealment, that person may commence an action within 1 year from when the claim is discovered or might have been discovered with diligence. The fraud or concealment must be established by a fair preponderance of the evidence (N.D.C.C. § 28-01-24). How that general rule fits with the malpractice subsection is a question for an attorney.

Foreign objects. The limitation section has no special deadline for a sponge, instrument, or other object left in the body. Foreign objects come up in a different section: the expert affidavit described below isn’t required for an unintentional failure to remove a foreign substance from within a patient’s body (N.D.C.C. § 28-01-46). That changes what must be filed after the case starts, not how long you have to start it.

If you think records were altered or something was kept from you, say so to an attorney early and keep copies of every document and message you received.

North Dakota’s disability section applies when the person entitled to bring the action is under 18 at the time the claim accrues. The time of that disability “is not a part of the time limited for the commencement of the action” (N.D.C.C. § 28-01-25).

The same section then adds limits:

• The malpractice cap: “In cases alleging professional malpractice, the extension of the limitation due to infancy is limited to twelve years.”
• A general limit: the period can’t “be extended in any case longer than one year after the disability ceases.” For a minor, the disability ceases at 18.

Because the malpractice subsection is expressly “subject to” this section (§ 28-01-18(3)), all of these sentences bear on a child’s case. Read together, they can produce different end dates depending on how old the child was when the care happened. Families shouldn’t wait for a birthday to ask; an attorney licensed in North Dakota can work out the dates. See birth injuries for more on concerns about a newborn’s care.

The disability section also covers a person who, when the claim accrues, is “insane” (the statute’s word) or imprisoned on a criminal charge or under a criminal sentence for a term less than life. As with minors, the time of that disability isn’t counted (N.D.C.C. § 28-01-25).

For these disabilities the extension is narrower. The period “cannot be extended more than five years by any such disability except infancy,” and in any case no longer than 1 year after the disability ends. The disability has to exist at the time the claim accrues, so a condition that begins later doesn’t trigger this section.

Questions about capacity, guardianship, and who can act for an adult who can’t manage their own affairs are worth raising with an attorney as soon as possible.

The deadline. An action for injuries to a person when death follows from those injuries must be commenced within 2 years. Usually that claim accrues at the death, but when death results from malpractice, the claim “is deemed to have accrued at the time of the discovery of the malpractice.” Here too, nondiscovery can’t extend the limitation beyond 6 years from the act or omission unless the physician’s or hospital’s fraudulent conduct prevented discovery (N.D.C.C. § 28-01-18(4)).

Who brings it. North Dakota allows an action whenever a death is caused by a wrongful act, neglect, or default that would have let the injured person sue had they lived (N.D.C.C. § 32-21-01). The statute sets an order: the surviving spouse, then the surviving children, then a surviving parent, then a surviving grandparent, then the personal representative, and then a person who had primary physical custody of the person before the wrongful act. If someone higher on the list refuses or neglects to bring the action for 30 days after a demand from the next person in order, that next person may bring it (§ 32-21-03).

Where the recovery goes. The amount recovered isn’t subject to the debts of the person who died. It goes to that person’s heirs at law, in shares the trial judge sets (§ 32-21-04).

A claim the person had before dying. Separately, claims generally survive a party’s death, and if a person entitled to sue dies before the time to do so has run out, that person’s representatives may commence the action within 1 year from the death, even after the original time expires (§§ 28-01-26, 28-01-26.1). Which of these provisions fits a family’s situation is a question for an attorney.

Rather than a review before filing, North Dakota asks for proof of an expert opinion shortly after the case begins. An action for injury or death alleging professional negligence by a physician, nurse, hospital, licensed nursing, basic, or assisted living facility, or another health care organization, including an ambulatory surgery center or a group of physicians operating a clinic or outpatient care facility, “must be dismissed without prejudice on motion” unless the person suing serves an affidavit containing an admissible expert opinion within 3 months of the commencement of the action (N.D.C.C. § 28-01-46).

• What it must say: the expert’s name and business address, the expert’s field, and a brief summary of the basis for the opinion. The opinion must support a prima facie case of professional negligence.
• More time: the court may set a later date for good cause, but only if the request is made before the 3 months run out.
• Obvious occurrences: the requirement doesn’t apply to an unintentional failure to remove a foreign substance from the body, a procedure on the wrong patient, organ, limb, or other body part, or another obvious occurrence.

The section doesn’t pause or extend the 2-year limitation period, and the North Dakota statutes reviewed for this guide don’t require a notice of intent or a review panel before suing a private provider. Lining up a qualified expert takes time, which is one reason attorneys prefer to start well before the deadline.

Service, not just filing. Under the limitations chapter, an action is commenced as to each defendant when the summons is served on that defendant, or on a codefendant united in interest with them. Delivering the summons to the sheriff or another officer of the right county, intending that it actually be served, counts as an attempt to commence the action, but service or first publication must follow within 60 days (N.D.C.C. § 28-01-38). Waiting until the last week leaves little room for that step.

Medical records. Starting a malpractice action against a health care provider or facility waives, in that action, the evidentiary privilege covering records and opinions held by other providers who examined or cared for the person whose condition is at issue. The person suing must provide authorizations for access to those records when the action is commenced, and the person’s attorney must have the chance to attend any informal discussion between the defense and those providers (N.D.C.C. § 28-01-46.1).

• Put the dates on paper: when the care happened and when you first learned or suspected a problem.
• Ask for copies of your medical records, and keep bills, discharge instructions, and letters from the provider.
• Identify who provided the care: a private physician or hospital, a state facility, a county or city provider, or a VA or military facility. Different rules apply to each.
• Talk with an attorney licensed in North Dakota soon. Only an attorney can say which deadline applies and how much time is left.

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This guide summarizes the North Dakota Century Code as published by the North Dakota Legislative Branch and federal law, as read on October 27, 2026. It is general information, not legal advice.

• N.D.C.C. § 28-01-18(3), (4): the 2-year period for malpractice, the 6-year limit, fraud, and deaths caused by malpractice
• N.D.C.C. § 28-01-24: claims fraudulently concealed
• N.D.C.C. § 28-01-25: minors, insanity, imprisonment, and the 12-year malpractice cap
• N.D.C.C. §§ 28-01-26 and 28-01-26.1: limitation in case of death and survival of claims
• N.D.C.C. § 28-01-38: when an action is commenced
• N.D.C.C. § 28-01-46: the expert opinion affidavit; § 28-01-46.1: waiver of privilege for medical records
• N.D.C.C. chapter 32-21 (§§ 32-21-01, 32-21-03, 32-21-04): death by wrongful act
• N.D.C.C. chapter 32-12.2 (§§ 32-12.2-01, 32-12.2-02, 32-12.2-04) and § 28-01-22.1: claims against the state; § 26.1-41-01(21): “serious injury”
• N.D.C.C. chapter 32-12.1 (§§ 32-12.1-02, 32-12.1-04, 32-12.1-10): political subdivisions
• 28 U.S.C. § 2401(b): federal tort claims