South Dakota Medical Malpractice Laws

If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider. This type of litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in South Dakota; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in South Dakota. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in South Dakota

In South Dakota, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in South Dakota places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in South Dakota is the only state that follows a “slight/gross” negligence standard which is used reduce damages in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. South Dakota places a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in South Dakota?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in South Dakota mandates that an action for medical malpractice must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations has passed, a court can dismiss your case and you will be left with no other legal option to pursue justice.

The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that South Dakota law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover, or should have discovered, your injury, the two-year window to file your lawsuit begins.

In South Dakota Medical Malpractice Cases, who is Responsible?

In South Dakota, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed health care provider based upon their negligence, misconduct, errors or omissions.

Those that can be held responsible due to being included in the definition of a “health care provider” include a chiropractor, optometrist, podiatrist, dentist, dental hygienist, dental assistant, hospital, critical access hospital, registered nurse, licensed practical nurse, certified registered nurse anesthetist, clinical nurse specialist, nurse practitioner, nurse midwife, or physician’s assistant, or the practitioner’s corporate, limited liability partnership, or limited liability company employer.

When bringing a medical malpractice claim against a healthcare professional or provider, the burden of proof rests with you and you must prove:

• The standard of care in the medical community for which the defendant’s treatment should be measured,
• That the defendant deviated from that standard,
• That the deviation proximately caused your injury.

What if I am partially to blame? Can I Still Recover Money for South Dakota Medical Malpractice?

South Dakota is the only state that recognizes the doctrine of slight/gross negligence comparative fault. The doctrine allows injured parties to collect damages if their negligence was slight and the defendant’s was gross. This means that a person can collect damages if he or she was only slightly at fault for his or her disability. If the plaintiff’s negligence was not slight and the defendant’s conduct was not gross, then the plaintiff is barred from recovery. [2]

The slight/gross system is meant to be a compromise between traditional contributory negligence and comparative fault alternatives. However, the system has drawn heavy criticism since there is not a clear-cut definition of what constitute slight negligence and what constitutes gross negligence. The court in Wood v. City of Crooks ruled that if a plaintiff is found to have contributed to an injury by 30% or more, their conduct will be deemed to have been more than slight. [3]

An example of the system would be if two intoxicated individuals got into a verbal argument and one of the individuals takes a baseball bat and hits the other individual in the head. In this situation, the damages the individual who did not use the baseball bat might receive are likely to be reduced because he or she were an integral part of a verbal altercation. The other individual’s act of committing battery with a baseball bat will likely be deemed to be gross.

Are there medical malpractice recovery caps in South Dakota?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence.

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you. In order to obtain a punitive damage award in South Dakota, you must prove that the named defendants in the lawsuit acted with actual malice.

The total amount of non-economic damages that may be awarded are limited to a maximum of $500,000. There is no limitation on the amount of economic damages that may be awarded. [4]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice in South Dakota. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

To determine whether the testimony of an expert is admissible at trial, courts in South Dakota have ruled that the proper way to determine the admissibility of expert testimony is to compare the physician’s knowledge, skill, experience, or education and the testimony the witness intends to deliver. [5] Whether or not a person can qualify as an expert witness is not a question of education, but whether the education can properly factor into their analysis.

Are some parties immune from medical negligence cases?

Sovereign immunity is a doctrine by which a State is immune from civil or criminal liability. Historically, South Dakota as adhered to the principle that the State cannot be sued without its consent.

In the 1980s, South Dakota’s legislature passed the PEPL Law which allowed certain entities to pool contributions for the purposes of providing tort liability coverage. Now, South Dakota’s sovereign immunity is waived to the extent that coverage is provided. The PEPL Law provides State employees with a $1,000,000 per occurrence coverage limit for medical malpractice liability. State employees are defined as being all current and former employees and elected officers of the state whether classified, unclassified, licensed or certified, permanent or temporary, whether compensated or not.

Settling medical malpractice cases in South Dakota

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel. However, the law in South Dakota does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

Litigating medical negligence cases in South Dakota

A claim for medical malpractice in South Dakota is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In South Dakota, circuit courts are the trial courts of the Unified Judicial System. The Supreme Court most often serves as an appellate court for the purposes of hearing appeals to circuit court decisions.

In South Dakota, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant.
• The venue for which you would like the case to be heard.
• A statement of facts constituting the cause of action.
• A demand for relief.

A civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. Service may be performed by personal service or substituted service. [6] Substituted service involves the leaving a copy of the summons at the defendant’s dwelling in the presence of a member of their family who is over the age of 14 years old.

All named defendants are then required to provide a response to the complaint in the form of an Answer within 30 days of being served. An Answer is the defendant’s legal response to the Complaint.

Preparing for Litigation

After the Complaint, Affidavit, Summons, and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are usually asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

You can attempt to settle your case by way of informal conversations between representing attorneys or through alternative dispute resolution.

The law in South Dakota does not require the pre-trial use of alternative dispute resolution as a means of settling a case but does allow its use on a voluntary basis.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of South Dakota: a judge or a jury. South Dakota usually utilizes 12-member juries in most civil cases but that number can be reduced to six if both sides agree. In civil cases, five out of six jurors must agree for a verdict to be rendered.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in South Dakota allows each side to have three peremptory challenges where jurors may be eliminated from consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In South Dakota, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of South Dakota
• at least 18 years of age; and
• able to communicate in the English language

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The notice of appeal must be filed with the clerk of the circuit court within thirty days (30) after the entry of the final judgment. [7]

How to find the best South Dakota Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Some notable medical malpractice law decisions from South Dakota

These cases represent awards to plaintiffs in medical malpractice cases in South Dakota. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

McClaren v. Sufficool

The plaintiff, Don McLaren, was awarded $776,000 in damages after successfully bringing a medical malpractice lawsuit against Dr. Wesley Sufficool.

The Estate of Don’s wife, Karla McLaren, brought the medical malpractice action against Dr. Sufficool in connection with a surgery performed on Karla. Dr. Sufficool had removed her gallbladder which caused Karla’s health to significantly deteriorate.

Karla was hospitalized due to a great deal of pain. Doctors then discovered the surgical staples preventing the flow of bile from her liver into her digestive system. The staples were removed but it was too late as the damage was done. Karla was then told that she had late-stage liver disease which ultimately caused her death.

Despite Dr. Sufficool’s claims that the staples were not placed where they were ultimately found, it was proved at trial that Dr. Sufficcool had negligently placed staples on Karla’s right and left hepatic ducts when they should have been placed on the cystic ducts. The improper placement of the staples cut off the flow of bile from the liver into her digestive tract.

Bockholt v. Dr. Allen Sossan

A medical malpractice lawsuit was brought against Dr. Allen Sossan, a reconstructive spinal and orthopedic surgeon, and his practice, Reconstructive Spinal Surgery and Orthopedic Surgery, by the estate of Frances Bockholt.

The lawsuit was based upon claims that Dr. Sossan performed unnecessary spinal fusion surgeries on Bockholt within a short period of time.

Dr. Sossan promised Frances Bockholt that she would be free of back pain after undergoing the complex spinal procedure. However, rather than make her pain-free, the surgery was the first of many. Bockholt had two additional back surgeries within a month. Overall, Bockholt underwent 12 surgeries. The surgeries caused infections to develop in her spine. The surgeries also caused a hernia, which required more surgery and caused more complications.

Frances Bockholt died one year later.

The jury found that the defendants were negligent in providing medical treatment to Frances Buckholt and that their negligence was a legal cause of injury to Bockholt. However, the court did not find that the surgeries were the ultimate legal cause of her death.

Damages of $500,000 were awarded to the estate in relation to Frances Bockholt’s medical care, treatment, nursing and attendance services. An additional $250,000 was awarded for the conscious pain and suffering, mental anguish and loss of capacity to enjoy life from the time of Bockholt’s first surgery until the time of her death. $183,835.60 was also awarded as pre-judgment interest.

At least five other medical malpractice lawsuits against Dr. Sossan are pending.

Footnotes

[1] S.D. C.L. § 15-2-14.1

[2] S.D.C.L. § 20-9-2

[3] Wood v. City of Crooks,559 N.W.2d 558

[4] S.D.C.L. § 21-3-11

[5] Maroney v. Aman, 565 N.W.2d 70, 78

[6] S.D.C.L. § 15-6-4(d)(8)

[7] S.D.C.L. § 15-26A-6