South Dakota Medical Malpractice Law - An Overview
By Aaron Larson
Law Offices of Aaron Larson
July, 2004
Important Notice: The following overview of South Dakota's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of South Dakota's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of South Dakota.
Contents
- What Is Medical Malpractice
- Limits on Malpractice Damages
- Collateral Source Rule
- Rules for Expert Witnesses
- Joint and Several Liability
- Statute of Limitations
- Limits on Attorney Fees
- Additional Rules
- Why Use A Malpractice Lawyer
What Is Medical Malpractice
Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.
Limits on Malpractice Damages
South Dakota limits non-economid damages to $500,000.00.
Collateral Source Rule
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in South Dakota there is a mandatory offset for collateroal source payments, except where the payor has subrogation rights, or the benefits were paid for by the plaintiff.
Rules for Expert Witnesses
South Dakota does not impose special restrictions on expert witness testimony in medical malpractice cases.
Joint and Several Liability
Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. South Dakota has modified that rule such that any party who is allocated less than 50% of the total fault allocated to all parties may not be jointly liable for more than twice the percentage of fault allocated to that party.
Statute of Limitations
Medical malpractice actions must be commenced within two years of the act or omission giving rise to the injury. For medical malpractice litigation involving minors under the age of six, the child has two years after his or her sixth birthday to file a lawsuit. In the case of minors aged six and older, the minor must file suit within three years of the date of the act or omission giving rise to the injury.
Limits on Attorney Fees
South Dakota does not impose special limits on attorney fees in medical malpractice cases.
Additional Rules
South Dakota permits any party to elect the periodic payment of future damages exceeding $200,000.00, with election to be made within 120 days of service of the complaint.
Why Use A Malpractice Lawyer
Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.
Injured by a medical mistake? Talk to a medical malpractice lawyer for free.
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Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.
Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.
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