Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
In South Dakota, non-economic (pain and suffering) damages in medical malpratice cases are capped at $500,000.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. South Dakota follows a modified rule pursuant to which if a court enters a judgment against any party on the basis of joint and several liability, any party to whom less than fifty percent of the total fault is allocated may not be held jointly liable for a share of the damages more than twice the percentage of fault attributed to that party.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. South Dakota has eliminated the collateral source rule for medical malpractice cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In South Dakota, the statute of limitations is two years from the act or omission alleged to have caused the plaintiff's injury. For minors under the age of eighteen, the statute of limitations starts to run at the age of majority, but if the statute of limitations would otherwise have expired the statute of limitations may not be extended by more than one year after the plaintiff reaches the age of majority.
Additional rules affecting malpractice litigation in the State of South Dakota include:
Alternative Dispute Resolution
In South Dakota, a health care provider may enter into an agreement with a patient to resolve any future malpractice claim by arbitration. The agreement must meet specific statutory requirements to be valid, and may be canceled by the patient by written notice to all parties. Cancelation does not affect the application of the agreement to services rendered prior to the date of cancelation. The agreement may not be required as a prerequisite to obtaining medical care. Arbitration is a two-stage process. First the arbitration panel decides issues of liability. If liability is found, the parties have thirty days during which they may attempt to settle the claim. If they do not reach a settlement, the panel is reconvened to determine the amount of damages, if any, that should be awarded to the plaintiff.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. South Dakota's apology rule provides that no statement made by a health care provider apologizing for an adverse outcome in medical treatment, no offer to undertake corrective or remedial treatment or action, and no gratuitous act to assist affected persons is admissible to prove negligence by the health care provider in any action for damages for injury or death alleging malpractice against any health care provider. However, the rule does not prevent the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making the statement.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.