South Dakota Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in South Dakota.
Medical Malpractice South Dakota
The laws governing medical malpractice in South Dakota are complex, just like they are in every other part of the United States. However, if someone suffered any type of injury due to the negligence of a health care provider, it is prudent that a case is brought against the accused and compensation for the injury be sought. The court has set up South Dakota law to protect the injured party. It is just not likely that someone trying to go to court on his or her own will find much success. The best way to get the accused to pay for damages he or she caused is by seeking the guidance and direction of a medical malpractice lawyer.
Understanding What Constitutes South Dakota Medical Malpractice
Simple medical negligence is not enough to go to court for malpractice. Instead, there must be a connection between negligence and a serious injury. The injury must require additional care to be taken to help the injured party heal, which leads to medical bills, lost work time, or the inability to live life the same way following the injury. The laws are set up in a way that allows for the most streamlined court process possible because it keeps in mind how devastating a medical injury can be.
Malpractice has a few criteria that need to be met. Here is a basic rundown:
- The injured party must use witnesses to be able to explain the standard of care. This is what the patient had every right to expect when he or she showed up for medical care in terms of how he or she would be treated. For example, if a patient shows up at a dentist expecting to get a filling, he or she has the right to expect for the area to be numbed, the cavity to be cleaned and filled, and for the patient to be on his or her way when done. This is the normal behavior given the circumstances. No one would show up at a dental office expecting to have his or her foot amputated, as that is not reasonable for the care being sought.
- Next, the injured party must be able to prove that the care received at the time was not up to that standard. For example, if a chest X-ray is standard for someone coming to Urgent Care for a bad cough and the treating physician did not provide this test, this falls below the standard of care. However, if the physician did another imaging test that showed the lungs, this is the physician using a different type of care, not failing to provide the right kind of care.
- From there, the injured party must be able to prove his or her injury took place when and where they said it did. This means that if an injured party said that the injury took place while at a cosmetic surgeon’s office, there must be proof of this that can be brought into court.
- Finally, the injured patient must be able to prove that the subpar care he or she received was what caused the injury in question. For example, if an injury came from a nurse knocking over an IV stand in a hospital, the injured party must be able to show they were in that hospital and the nurse was the one in the room at the time. This connection is the only way that any type of compensation can be provided. If there is no connection here, there is no case.
What Can Injuries Lead to a Medical Malpractice Lawsuit?
Many types of injuries can lead to an injured party filing a lawsuit for malpractice. However, each case depends on the circumstances surrounding the actual incident that caused the injury. Here are some common injuries that are heard in malpractice courts regularly:
- Someone knocking over medical equipment and it hitting the patient
- Never providing a diagnosis to a patient with obvious symptoms
- Prescribing a medication the patient never needed
- Someone asking for help out of bed and not getting it, then falling and breaking a bone
- Premature discharge from the hospital when it was not safe
- Ordering the wrong tests and the results not being able to be used in the diagnosis process
- Turning off any type of alarm that allows for a warning to go off if a patient’s vital signs fall to dangerous levels
- Not diagnosing something obvious during pregnancy where a child or mother becomes injured or died
- Misdiagnosing a patient based on faulty test results that were never verified
- Giving medication based off reading the wrong patient’s chart
- Performing unnecessary surgery on any part of the patient’s body
- Unnecessary delay of diagnosis that allowed the patient to crash while waiting for the diagnosis and treatment
- Neglecting the aftercare that a patient needed, which led to the patient’s decline in health or death.
- Using equipment that has not been maintained or is known to be faulty
- Surgical errors, such as removing the wrong organ or operating on the incorrect side of the body
- Requesting a patient be given medication that is in his or her medical chart as an allergy
- Never getting the right information to fill out a medical history on a patient
- Using knowingly defective medical devices
- A lack of communication about the dangers of procedures or treatments, and the patient getting hurt by the side effects
- Neglecting obvious fluctuations in vital signs that pointed to a problem
- Birth injuries where a child is deprived of oxygen or a mother is left laboring alone, and the child or mother get injured or die
- Leaving any equipment inside the patient when surgery is over.
- Using anesthesia on a patient and not being able to wake them up because it contradicted another medication in the patient’s system
- Not reading results of ordered tests properly and misdiagnosing the patient
There are many more kinds of injuries that qualify as malpractice. This list, while not exhaustive, is a good start in giving injured parties an idea of what could be something to look into.
What Are the Medical Malpractice Statute of Limitations in South Dakota?
The state law in South Dakota says that the statute of limitations is two years from when the injury took place. These filing deadlines are steadfast, and it does not matter if the injured party knew of his or her injuries the day they happened, or five years later. The only exceptions are for people who are considered under any type of disability or a minor at the time the injury took place. In these cases, there are longer deadlines. Once a minor turns 18, he or she has one year to file a lawsuit. Anyone deemed mentally ill has one year to file from the day the diagnosis changes to mentally competent. The same goes for anyone that may be disabled. Once that disability has passed, one year is the only window he or she has to file a medical malpractice claim.
What Are the Damage Caps for South Dakota Medical Malpractice Cases?
When someone plans to file a case of medical malpractice, he or she needs to understand what financial limits are placed on any type of damages awarded or settlement involved. There are caps to the damages people can receive for these claims, but they only apply to one type of damages – the ones based on distress. Those are capped at $500,000 to cover that portion of what happened. There are compensation options for the financial strain on the injured party, and then there are compensation options for the distress the injury caused.
The financial damages are called monetary, and include things like:
- Current bills to cover the treatment of the injury and future bills that will continue to come in as more medical treatment and more procedures may be necessary to help improve the chances of recovery
- Traveling to and from appointments is also a type of damage that can be covered
- Bills to cover prescriptions and equipment the injured party may need to make the recovery process just a little easier
- Therapy bills for any type of relief or to relearn functions lost as a result of the injury
- Current wages that cannot be earned due to the injury, plus future wages that the injured party may not be able to earn if he or she is unable to return to the job they once had
The distress damages are called non-economic damages, and those are for things like:
- The pain and distress that the injury caused
- Embarrassment for disfigurement caused by a health care provider
- Not having the same quality of life that the injured party once did
- Distress from no longer being able to provide to the family in the same manner
- Not being able to help with daily tasks due to the injury, such as helping with housework, mowing the lawn, or taking the children to school
- Expenses to cover a funeral if the injured party died because of the injuries sustained
On top of this cap, sometimes the plaintiff can also be found partially at fault. If this is the case, then the percentage of the fault that falls on the plaintiff is taken off of the total compensation awarded at the end of the trial. For example, if a plaintiff is found 10 percent at fault of a $1,000,000 award, the award the injured party receives then drops to $900,000 since the accused would only be 90 percent at fault for what happened.
Filing a Claim of Medical Malpractice in South Dakota
When it comes to filing a claim for malpractice, there are specific steps that must be adhered to. First, there must be evidence. This means that an investigation into what happened must be ongoing and the evidence points to malpractice. Expect the investigation to go through lots of evidence, including:
- All of the medical records on file for the injured party. The court will want to see what state of health the injured party was in before the accident as well as the current state of health. Plus, the court will want to see that there was no delay in getting care for the injury after it happened.
- Videos and photos that were taken during the accident. This can be pictures or videos the injured party or his or her friends and family took, anything people put up on social media about the incident or even pictures that were taken innocently by bystanders who did not know what was going on.
- Surveillance of the area around when and where the injury took place. This is helpful if there was no video surveillance in the immediate area where the injury happened but can catch either the injured party or the accused just before or after the injury. It goes to show the state of mind either (or both) party was in.
Second, expect that the court will want to hear from expert witnesses. These witnesses are people who have either the education and training or the experience to work in a job similar to the accused. It allows both sides to establish the type and quality of care that someone should expect under the circumstances like what the plaintiff experienced. The expert testimony from each witness will then be added to the case as evidence, and both sides will get to question the witness while on the stand.
Finally, the court is going to want to see why the injured party needs compensation for what happened. If the negligence was no big deal, then asking for a large amount of compensation is a ploy to get money. However, if the negligence leads to a life-altering injury, then compensation is a natural consequence for the personal injury he or she sustained. There needs to be proof of how this injury made life harder for a guilty verdict and compensation to be the next logical step.
Also, this should only ever be done with legal advice. A medical malpractice attorney is the only way to give the case a realistic chance of making it to the compensation stage. Without the help of an individual attorney or a whole law firm, the chances that an injured party will get more than extra bills at the end are very slim. The South Dakota codified laws are complicated and always changing. They are not meant for a layperson to be able to work with, without some type of formal education and training. That is what lawyers are for.
What Health Care Professionals Could Face Malpractice Charges?
There are more types of malpractice than most people realize. It is more than just one doctor making a bad choice and injuring a patient. Instead, it can happen from nearly any medical provider. Just some of the more basic types of malpractice include:
- Surgical error malpractice.
- OB/GYN malpractice.
- Orthopedic malpractice.
- Chiropractor malpractice.
- Dental malpractice.
- Psychiatric malpractice.
Nearly any health care professional, no matter their specialty, can be a perpetrator of malpractice, willingly or accidentally. Some of the medical professionals that face malpractice charges include:
- Social Workers
- Physical Therapists
Also, it does not only happen at hospitals. It can happen anywhere that a person may seek medical care from any type of health care provider, including:
- Medical Clinics
- Testing Centers
- Surgical Centers
- Retirement Facilities
- Nursing Homes
- Hospice Facilities
- Drug Store Clinics
- Dental Offices
- Massage Parlors
- Parking lots for any of these facilities
Who Can File a Medical Malpractice Case?
In some cases, such as wrongful death, the injured party is no longer here to file a case on his or her own behalf. In those cases, a loved one needs to file the case to help pay for the bills and leftovers for that person’s estate. The laws are pretty simple on who can file a claim.
- The spouse of the deceased has the first right to file a claim.
- If no spouse exists, the children can file next.
- If the deceased had no spouse or children, it becomes the parent’s right.
- If there was no spouse, no children, and the parents are deceased, it then goes to the siblings and then to the grandparents.
In these cases, the person may file a lawsuit for the wrongful death of their family member. The case can still go after damages for all bills left that stemmed from the injury, as well as the loss of that person under the non-economic category. If the family is unsure of what can be filed or what needs to be proven, the best method is to get advice from a South Dakota medical malpractice lawyer.
Do South Dakota Medical Malpractice Lawyers Really Make a Difference?
The short answer is yes. A medical malpractice lawyer can make a huge difference when it comes to going to court. Whether the malpractice case is against a Dakota Falls chiropractor or a Rapid City dentist, the injured party does not want to go into court alone. Not only do judges take what a lawyer says more seriously, but so do insurance companies. They see a layperson walking into court, and they know they can be aggressive about keeping their money. However, they see an experienced attorney walk into court, and they have to look to see what type of settlements the attorney is known for receiving.
The trick is finding a lawyer who only works in practice areas that involve medical malpractice. The best way to do that is to question the attorney and get a feel for the type of attorney-client relationship that is possible. Here are some questions that can help get the process started:
- How busy is this attorney, or does he or she have an opening in the schedule?
- How long does this attorney believe the process will take from filing to a verdict?
- Does the attorney believe there is a case based on the preliminary evidence?
- Does the attorney think that some type of compensation could be had based on the early evidence?
- Will the attorney travel to meet the injured party? For example, if the attorney needs a signature, would the attorney drive to a Dakota Falls residence, or expect the injured party to drive to the office?
- Does the attorney know how much time is left on the medical malpractice statute of limitations before the case is no longer eligible to be filed?
- How much experience does the attorney have with medical malpractice lawsuits?
- Does the attorney have any personal medical knowledge that would help him or her understand and prosecute the case?
- How many malpractice cases has this attorney personally tried and what were the end verdicts?
- Is there any conflict of interest with the health care provider accused of inflicting this injury?
- Does the attorney understand what happened to cause the injury, and would he or she be able to explain it to a judge and jury?
- Who will be the person most in communication with the injured party, the lawyer or a person on his or her staff?
- How do the attorney’s fees work, are any of the payments due up front? Are there any fees that the firm will not cover that the injured party would need to come up with?
Having the Help of a South Dakota Malpractice Lawyer Adds Many Benefits
Trying to go into court alone is scary and stressful to most without any formal training or education on how to behave in court. Instead of letting the stress and all of its effects get overwhelming, the injured party can rest and focus on healing if an experienced attorney is in charge of the case. Here are some of the benefits that an attorney can bring to the case for the injured party:
- Objectivity: The attorney can look at the case as numbers and facts, which is what courts want. The injured party’s emotions are likely jaded, so they must be kept out of court proceedings.
- Fearlessness: Insurance companies work off of fear. The more fear they can instill into the injured party, the more money they get to keep. By hiring a lawyer, an insurance company has someone against them who knows how to push back and get what is in the best interest of his or her client.
- Honesty: An attorney can look at the evidence and hear a story and give his or her honest opinion about where this case will go, if anywhere. They know how the courtroom works, and in some cases, it just does not work.
- Understanding: An attorney understands the nuances of court. They know what is required of them and when everything needs to be filed. This is not something the injured person should add to his or her already full plate.
- Large Networks: Nearly all attorneys have a network of people they can turn to for help. It could be a paralegal who can file paperwork or an investigator who can pull medical records when necessary.
- Medical Assistance: Nearly all attorneys have some type of medical professional that he or she can talk with. This lets the attorney get a medical understanding of what happened and get a breakdown that will be easy for the judge and jury to digest.
- Communication: When hiring an experienced attorney, the injured party gets someone who will talk to whoever needs talking to, to get the settlement that his or her client needs to be all right. The attorney knows how to speak to the court and to the insurance company when necessary while remaining focused on the client’s needs.
- Negotiation Power: Whether the attorney is negotiating a settlement or trying to convince a judge that a piece of evidence is necessary to show the accused was not acting in the patient’s best interest, having the power to negotiate in court is huge.
- Realistic Goals: Hiring an experienced attorney gives an injured party a much better idea of what possible goals are for the case over an attorney with no experience. Since the attorney has been in this situation before, he or she can give an estimate of settlement and time frame that an inexperienced attorney would only be able to guess at.
Filing a case of medical malpractice in South Dakota is not easy, but it is worth it. No one should have to suffer from some type of injury that someone else caused without being able to get some type of compensation to make healing a little easier. Whenever an injury occurs, someone should be held accountable. It does not matter if it is the biggest doctor that Dakota Falls has ever seen or the newest nurse in Rapid City – everyone needs to be held to the same standard. For anyone that is struggling with the effects of medical negligence, know that there is help out there. It just takes finding the right team of people to fight for what is right.