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The Law of Medical Malpractice in South Dakota:

A Survey of Basic Considerations

South Dakota medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in South Dakota are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in South Dakota exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in South Dakota by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of South Dakota medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in South Dakota. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in South Dakota.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in South Dakota?
-Required Elements of a Medical Malpractice Claim in South Dakota
-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in South Dakota
-The Discovery Rule
-The Discovery Rule in South Dakota
-Special Provisions
-Mental Illness
-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery
-Statute of Repose in South Dakota

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Sovereign Immunity in South Dakota
-Good Samaritan Law
-Good Samaritan Law in South Dakota
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading

VI. Expert Medical Witnesses
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony in South Dakota

VII. Comparative Negligence

VIII. Limitation on Noneconomic Damages

IX. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in South Dakota

X. Apologies and Gestures of Sympathy

XI. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in South Dakota?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in South Dakota


It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under South Dakota law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

South Dakota medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are as follows.

  1. Standard of care—applicable standard of care requiring the healthcare provider to conform to certain conduct or level of competence, e., duty;
  2. Breach—a failure on the healthcare provider’s part to conform to the standard required or violation of the standard of care, e., a breach; and
  3. Causation—the causal relationship between the violation or breach of the applicable standard of care and the harm complained of. Mousseau v. Schwartz, 756 N.W.2d 345, 351-352 (S.D. 2008).

The South Dakota Supreme Court instructed that the applicable standard of care for healthcare practitioners is to “use that care and skill ordinarily exercised under similar circumstances by physicians in good standing.” Martinmaas v. Engelmann, 612, N.W.2d 600, 608 (S.D. 2000). The Supreme Court has made it clear that the standard is a national one and has rejected the Locality Rule, which sets the applicable standard by reference to other similar communities within the local area where the defendant practices. Mousseau v. Schwartz, 756 N.W.2d 345, 352 (S.D. 2008).

The Supreme Court refined the applicable standard of care within the South Dakota as follows:

[A] deficit in the degree of knowledge and skill possessed by a practitioner from that ordinarily possessed by other practitioners in the field is not alone sufficient for the fact finder to conclude that the applicable standard of care has not been met. However, that deficit is relevant to that determination in that it goes to the question of whether the practitioner had and used the skill and care which other practitioners in the field commonly possess and use. This is intuitive in that one who does not possess ordinary knowledge and skill cannot apply either in the course of conducting a procedure. [emphasis in original] [internal citation omitted] Id. at 354.

However, when a practitioner holds himself or herself out as a licensed practitioner in a particular field, the practitioner’s alleged failure to possess the degree of knowledge and skill ordinarily possessed by individuals within that field is relevant and admissible as to whether the applicable standard of care was breached. Id.

According to the South Dakota Supreme Court, the “general rule in medical malpractice cases is that negligence must be established by the testimony of medical experts.” Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986). The Court explained that the “reason for the rule is that laymen are not qualified by learning and experience to judge the medical aspects of such cases.” Block v. McVay, 126 N.W.2d 808, 810 (S.D. 1964).

While the general rule requires the use of expert testimony to establish the basic elements of a medical malpractice claim, such testimony is not mandatory in every case. As the Supreme Court instructed, “[w]hen the reason for the rule ceases to exist, the rule no longer applies.” Id. Claims involving facts “where the physician’s or surgeon’s want of skill or lack of care is such that it is within the comprehension of laymen and requires only common knowledge and experience to judge it, expert evidence is not required.” Id. The Supreme Court explained:

For example, if a physician operates on a patient’s knee, testimony of lay witnesses could establish that the wrong knee was treated without indulging in speculation and conjecture or knowledge beyond a layperson’s realm. The rule does not exclude the opinions and conclusions of lay witnesses on subjects which are within the common knowledge and comprehension of persons possessed of ordinary education, experience and opportunity. Magbuhat, 382 N.W.2d at 46.

A medical malpractice plaintiff must also prove by a preponderance of the evidence under state law that the breach of the applicable standard of care was a cause or proximate cause of his or her injury. Hertz Motel v. Ross Signs, 698 N.W.2d 532, 535 (S.D. 2005). The South Dakota Supreme Court explained that a legal or proximate cause refers to a cause which, in the natural and probable sequence, results in the injury complained of. Id. at 537. In addition, in order to establish a legal or proximate cause under South Dakota law, the injury sustained must be a foreseeable consequence of the act or omission complained of. Zarecky v. Thompson, 634 N.W.2d 311, 316 (S.D. 2001). That is, the defendant cannot be held liable based on mere speculative possibilities or circumstances and conditions only remotely connected to the sequence of events leading up to an injury. Id. Thus, the “defendant’s conduct must have such an effect in producing the harm as to lead reasonable people to regard it as a cause of the plaintiff’s injury.” Wierzbicki v. United States, 32 F.Supp.3d 1013, 1025 (Dist. Ct. D. S.D. 2014).

A proximate cause does not have to be the sole cause or even the last or most recent cause. Id. “It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the injury.” Id. But for it to be considered the proximate cause, it must be a “substantial factor in bringing about the harm.” Zarecky, 634 N.W.2d at 316.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in South Dakota

In general, medical malpractice claims in South Dakota are subject to a two-year statute of limitations contained inSouth Dakota Codified Laws(“SDCL”)§ 15-2-14.1. It provides that:

An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake, or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred….

Notice that two-year limitations period begins to run at the time of the alleged negligence. The South Dakota Supreme Court refers to the medical malpractice statute of limitations as an “occurrence rule” form of statute. Peterson, ex rel. Peterson v. Burns, 635 N.W.2d 556, 563 (S.D. 2001). Under the statute, the “cause of action for medical malpractice accrues [begins to run] when the malpractice occurs.” Id. The Supreme Court explained:

Our decision treats all medical malpractice plaintiffs the same. Applying the two-year medical malpractice statute of limitations from the date of the alleged malpractice, whether the action is for personal injury or death, is consistent with the Legislature’s policy to limit the exposure of medical providers to liability for malpractice. All plaintiffs are allowed two years whether they live or die. SDCL 15-2-14.1. I f the plaintiff cannot bring the action within two years, the plaintiff is barred by the medical malpractice statute of limitations. Id.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under South Dakota law in calculating the exact date the applicable limitations period ends. SDCL § 15-6-6(a) sets forth how time is calculated under South Dakota law. It instructs:

In computing any period of time prescribed or allowed by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation….

Service by facsimile and electronic mail transmission must be completed by 5:00 p.m., receiver’s time, on a weekday, which is not a legal holiday, or service shall be deemed to be made on the following weekday, which is not a legal holiday.

Once the date on which the two-year limitations period begins to run is known, the exact date the limitations period ends can easily be calculated by applying the foregoing rules for the computation of time.

The Discovery Rule


Nearly every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in South Dakota

South Dakota is one of the few states that currently does not recognize the Discovery Rule. Up until 1976, the applicable statute of limitations governing medical malpractice claims was subject to the Discovery Rule. Peterson, 635 N.W.2d at 563. The Supreme Court explained: “In 1976, the Legislature repealed the discovery rule statute and enacted the current occurrence rule statute…. Since that time, this Court has consistently recognized that the current medical malpractice statute of limitations is an occurrence rule and has rejected a discovery rule.” Id.

The South Dakota Supreme Court has been invited to recognize the Discovery Rule on several occasions over the years and has declined to do so each time. The Court discussed its refusal as follows:

The statute of limitations runs from the date of the breach of duty and not from the time when the extent of the resulting injury is determined. Although this issue has been addressed numerous times by this Court, the Legislature has not amended either statute at issue here to reflect anything but a rule of occurrence in legal malpractice actions. If a discovery or damages rule is the appropriate basis to trigger the running of the statute, such arguments should be presented to the Legislature for its consideration as to what is the appropriate public policy for this State. [internal citations omitted] Green v. Siegel, Barnett & Schutz, 557 N.W.2d 396, 404-405 (S.D. 1996).

Although the Discovery Rule is not recognized in South Dakota, the Supreme Court does permit the statute of limitations to be tolled in cases involving fraudulent concealment. Peterson, 635 N.W.2d at 571. Similarly, the Supreme Court instructed that the medical malpractice statute of limitations “does not begin to run when there is continuing treatment.” Id. Recognition of these two doctrines helps blunt the harshness of not recognizing the Discovery Rule to a limited extent.

Special Provisions


Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. SDCL § 15-2-22 tolls the applicable statute of limitations for potential plaintiffs who were minors (younger than 18 years of age) at the time of the medical malpractice. The statute states that “the time of the person’s disability is not a part of the time limited for the commencement of the action.” Id. For purposes of the statute, being younger than 18 years old is considered a legal disability.

The statute further states: “The period within which the action shall be brought cannot be extended more than five years by any disability except infancy [being a minor], nor can it be extended in any case longer than one year after the disability ceases.” Id. Accordingly, a plaintiff who was a minor at the time of the negligence upon which a claim is based must commence a medical malpractice action within one year after turning 18 years of age.

Mental Illness

Like with actions involving minors, persons suffering from the legal disability of being mentally ill are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims.SDCL § 15-2-22. It provides that if the plaintiff is mentally ill at the time the claim accrues the statute of limitations is tolled until the disability is removed. Id. However, the statute of limitations cannot be tolled for more than five years due to mental illness. Id. The plaintiff must commence a medical malpractice action within one year after the legal disability of mental illness is removed. Id.

Final Thoughts

The application of South Dakota’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced South Dakota medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an South Dakota attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery


Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in South Dakota

According to the South Dakota Supreme Court, the medical malpractice statute of limitations in SDCL § 15-2-14.1 itself is actually a statute of repose. Peterson, 635 N.W.2d at 571. The Court explained:

The Legislature has consistently limited the time during which medical practitioners are exposed to suits for malpractice and limited the damages available. As a matter of clear public policy, the Legislature has protected doctors from lawsuits by their patients and has diligently maintained the special considerations given to medical practitioners. The policy of the Legislature is clearly to make SDCL 15-2-14.1 a statute of repose. We recognize this policy and will not deviate from it. We hold that SDCL 15-2-14.1 is a statute of repose. If the policy is to be changed, the Legislature, not this Court, should make the change. Id.

IV. Immunities and Limitations on Liability

Sovereign Immunity


Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in South Dakota

In general, South Dakota and its political subdivisions have waived sovereign immunity with respect to tort actions to the extent provided for in Chapter 21-32—Remedies Against the State and Chapter 21-32A—Remedies Against Public Entities. The Chapters set forth detailed rules associated with filing suit against the State, its political subdivisions, and employees. The rules governing suits against the government are quite complex and technical. A full discussion of them is well beyond the scope of this article, but some of the major provisions will be highlighted.

The South Dakota Supreme Court discussed the history of the Chapters and key provisions of the legislation as follows:

In 1981, the legislature enacted SDCL 21-32-15 and 21-32-16 authorizing the State of South Dakota to purchase public liability insurance. State waived sovereign immunity and consented to suit up to the insurance policy limits. In 1983, the legislature enacted SDCL 21-32-17, expanding the scope of sovereign immunity, except as waived under SDCL 21-32-16. This expansion broadened immunity to all officers, employees, or agents of the State, acting within the scope of their employment, whether or not they were performing ministerial or discretionary functions.

In 1985, when the State was notified that its public liability insurance was cancelled, the governor requested an advisory opinion regarding the constitutionality of SDCL 21-32-17 if the State were to establish its own fund to pay claims. This court held the legislature could act within the broad authority of Art. III, § 27, of the South Dakota Constitution to impose limitations and conditions of the operation of sovereign immunity. In rendering its decision, however, the court limited its consideration to the sovereign immunity doctrine under Art. III, § 27. The “open courts” provision was not addressed in this opinion.

This court further held the state’s participation in a risk-sharing pool did not waive sovereign immunity under SDCL 21-32-16, because, although self-insurance through a risk-sharing pool may accomplish the same purpose as commercial insurance, the plain language of the above statute required the purchase of traditional liability insurance. Thus, unless such traditional insurance was purchased, SDCL 21-32-15 and 21-32-17 provide absolute sovereign immunity to “any employee, officer or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary.” Immunity existed regardless of whether the employee was sued in an individual or official capacity.

In 1986, the legislature enacted SDCL 21-32A-1, -2, and -3, establishing the procedure for bringing claims against public entities, other than the state, and waiving immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance. In 1991, SDCL 21-32A-2 was amended to include the state, and its “employees, officers, or agents,” in its statutory waiver of sovereign immunity to the extent of participation in a risk-sharing pool or purchase of insurance. Chapter 3-22, enacted in 1986, established the public entity pool for liability (PEPL). It is presumed this fund was established as a substitute for traditional liability insurance.

SDCL 3-22-18 provides that “PEPL does not constitute insurance” but is instead a liability pool. The PEPL fund’s purpose is to provide “the sole source for payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee’s scope of employment[.]” The PEPL fund provides no payment for, among other things, “non-economic damages, including, but not limited to, damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, and hedonic damages[.]” Under the current statutory scheme, unless a claim falls within PEPL fund coverage, the doctrine of sovereign immunity applies to abrogate that claim. Kyllo v. Panzer, 535 N.W.2d 896, 899-901 (S.D. 1995).

The statute of limitation for a filing an action against the State is one year from the date giving rise to the claim. SDCL § 21-32-2.

Good Samaritan Law


The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in South Dakota

South Dakota has enacted a general Good Samaritan law that is codified in SDCL § 20-9-4.1. The statute provides immunity from civil damages for individuals who render emergency care, in good faith, for those in need. It states:

No peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person is liable for any civil damages as a result of their acts of commission or omission arising out of and in the course of their rendering in good faith, any emergency care and services during an emergency which is in their judgment indicated and necessary at the time. Such relief from liability for civil damages extends to the operation of any motor vehicle in connection with any such care or services.

However, South Dakota’s Good Samaritan law does not provide immunity to “any person causing any damage by his willful, wanton or reckless act of commission or omission.” Id. Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to willful, wanton, or reckless conduct.

South Dakota also has enacted a separate Good Samaritan law specifically covering healthcare professionals. SDCL § 20-9-3 states:

No physician, surgeon, osteopath, physician assistant, registered nurse, or licensed practical nurse, licensed under the provisions of chapters 36-4, 36-4A, and 36-9, who in good faith renders, in this state, emergency care at the scene of the emergency, shall be liable for any civil damages as a result of any acts or omissions by such person rendering the emergency care.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the South Dakota Codified Laws. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Chapter 20-9—Liability for Torts.

V. Required Elements of a Medical Malpractice Complaint

Basic Elements

In South Dakota, there is only one recognized form of action, and it is known as a “civil action.” SDCL § 15-6-2. By statute, the “distinction between actions at law and suits in equity, and the forms of all such actions and suits, are abolished” in South Dakota. Id.

According to SDCL § 15-2-30, an “action is commenced as to each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him.” SDCL § 15-6-4(a) states:

The summons shall be legibly subscribed by the plaintiff or his attorney and shall include the subscriber’s address. It shall be directed to the defendant, and shall require him to answer the complaint and serve a copy of his answer on the subscriber at the subscriber’s address within thirty days after the service of the summons, exclusive of the day of service, and shall notify him that in case of his failure to answer, judgment by default may be rendered against him as requested in the complaint.

A complaint is one type of pleading allowed under South Dakota law. SDCL § 15-6-7(a). Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.

Under SDCL § 15-6-8(a), a complaint must contain (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief, and (2) a demand for judgment for the relief to which the plaintiff deems himself or herself entitled. In addition, relief in “the alternative or of several different types may be demanded.” Id.

Each allegation in the complaint “shall be simple, concise, and direct. No technical forms of pleading or motions are required.” SDCL § 15-6-8(e). The plaintiff “may set forth two or more statements of a claim … alternatively or hypothetically, either in one count … or in separate counts….” Id. The plaintiff “may also state as many separate claims … as he has regardless of consistency and whether based on legal or on equitable grounds or on both.” Id. SDCL § 15-6-8(f) provides that the complaint “shall be so construed as to do substantial justice.”

The complaint must contain a caption “setting forth the name of the court and the county in which the action is brought, the title of the action, and a designation as” a complaint. SDCL § 15-6-10(a). The title of the action “shall include the names of all the parties.” Id. All allegations of claim “shall be made in number paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” SDCL § 15-6-10(b). “Each claim founded upon a separate transaction or occurrence … shall be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.” Id.

According to SDCL § 15-6-10(e), the format for complaints must follow the following provisions:

All pleadings, motions, orders and other papers filed with the court, with the exception of exhibits, shall be typewritten or hand printed in a clear and legible manner, no smaller than 12 point type; on one side only of white, unglazed, opaque paper of good texture, eight and one-half inches wide and eleven inches long; and consecutively numbered at the bottom center of each page.

The complaint “shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.” SDCL § 15-6-11(a).

Notice Pleading

South Dakota is a notice pleading state. Gruhlke v. Sioux Empire Federal Credit Union, 756 N.W.2d 399, 409 (S.D. 2008). According to the South Dakota Supreme Court, “a complaint need only contain a short and plain statement of the claim showing that the pleader is entitled to relief.” [internal quotation marks omitted] Id. The Supreme Court instructed: “Under notice pleading, a case consists not in the pleadings, but the evidence, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.” St. Pierre v. State ex rel. S.D. Real Estate Commission, 813 N.W.2d 151, 157 (S.D. 2012).

However, the Supreme Court cautioned that while a complaint need not contain detailed factual allegations the plaintiff’s obligation to provide the basis of his or her claim for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action….” Gruhlke, 756 N.W. 2d at 409 (quoting Sisney v. Best, 754 N.W.2d 804, 808 (S.D. 2008)). That is, “the complaint must allege facts, which, when taken as true, raise more than a speculative right to relief.” Id.

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses


The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is SDCL § 19-19-702. It provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The Testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.” Id.

According to the South Dakota Supreme Court, trial courts are responsible for determining whether a witness qualifies as an expert and whether the expert’s knowledge will assist the trier of fact to help understand the evidence or to determine a fact in issue. Klutman v. Sioux Falls Storm, 769 N.W.2d 440, 449 (S.D. 2009). Whether a witness qualifies as an expert with respect to a specific issue “is not determined based solely on the attainment of specific titles or degrees, [but] it is a factor.” Id. The Supreme Court instructed that under the statute, “an expert is not limited to testifying only upon those areas in which he or she has received formal training.” Nickles v. Schild, 617 N.W.2d 659, 661 (S.D. 2000). “Rather, when giving an opinion, an expert is allowed to draw upon all the knowledge, skill, or experience that he or she has accumulated.” Id.

Trial courts have broad discretion in determining whether a witness qualifies as an expert and the admissibility of expert testimony. State v. Barber, 552 N.W.2d 817, 823 (S.D. 1996). On appeal, the trial court’s determination will only be reversed upon “a clear showing of abuse of that discretion.” Id.

Admissibility of Expert Testimony


Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in South Dakota

The admissibility of expert testimony is governed by SDCL § 19-19-702. It provides: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The Testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.” Id.

The South Dakota Supreme Court adopted the Daubert test for determining the admissibility of scientific and other expert evidence. State v. Hofer, 512 N.W.2d 482 (S.D. 1994). According to the Supreme Court, after its adoption of the Daubert test, general acceptance within the scientific community is no longer required for the admissibility of expert testimony; instead, trial courts must simply determine whether an expert’s proposed testimony is based upon a reliable foundation and is relevant to the issue under consideration. Id.

When ruling on the admissibility of expert testimony, trial courts must exercise its gatekeeping function. Rogen v. Monson, 609 N.W.2d 456, 459 (S.D. 2000). The trial courts’ gatekeeping function entails ensuring that experts’ opinion meets the prerequisites of relevance and reliability prior to admission into evidence. Reinfeld v. Hutcheson, 733 N.W.2d 284, 292 (S.D. 2010). The Supreme Court stated: “A fundamental baseline for reliability is that experts are limited to offering opinions within their expertise.” Garland v. Rossknecht, 624 N.W.2d 700, 703 (S.D. 2001).

VII. Comparative Negligence

South Dakota utilizes a unique form of comparative negligence codified in SDCL § 20-9-2. What makes its treatment of comparative negligence unique is that recovery is barred if the plaintiff’s contributory negligence is “more than slight” in comparison to the negligence of the defendants. Wood v. City of Crooks, 559 N.W.2d 558, 560 (S.D. 1997). The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:

In all actions brought to recover damages for injuries to a person or to that person’s property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant….

Other states that utilize comparative negligence provide that (1) no amount of negligence by the plaintiff may bar recovery (pure comparative negligence), (2) plaintiff barred from recovery if his or her negligence is 50% or greater in comparison with the defendants (50% bar rule), or (3) plaintiff barred from recovery if his or her negligence is 51% or greater in comparison with the defendants (51% bar rule). Whereas, the bar to recovery in South Dakota is measured by whether the plaintiff’s own negligence is “more than slight” vis-à-vis the defendants.

The South Dakota Supreme Court explained the process of determining whether a plaintiff’s negligence is “more than slight.” Westover v. East River Electric Power Cooperative, Inc., 488 N.W.2d 892, 897 (S.D. 1992). According to the Court, the “question of a plaintiff’s contributory negligence is a two-step inquiry.” Id.

The first step of the … analysis is a determination of whether the plaintiff and the defendant were negligent. If either is found to be not guilty of negligence, there can be no application of the comparative negligence law. In making such a determination, the expected standard of conduct, that being a reasonable and prudent person, is the basis to determine if either or both the plaintiff and defendant fell below that required level of behavior. The greater the danger, the greater the care required so that a very high degree of danger calls for a very high degree of care which, however, amounts to ordinary care in view of the situation and circumstances.

If both are found to be negligent, the second step of the process requires that the negligence of the plaintiff must be compared to the negligence of the defendant. If it is determined that a plaintiff has committed negligence more than slight, the plaintiff cannot recover. In making such a determination there is a direct comparison between the conduct of the plaintiff and the defendant rather than to the standard of the reasonable person. [internal citations and quotation marks omitted] Id.

The test articulated by the Supreme Court does little to provide much clarity as to what constitutes “more than slight.” In one leading comparative negligence case decided by the South Dakota Supreme Court, the Court held, as a matter of law, that plaintiff’s contributory negligence was more than slight where the plaintiff was 30% negligent and the defendants were 70% negligent. Wood, 559 N.W.2d at 560-561. However, that still provides very little usable guidance for courts and parties, which likely helps explain why South Dakota is the only state in the entire country that utilizes the “more than slight” formulation of comparative negligence.

Comparative negligence is a fault and damages allocation system. Under South Dakota law, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. SDCL § 20-9-2. The statute provides that “the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.” Id.

For example, if the trier of fact determines that the plaintiff is 10% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 10%. As a result, the maximum amount the plaintiff can receive is 10% of the total monetary recovery. Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 10% of that amount or $10,000.

Under South Dakota law, contributory negligence is an affirmative defense in a medical malpractice action. Dodson v. South Dakota Department of Human Services, 703 N.W.2d 353, 355 (S.D. 2005). Since contributory negligence is an affirmative defense, the defendant bears the burden of proof by a preponderance of the evidence in establishing that the plaintiff’s negligence was more than slight. Johnson v. Armfield, 672 N.W.2d 478, 481 (S.D. 2003).

VIII. Limitation on Noneconomic Damages

South Dakota law imposes a $500,000 limit on the amount of noneconomic damages that can be recovered in a medical malpractice action. SDCL § 21-3-11. The statues states in pertinent part:

In any action for damages for personal injury or death alleging malpractice against any physician licensed pursuant to chapter 36-4, chiropractor, optometrist, podiatrist, dentist, dental hygienist, dental assistant, hospital, critical access hospital, registered nurse, licensed practical nurse, certified registered nurse anesthetist, clinical nurse specialist, certified nurse practitioner, certified nurse midwife, or physician’s assistant, or against the practitioner’s corporate, limited liability partnership, or limited liability company employer based upon the acts or omissions of the practitioner, under the laws of this state, whether taken through the court system or by binding arbitration, the total general damages which may be awarded may not exceed the sum of five hundred thousand dollars.

Noneconomic (or general) damages include pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.

By statute, South Dakota does not impose any cap on economic damages. SDCL § 21-3-11 provides: “There is no limitation on the amount of special damages which may be awarded.” Special damages are simply another term for economic damages, which include items such as medical bills, cost of medication, wages lost due to inability to work, and other out-of-pocket items.

It should be noted that the South Dakota Supreme Court held that SDCL § 21-3-11’s predecessor statute that capped noneconomic damages in medical malpractice cases at $1,000,000 was unconstitutional. Knowles v. United States, 544 N.W.2d 183, 187-188 (S.D. 1996). The Supreme Court held that “the damages cap violates the right to a jury trial under South Dakota Constitution article VI, § 6.” Id. In 2006, the South Dakota Legislature passed SDCL § 21-3-11, which appears to be substantially similar to its predecessor. As of the date of this article, the current damage cap on noneconomic damages has not yet been challenged in the Supreme Court.

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in South Dakota

South Dakota law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in South Dakota under Rule 1.5 of the South Dakota Rules of Professional Conduct. Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable amount for fees or expenses. The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

Rule 1.5(b) also requires that the “scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.”

Rule 1.5(c) provides that a “contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” In addition, the “agreement must clearly notify the client of potential expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Rule 1.5(c).

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

South Dakota is among the states that have enacted an “I’m Sorry” law. It is contained in SDCL § 19-19-411.1 and is specific to healthcare providers. The statute shields healthcare providers who communicate statements of apology for an adverse result following medical treatment by making such communications inadmissible to prove negligence in a medical malpractice action. The statute reads as follows:

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 personal injury or death alleging malpractice against any health care provider.

Although expressions of apology may not be used as evidence of negligence in a medical malpractice suit, experienced medical malpractice lawyers in South Dakota understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XI. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

[1]In fact, only Nevada, North Dakota, and Virginia do not follow the factors in either the Frye or Daubert standard. For a state-by-state comparison, see