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In the medical field, the patient-doctor relationship is built on trust. However, this trust may be broken if the physician commits a mistake or error in their duties as healthcare providers. This act of medical malpractice may not only cause physical injury to the patient but also leave emotional and financial burdens on their families. Furthermore, this unfortunate circumstance can significantly affect medical professionals, particularly in terms of their reputation and legal liability. 

Like in many other jurisdictions, South Dakota seeks to strike a careful balance between upholding fair and reasonable standards for healthcare practitioners and safeguarding the rights of patients in medical malpractice lawsuits. 

According to the National Practitioner Data Bank, South Dakota saw 2,495 adverse action reports and 892 medical malpractice reports from 1990 to September 2023. In 2022, $7.02 million was paid out for medical malpractice cases in South Dakota, making it one of the states that recorded lower payouts compared to other states.

South Dakota has also imposed a cap on damages for medical malpractice claims to help lessen the strain on medical practitioners, a topic that we will delve into further in the following sections. According to Becker's ASC Review, this factor helped South Dakota earn a spot in the top 10 states for doctors to practice in, which cited a Medscape study by Shelly Reese. 

More information about the scope of medical malpractice and how to pursue legal action will be discussed in this article.

What Qualifies as Medical Malpractice in South Dakota?

Medical malpractice and medical negligence are legal terms that are commonly used interchangeably but have distinct meanings. In South Dakota, "medical malpractice" refers to any action by a healthcare professional that directly harms or injures a patient. Meanwhile, medical negligence has a broader definition that encompasses any deviation from the standard of care.  

In South Dakota, not all errors or cases of carelessness on the part of medical professionals qualify as compensable medical malpractice. In a similar vein, injuries sustained after receiving medical care would entitle an individual to monetary damages. Proving causation is essential in the state; to establish a valid claim, the plaintiff must prove that the negligence directly caused injury to the patient.

Some of the types of medical malpractice cases that are heard in court are:

  • Misdiagnosis of patients based on faulty test results.

  • Failure to conduct proper or needed diagnosis.

  • Prescription mistakes or wrong medication.

  • Surgical errors or surgeries on the wrong side of the body.

  • Birth injuries or malpractice that has caused wrongful death.

  • Incorrect usage of medical equipment.

  • Unsafe premature discharge of a patient.

Who Can You Sue for Medical Malpractice in South Dakota?

An injured patient in South Dakota may bring a medical malpractice claim against various healthcare providers or professionals, such as:

  • Medical doctors.

  • Surgeons.

  • Nurses.

  • Physical therapists.

  • Chiropractors.

  • Mental health professionals.

Entities such as hospitals, practitioner’s corporations, limited liability company employers, and limited liability partnerships can also be held responsible. 

According to the Supreme Court of South Dakota, demonstrating negligence in medical malpractice cases usually requires expert testimony from a non-party physician since laypersons are not qualified to evaluate medical elements. However, this prerequisite is not always necessary, particularly if the facts can be comprehended by anyone with a basic understanding of the matter. 


The state follows South Dakota Codified Laws §20-9-4.1, which grants immunity from liability to people who render emergency care or services. These individuals could be first aid providers, rescue or emergency squad personnel, volunteers, or police or fire department officers.

Under the law, they are not held responsible for civil damages when responding to a situation they reasonably believe to be urgent through their sincere efforts to offer emergency care. 

Medical Malpractice Liability Insurance Requirements 

Even with South Dakota’s favorable litigation setting, it is still important to protect one’s practice and personal interests by carrying medical malpractice insurance. 

Physicians and surgeons in South Dakota typically receive various malpractice insurance rates. Relatively, there are not many significant claims, which helps lower expenses for the policy. There is no specific minimum amount of medical malpractice insurance required by the state. Still, medical professionals or doctors typically carry $1 million to $3 million in liability limits. 

Medical specialties significantly influence the cost of insurance. High-risk healthcare providers or professionals like surgeons may face higher insurance rates compared to those in lower-risk fields.

What Is the Statute of Limitations in South Dakota for Medical Malpractice Cases?

In accordance with South Dakota Codified Laws §15-2-14.1, individuals who have sustained injuries due to medical negligence may file a lawsuit against a negligent healthcare provider within two years after the alleged malpractice. The injured party can no longer file a claim in South Dakota courts once the specified timeframe passes. Awareness of the statute of limitations for medical malpractice claims is crucial for plaintiffs to avoid forfeiture of their opportunity to demand compensation from responsible parties.

Discovery Rule

The statute of limitations may change depending on different factors, such as the discovery of the injury. Plaintiffs may fail to discover or recognize a medical condition resulting from the doctor’s negligence or malpractice after a certain period. This is why, in some cases, the statute of limitations in South Dakota starts from the time the plaintiff finds out or should have found out that they have incurred injuries or health complications. 

What Do You Need to Prove in a South Dakota Medical Malpractice Case?

Some of the essential components that establish a compensable claim in South Dakota are:

  • Breach of duty or violation of the standard of care of a healthcare provider.

  • Standard of care which is the set of rules or duties that healthcare providers must follow.

  • Causation, or the link between the breach and the harm that occurred. 

Some states, like South Dakota, follow the I’m Sorry Law or Apology Law. This rule gives physicians protection when they offer an apology for the injuries their patients incurred, ensuring that these statements cannot be used against them in court. As per South Dakota Codified Laws §19-19-411.1, if a doctor expresses regrets or apologizes for the adverse results of a treatment or procedure, the statement is not considered admissible in court.

However, this protection for medical practitioners is not absolute; a doctor outright admitting fault, for instance, can still be implicated. Determining fault based on the I’m Sorry Law can be complicated and may require the legal expertise of a medical malpractice attorney.

How Much Can You Sue for Medical Malpractice in South Dakota?

Medical malpractice claims in South Dakota may vary depending on several factors, and there is no specific total amount one can sue for. The damages that can be awarded to plaintiffs in a medical malpractice case may include compensation for medical costs, lost income, and pain and suffering. 

There are several factors that may affect the amount of recompense one may obtain. These include:

  • The type of malpractice.

  • Severity of injury.

  • Cost of treatment and future expenses.

  • The age of the injured patient.

  • Witness statements.

  • Evidence presented.

From 2021 to 2022, an increasing trend of medical malpractice reports and payments was observed in the state. NPDB recorded 15 malpractice reports in 2022, a notable rise from 2021’s 11 reports. In that event, the payouts also established an upward trend, from $2.92 million in 2021 to $7.02 million the next year.

Types of Damages

There are 30 states, including South Dakota, that implement restrictions or limits on the maximum amount of damages that may be awarded to plaintiffs in medical malpractice cases. The goal of this action is to alleviate the burden medical providers or experts bear as a result of what they consider to be disproportionate awards in medical negligence cases. 

According to South Dakota Codified Laws §21-3-11, non-economic damages in medical malpractice lawsuits in South Dakota are capped at $500,000; however, economic damages have no specified limit. Furthermore, a judge may order payments in installments rather than in one lump sum if future costs awarded total more than $200,000. 

This cap on damages in South Dakota also encourages healthcare providers from other states to consider practicing their profession in the state. 

Negligence System

In an unconventional manner, South Dakota implements a mixed approach to contributory and comparative negligence systems. This is known as the “slight or gross negligence comparative” law, which states that someone can only receive compensation if their fault is considered "slight" and the other party’s fault is “gross.” This approach differs from that in other states, where parties are assigned a specific percentage of fault. 

If it is unclear which parties have “slight” and “gross” fault in a case, the law prevents the suing party from obtaining damages from the defendant. 

Methods of Obtaining Compensation

Injured parties or families of the victims of medical malpractice may file a lawsuit against the liable healthcare provider to seek justice and rightful recompense. Once the lawsuit is filed, the litigation begins. To evaluate the amount of damages the plaintiffs may receive, the injured party may hire a medical specialist to conduct evaluations and gauge the allegation's veracity. 

When applicable, most of the courts in South Dakota encourage alternative methods, such as mediation, for settling disputes. Mediation helps both parties explore other options, find a suitable course of action, and reach a mutually agreeable arrangement.

How Much Does It Cost to Pursue a Medical Malpractice Case in South Dakota?

When considering a medical malpractice case, people are more concerned about the costs of the case, namely the expenditures of the lawyer, expert witnesses, and the court system. Typically, legal fees for lawyers are the highest. On the other hand, those who take on legal matters without a lawyer may wind up having to pay more than those who do. This is also the reason why plaintiffs need to look for a medical malpractice lawyer or firm that can provide the services they need. 

In medical malpractice cases in South Dakota, lawyer’s fees are typically paid on a contingency fee basis. In other words, the full cost of the attorney’s representation is deducted from the jury award or settlement. Moreover, the lawyer will not receive any payment if there is no recovery. 

There are changes in caps from 10% to 50% of the money recovered in various jurisdictions. This cap varies in accordance with different factors, such as the kind of claim, amount of damages recovered, and case status.

Like other fee arrangements in the state, attorney fees in medical malpractice cases usually adhere to the reasonableness of the criteria as stated in Rule 1.5 of the South Dakota Rules of Professional Conduct.

The lawyer must communicate the scope or costs of the representation, preferably in writing, either before or shortly after the client retains counsel.  

Resources for Medical Malpractice Victims in South Dakota

People impacted by medical negligence in South Dakota must be aware of their legal rights and options since dealing with the fallout may be difficult for them. Victims of medical malpractice or their families are not alone in navigating these trying circumstances, and they have access to the legal system. The legal landscape offers victims of negligence different avenues for pursuing accountability and remedies.

Here are some of the notable legal resources available for medical malpractice victims in South Dakota:

SD Law Help

SD Law Help is an organization that seeks to advance equitable justice by providing legal assistance and education to people whose lives are adversely impacted by injustices, including victims of medical malpractice or negligence. SD Law Help is a collaborative effort of various organizations and agencies, including East River Legal Services, Access to Justice, Inc., and Dakota Plains Legal Services.

East River Legal Services

The nonprofit legal group East River Legal Services collaborates with SD Law Help in extending free civil legal aid to low-income individuals across 33 counties in eastern South Dakota. It seeks to provide people in the community with equitable access to justice, especially those of the most vulnerable members. These include individuals with disabilities, victims of violence, veterans, and older Americans or seniors. There are 20 employees in ERLS, including attorneys, paralegals, and client advocates. 

Contact Info:
335 N Main Ave., Suite 200, Sioux Falls, SD 57104
Tel: 605-336-9230
Fax: 605-336-6919

Access to Justice, Inc.

Access to Justice is a program under the State Bar of South Dakota that provides legal assistance to people with financial insecurity and those suffering from disabilities. It also aids the elderly, veterans, and survivors of violence and sexual assault. In addition, the group provides residents with a reduced rate for civil legal services if they do not qualify for the pro bono program. The A2J staff members verify the eligibility of each applicant to determine the suitable program for them. Funds for the A2J program are from grants made by the South Dakota Bar Foundation, the South Dakota Commission on Equal Access to the Courts, and the State Bar of South Dakota.

Contact Info:
222 E Capitol Ave., #3
Pierre, SD 57501
Tel: 1-855-287-3510

Dakota Plains Legal Services

Providing legal services since 1974, Dakota Plains Legal Services is a private nonprofit that offers legal assistance to low-income individuals in 33 counties in western South Dakota and all state reservations. The program covers civil legal matters and criminal issues. Serving communities in North and South Dakota, including nine tribal nations, DPLS maintains eight offices:

Eagle Butte Office
P.O. Box 500
Eagle Butte, SD 57625

Tel: 605-964-2175
Fax: 605-964-1215

Pine Ridge Office
P.O. Box 1989
Pine Ridge, SD 57770

Tel: 605-867-1020
Fax: 605-867-1092

Fort Thompson Office
P.O. Box 20
Fort Thompson, SD 57339

Tel: 605-245-2341
Fax: 605-245-2393

Rapid City Office
202 East Saint Joseph St.
P.O. Box 1500
Rapid City, SD 57709

Tel: 605-342-7171
Toll-free: 800-742-8602
Fax: 605-348-5874

Fort Yates Office
P.O. Box 507
Fort Yates, ND 58538

Tel: 701-854-7204
Fax: 701-854-3686

Sisseton Office
P.O. Box 500
Eagle Butte, SD 57625

Tel: 605-698-3971
Fax: 605-698-4156

Mission Office
Administrative Office
160 2nd St.
P.O. Box 489
Mission, SD 57555

Tel: 605-856-4444
Toll-free: 800-658-2297
Fax: 605-856-2075

Sioux Falls ​
1000 NW Avenue
Suite 250
Sioux Falls, SD 57104

Tel: 605-301-8060

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