Statutes of Limitations

IAn action against a physician or hospital for malpractice must be commenced within two years from the date the alleged malpractice occurred. S.D. Codified Laws Ann. § 15-2-14.1 (Michie 1984). The discovery rule is inapplicable in South Dakota medical malpractice actions. Alberts v. Giebink, 299 N.W.2d 454 (S.D. 1980). However, the failure to remove a foreign object is a continuing tort for which the limitations period cannot begin until the end of treatment, id., and the statute may be tolled by other forms of continuing treatment or by fraudulent concealment. Bruske v. Hille, 567 N.W.2d 872 (S.D. 1997). Both minority and mental illness toll the statute, with restrictions. A claim can be brought within one year of the end of either disability, but this cannot be used in the case of mental illness to extend the period for bringing the action more than five years. S.D. Codified Laws Ann. § 15-2-22 (Michie Supp. 1997). A statute that reduced the period for minors, S.D. Codified Laws Ann. § 15- 2-22.1 (Michie 1984), was held to be unconstitutional. Lyons v. Lederle Laboratories, 440 N.W.2d 769 (S.D. 1989).

Every wrongful death action must be brought within three years from the decedent's death. S.D. Codified Laws Ann. § 21-5-3 (Michie 1987). There is not published South Dakota stating whether this period applies to medical malpractice death cases.

Contributory or Comparative Negligence

South Dakota has adopted a modified form of comparative negligence. A claimant's contributory negligence does not bar recovery if the contributory negligence of the claimant was "slight" in comparison to the negligence of the defendant. S.D. Codified Laws Ann. § 20-9-2 (Michie 1995). South Dakota law does not define the term "slight" in terms of a percentage, so it is a question of fact which varies with the facts and circumstances of each case. Estate of He Crow v. Jensen, 494 N.W.2d 186 (S.D. 1992). When a claimant is slightly contributorily negligent, his damages will be reduced in proportion to his own negligence. S.D. Codified Laws Ann. §20-8-2 (Michie 1995).

Joint and Several Liability

South Dakota follows a form of modified joint and several liability. If a defendant is responsible for less than 50 percent of the total fault allocated to all the parties, the defendant may not be jointly and severally liable for more than twice his share of fault. S.D. Codified Laws Ann. § 15-8-15.1 (Michie Supp. 1997).

Contribution

In South Dakota, a right of contribution exists among joint tortfeasors. S.D. Codified Laws Ann. § 15-8-12 (Michie 1984). When such a disproportion of fault exists between the tortfeasors as to render inequitable an equal distribution among them of their common liability, the joint tortfeasors' relative degrees of fault shall be considered for determining their pro rata shares. S.D. Codified Laws Ann. § 15-8-15 (Michie 1984). A settling joint tortfeasor is not entitled to contribution from any joint tortfeasor whose liability to the claimant was not extinguished by the settlement. S.D. Codified Laws Ann. § 15-8-14 (Michie 1984).

Vicarious Liability

South Dakota courts have yet to address whether the principles of ostensible or apparent agency may be used as a means by which to hold a hospital liable for the negligent acts of its independently-contracted physicians.

Expert Testimony

The general rule in South Dakota medical malpractice cases is that negligence must be established by the testimony of medical experts. Magbuhat v. Kovarik, 382 N.W.2d 43, modified 445 N.W.2d. 315 (S.D. 1986). However, the general 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." Id.

Damage Caps

In any medical malpractice action in South Dakota, the total general damages (damages awarded for non-economic injury such as pain and suffering) may not exceed $500,000. S.D. Codified Laws Ann. § 21-3-11 (Michie Supp. 1997). This section formerly provided for a cap of $1,000,000 on all damages, whether economic or non-economic. The cap on all damages, however, was found to violate the state constitution. Knowles v. U.S., 544 N.W.2d 183 (S.D. 1996). The Knowles decision automatically revived the form of the act as it existed prior to being amended in 1985, at which time it provided for a $500,000 cap on general damages. Id. The court also held that the cap applied separately to the personal injury claim of the infant plaintiff and to his parents' claim for medical expenses and loss of services. Id.

Statutory Cap on Attorneys' Fees

South Dakota does not limit the attorneys' fees recoverable in a medical malpractice action.

Periodic Payments

South Dakota provides for periodic payment of judgments. S.D. Codified Laws Ann. §§ 21-3A-1 to 21-3A-12 (Michie 1987 & Supp. 1997). Any party to a medical malpractice action may, within 120 days after service of the complaint, elect to pay or receive a judgment in periodic payments. S.D. Codified Laws Ann. § 21-3A-2 (Michie Supp. 1997). The periodic payment statute is invoked if all parties consent, no timely objection is filed, or a timely objection is filed but the invoking party demonstrates that there is a good faith claim that future damages will exceed $200,000. Id.

Collateral Source Rule

Evidence of collateral source payments to a claimant are admissible in medical malpractice actions when the claimant alleges special damages which were paid or payable by insurance, not subject to subrogation, and not purchased privately by the claimant or paid by governmental programs. S.D. Codified Laws Ann. § 21-3-12 (Michie 1987).

Pre-Judgment Interest

Pre-judgment interest is awarded as a matter of right from the date the loss occurred. However, it is not available for future damages, punitive damages, or intangible damages (pain and suffering, loss of consortium, and so forth). S.D. Codified Laws Ann. § 21-1-13.1 (Michie Supp. 1997). The current rate is ten percent. S.D. Codified Laws Ann. § 54-3-16 (Michie Supp. 1997).

Patient Compensation Funds and Physician Insurance

South Dakota does not have a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.

Immunities

In the absence of a legislative enactment, the State is immune from liability in tort. S.D. Const. Art. III, § 27. South Dakota's sovereign immunity is waived to the extent the State purchases liability insurance. S.D. Codified Laws Ann. § 21- 32-16 (Michie 1987). Sovereign immunity also extends to public entities, unless they carry insurance. S.D. Codified Laws Ann. § 21-32A-3 (Michie 1987). Except to the extent that liability insurance coverage is provided by the state, any employee, officer, or agent of the state is immune from liability for damages based on ministerial or discretionary acts performed within the scope of his employment or agency. S.D. Codified Laws Ann. § 21-32-17 (Michie 1987).

Every personal injury action against the State must be commenced within one year from the occurrence causing the injury or death. S.D. Codified Laws Ann. § 21-32-2 (Michie 1987). Every personal injury action against a municipality must be commenced within two years from the occurrence causing the injury or death. S.D. Codified Laws Ann. § 9-24-5 (Michie 1995).

Arbitration

South Dakota authorizes voluntary arbitration agreements relating to medical services. S.D. Codified Laws Ann. §§ 21- 25B-1 to 21-25B-26 (Michie 1987 and Supp. 1997). The arbitration hearings are composed of two steps. First, the panel determines whether there is liability. Second, if there is liability, the panel gives the parties 30 days to agree on damages. At the end of the 30 days, if the parties fail to agree on damages, the panel reconvenes to determine the amount of damages to be awarded. S.D. Codified Laws Ann. § 21-25B-21 (Michie 1987).