Noneconomic Damages Cap in South Dakota Has Consequences for Victims of Medical Malpractice

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Could South Dakota become home to doctors guilty of committing serious medical mistakes? Some critics of a 1976 state law say it’s possible.

The South Dakota legislature passed a law almost 40 years ago that capped noneconomic damages in medical malpractice cases at $500,000. These damages include awards for pain and suffering, emotional distress, loss of companionship and other injuries.

But today, victims of malpractice who have experienced significant losses are speaking out against this cap, which would be up to $2 million had it included an inflationary increase.

One such victim was Jennifer Eastman, who had to go to the hospital on Jan. 4, 2013, to have the stillborn fetus she was carrying removed from uterus. As if the loss of the child weren’t devastating enough, Eastman began bleeding profusely while in recovery, and her body went into shock. The doctor who had performed the surgery had perforated her uterus.

A nurse noticed the problem, despite a second doctor’s examination, and Eastman was rushed back into surgery to have her uterus removed.

Eastman grew up with eight brothers and two sisters, and her own dream of having a large family was dashed when she lost her child and uterus on the same day.

In comments left on Facebook for the Argus Leader article, Eastman admitted that she still suffers to this day from depression, anxiety, night terrors, and post-traumatic stress disorder, all of which she claims have been diagnosed.

But because of the risky medical malpractice case, and the low award amount capped by the state, Eastman, like some other South Dakota residents, was unable to find a lawyer.

Many of the personal injury attorneys in the state are actually turning victims away because the cases aren’t worth fighting.

Because lawyers take the cases on contingency and front the costs, they are only paid if the victim receives an award or settlement. But that $500,000 maximum doesn’t always cover the hundreds of hours spent contacting expert witnesses and preparing the case.

And if the insurance company sweeps in and takes most of the award, there is sometimes next to nothing left for the victim and lawyer.

Some attorneys have stopped taking medical malpractice cases altogether, despite the fact that at least 80% of such lawsuits have involved serious injury or even death for the victims.

But doctors hold a different view of the cap, saying that it deters frivolous lawsuits.

Dr. Mary Milroy, president of the South Dakota State Medical Association, explained that healthcare providers often live in fear of being sued and worry that a lawsuit can damage their reputations and livelihood.

 

“If people judge South Dakota as a dangerous place with no caps, they may not come here to practice,” Milroy said.

In addition to South Dakota, about 30 other states also have laws that restrict what plaintiffs can recover in noneconomic losses.

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