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Your Milbank Medical Malpractice Attorney
When medical care in Milbank goes wrong, the harm is physical, financial and personal at once, and it is hard to know whether what happened is a legal claim.
The sections below set out the South Dakota law that applies to malpractice claims and explain how to reach, through needanattorney.net, an attorney in our network who handles them.
Medical Malpractice Under South Dakota Law
A claim counts as medical malpractice in South Dakota when it is an action for malpractice, error, mistake or failure to cure against a physician, hospital, nurse, dentist, chiropractor or another practitioner of the healing arts, whatever the legal theory (SDCL § 15-2-14.1).
Which providers fall under the damages statute is spelled out in SDCL § 21-3-11: physicians, chiropractors, optometrists, podiatrists, dentists, hospitals, nurses and others, and the practitioner’s employer.
A bad result alone is not enough. The question is whether the care departed from accepted practice and whether that departure, rather than the underlying illness or a known risk, caused the harm.
Common Medical Malpractice Claims
Whatever the kind of mistake, a claim comes back to two questions: did the care depart from accepted practice, and did that cause the injury?
Diagnostic errors
A late or missed diagnosis can allow an illness to progress. These claims look at what the provider did, what was reasonably available to do, and what an earlier diagnosis would have changed.
Surgical mistakes
A surgical complication is not always a mistake, but a wrong site procedure, a retained object or an avoidable injury during an operation may be. The claim looks at what was done and at what caused the harm.
Errors with medications
A wrong drug, a wrong dose, a missed allergy or a harmful interaction can injure a patient. These claims ask who in the chain, the prescriber, pharmacist or nurse, made the error and whether it caused the harm.
Childbirth injuries
When a mother or baby is harmed before, during or soon after delivery, a claim asks whether the care departed from accepted practice and whether that caused the injury. These cases usually depend heavily on the medical records.
The South Dakota Filing Deadline
South Dakota allows two years from the time the alleged malpractice, error, mistake or failure to cure occurred (SDCL § 15-2-14.1), and the action cannot be started later.
The clock in SDCL § 15-2-14.1 runs from when the alleged malpractice occurred. It does not use discovery wording, which makes the dates of treatment important from the start.
When the Patient Is a Minor
Under SDCL § 15-2-22, the period of a disability, minority or mental illness at the time of accrual, is left out of the time limited for commencing the action.
SDCL § 15-2-22 caps the extra time. A disability other than infancy can add no more than five years, and no extension runs longer than one year after the disability ends.
A Death Caused by Medical Care
SDCL § 21-5-1 makes a person or corporation liable in a wrongful death action when the death was caused by a wrongful act, neglect or default that would have entitled the injured person to sue.
Every action for wrongful death must be commenced within three years after the death (SDCL § 21-5-3).
SDCL § 21-5-5 has the personal representative bring the action, for the exclusive benefit of the surviving spouse and children, or the parents and next of kin when there is neither.
The Limit on General Damages
In an action for personal injury or death alleging malpractice against the providers listed in the statute, the total general damages that may be awarded may not exceed $500,000, whether the case is taken through the court system or by binding arbitration (SDCL § 21-3-11).
The limit does not reach special damages: SDCL § 21-3-11 says there is no limitation on their amount.
The absence of a limit does not mean any amount is guaranteed; the outcome of a claim depends on its facts and the evidence.
When the Patient Shares Fault
SDCL § 20-9-2 bars recovery only when the patient’s own negligence was more than slight in comparison with the defendant’s; otherwise damages are reduced in proportion.
Whether the patient’s negligence was slight in comparison is decided without disclosing a percentage of fault by special interrogatory (SDCL § 20-9-2).
Knowing who treated the patient, and when, helps an attorney decide whom to name and how fault may be divided.
Claims Against Government Health Care Providers
South Dakota sets a much shorter notice period for claims against public entities and their employees: written notice within one hundred eighty days after the injury (SDCL § 3-21-2).
The notice goes to the officer named in SDCL § 3-21-3: the attorney general and the commissioner for the state, the county auditor, the mayor or city finance officer, the superintendent of schools, or the chief executive officer or secretary of the board.
The notice does not stop the clock: SDCL § 3-21-2 says nothing in the chapter tolls or extends a limitation period. For a minor or an incapacitated person, SDCL § 3-21-4 lets a court allow a reasonable time after the disability, on application within two years of the event.
Choosing the County to File In
Where to file depends on the facts. A plaintiff may bring a damages action in the county where the cause of action arose (SDCL § 15-5-8), which for a Milbank claim is often Grant County, or where a defendant resides (SDCL § 15-5-6).
Local Courts and Hospitals in Milbank
Grant County is the county the Census Bureau assigns to Milbank. Grant County is in the Third Circuit, according to South Dakota Codified Law 16-5-1.2. In Milbank, the Department of Health trauma hospital list names Avera Milbank as a designated trauma receiving hospital. Whichever hospital treated you, request your full records and an itemized bill early, and keep a list of the providers you saw.
Speak With a Milbank Malpractice Attorney
Before you contact anyone, it helps to put the events in order: the dates of treatment, the providers you saw, what you were told and what happened afterward.
Submit the form on this page and we will work to connect you with an attorney in our network who handles medical malpractice claims in South Dakota. Because filing deadlines are measured in years, not decades, it helps to ask early.
Frequently Asked Questions
Which providers does the South Dakota malpractice deadline cover?
SDCL § 15-2-14.1 reaches hospitals, nurses and the other practitioners it lists, whether the claim is based on contract or tort.
Are special damages limited in a South Dakota malpractice claim?
General damages are limited to $500,000 in total; there is no limitation on special damages (SDCL § 21-3-11).
Where is a malpractice lawsuit from Milbank filed?
At the plaintiff’s option, the county where the damages were inflicted or the cause of action arose (SDCL § 15-5-8); for care in Milbank that can be Grant County. The county where a defendant resides is the general rule (SDCL § 15-5-6).
Is the deadline different if the patient was mentally ill?
The time of a disability, minority or mental illness at accrual, is not counted (SDCL § 15-2-22), but an extension is limited to one year after the disability ceases, and to five years for a disability other than infancy.
What if I was partly at fault?
Yes, if your own negligence was slight in comparison with the defendant’s; otherwise recovery is barred (SDCL § 20-9-2).
How long do I have to file a medical malpractice claim in South Dakota?
Two years after the alleged malpractice, error, mistake or failure to cure occurred (SDCL § 15-2-14.1).
Is there a wrongful death claim for malpractice in South Dakota?
Yes. SDCL § 21-5-1 provides the action, which must be commenced within three years after the death (SDCL § 21-5-3).
Other Pages That May Help
If the care happened elsewhere in South Dakota, these pages may be a better starting point.
