South Dakota Pre-Suit Expert Review Framework (Certificate of Merit Equivalent)

SOUTH DAKOTA PRE-SUIT EXPERT REVIEW FRAMEWORK

(Certificate-of-Merit Equivalent — Internal Work Product)

PURPOSE OF THIS DOCUMENT

This is an internal pre-suit memorandum confirming that, prior to commencing a medical-negligence action under SDCL § 15-2-14.1, counsel of record has:

1. ☐ Obtained and reviewed the relevant medical records;
2. ☐ Consulted with one or more qualified health-care experts;
3. ☐ Obtained a written or recorded expert opinion stating that there is a reasonable basis to believe the standard of care was breached and that such breach proximately caused injury;
4. ☐ Concluded that the action is supported by the law and the facts as required by SDCL § 15-6-11 and SD Rule of Professional Conduct 3.1.

PART I — CASE IDENTIFICATION

PART II — RECORDS REVIEWED

The following records were obtained, indexed, and reviewed prior to expert consultation:

☐ Complete certified medical record from [FACILITY] for date range [__/__/____] to [__/__/____]
☐ Imaging studies (CT / MRI / X-ray / ultrasound) — DICOM and reports
☐ Pathology slides and reports
☐ Laboratory results
☐ Anesthesia and operative records
☐ Nursing notes and flow sheets
☐ Medication administration records (MAR)
☐ Electronic Health Record audit trail / metadata
☐ Telemetry strips
☐ Discharge summaries and consultation notes
☐ Prior medical history (3 years pre- and 2 years post-incident)
☐ Billing records (CPT/ICD-10 coding)
☐ Pharmacy records
☐ Death certificate / autopsy report (if applicable)
☐ Other: [____________________]

Total pages reviewed: [____________]
Records custodian affidavits collected: ☐ Yes ☐ No
HIPAA-compliant authorizations executed: ☐ Yes ☐ Date: [__/__/____]

PART III — EXPERT QUALIFICATIONS (SDCL § 19-19-702 / Daubert)

Reviewing Expert

PART IV — STANDARD-OF-CARE OPINION (Verbatim or Summary)

The following is a true and accurate summary of the opinion provided by the reviewing expert on [__/__/____], after review of the records identified in Part II:

A. Applicable Standard of Care

[INSERT EXPERT'S DESCRIPTION OF THE STANDARD OF CARE — what a reasonably prudent practitioner of the same specialty would have done under like or similar circumstances]

B. Breach

The reviewing expert opines, to a reasonable degree of medical certainty, that the following acts or omissions departed from the applicable standard of care:

1. ☐ [BREACH 1]
2. ☐ [BREACH 2]
3. ☐ [BREACH 3]

C. Causation

The reviewing expert further opines, to a reasonable degree of medical certainty, that the breach(es) above were a direct and proximate cause of the following injuries:

1. ☐ [INJURY 1]
2. ☐ [INJURY 2]
3. ☐ [INJURY 3]

D. Damages Within the Cap

The reviewing expert has identified the following uncapped economic damage categories:

☐ Past medical expenses: $[________]
☐ Future medical / life-care expenses: $[________]
☐ Past lost earnings: $[________]
☐ Future loss of earning capacity: $[________]

PART V — STATUTORY AND DOCTRINAL CHECKLIST

A. Statute of Limitations / Repose

☐ Filing date will fall within 2 years of the act/omission (SDCL § 15-2-14.1)
☐ If beyond 2 years, tolling theory documented:
    ☐ Continuing treatment for the same condition
    ☐ Fraudulent concealment (with particularity)
    ☐ Minor plaintiff under SDCL § 15-2-22 (note under-6/by-age-8 limitation)
☐ No statutory foreign-object discovery exception in SD — counsel cannot rely on one

B. Comparative Fault Analysis (SDCL § 20-9-2)

☐ Plaintiff's contributory fault analyzed under slight/gross standard
☐ Plaintiff's fault is "slight" relative to defendant's "gross" fault — viable
☐ Plaintiff's fault is 30% or more — Wood v. City of Crooks bars recovery as a matter of law — DO NOT FILE

C. Joint and Several Liability (SDCL § 15-8-15.1)

☐ All potentially liable defendants identified
☐ Apportionment scenario modeled (defendant <50% fault capped at 2x share)
☐ Empty-chair / Phantom-tortfeasor exposure assessed

D. Damages Cap (SDCL § 21-3-11)

☐ Noneconomic exposure modeled at and below the $500K cap
☐ Economic exposure modeled (uncapped)
☐ Per-defendant vs. aggregate cap analysis confirmed

E. Apology / Inadmissibility (SDCL § 19-19-409)

☐ Statements of sympathy and offers to pay medical expenses identified and segregated
☐ Statements that admit fault flagged as potentially admissible

F. Wrongful Death (if applicable)

☐ Personal Representative appointed (SDCL ch. 29A-3)
☐ 3-year wrongful-death SOL calendared (SDCL § 21-5-1) — distinct from 2-year underlying tort
☐ Statutory beneficiaries identified

PART VI — COUNSEL CERTIFICATION

I, the undersigned attorney, hereby certify that:

1. I have personally reviewed the medical records and other materials identified in Part II;
2. I have consulted with the qualified expert identified in Part III;
3. I have received a written or recorded opinion from that expert as summarized in Part IV;
4. Based on that consultation and on my own legal analysis, there is a reasonable basis to believe the prospective Defendant(s) breached the applicable standard of care and proximately caused injury to my client;
5. The action complies with SDCL § 15-6-11 and SD Rules of Professional Conduct 1.1 and 3.1;
6. This certification is internal attorney work product and is not, and is not required to be, filed with the court;
7. I will preserve the underlying retention letter, expert CV, written opinion, and billing records as required by SD Rules of Professional Conduct 1.15 and applicable claim-file-retention policies.

Dated this [____] day of [__________], 20[____].

________________________________
[ATTORNEY NAME], SD Bar No. [________]
[LAW FIRM NAME]

PART VII — POST-FILING EXPERT DISCLOSURE NOTES

☐ Calendar trial-court expert disclosure deadline: [__/__/____]
☐ Identify treating-physician experts (lower disclosure burden)
☐ Identify retained experts (full Rule 26(b)(4) disclosure)
☐ Prepare for Daubert / SDCL § 19-19-702 challenge
☐ Pre-deposition meeting with each expert (work-product privileged)

Sources and References

• SDCL § 15-2-14.1 — Time for bringing medical malpractice actions: https://sdlegislature.gov/Statutes/15-2-14.1
• SDCL § 15-6-11 — Signing of pleadings; sanctions: https://sdlegislature.gov/Statutes/15-6-11
• SDCL § 19-19-702 — Daubert expert standard: https://sdlegislature.gov/Statutes/19-19-702
• SDCL § 21-3-11 — $500,000 noneconomic cap: https://sdlegislature.gov/Statutes/21-3-11
• SDCL § 20-9-2 — Slight/gross comparative negligence: https://sdlegislature.gov/Statutes/20-9-2
• SDCL § 15-8-15.1 — Modified joint and several: https://sdlegislature.gov/Statutes/15-8-15.1
• SDCL § 19-19-409 — Offers to pay medical expenses: https://sdlegislature.gov/Statutes/19-19-409
• SDCL § 21-5-1 — Wrongful death limitations: https://sdlegislature.gov/Statutes/21-5-1
• Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556 (occurrence rule)
• Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997) (30% contributory fault is more than slight)
• Knowles v. United States, 544 N.W.2d 183 (S.D. 1996) (prior $1M damages cap held unconstitutional; current $500K cap is post-amendment)
• NCSL — Medical Liability/Malpractice Merit Affidavits and Expert Witnesses (state-by-state)