South Dakota Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE — SOUTH DAKOTA

STATE OF SOUTH DAKOTA — IN CIRCUIT COURT

[____] JUDICIAL CIRCUIT — COUNTY OF [______________]

Civ. No. [____________]

COMPLAINT AND DEMAND FOR JURY TRIAL

COMES NOW Plaintiff, [PLAINTIFF NAME], by and through undersigned counsel, and for a cause of action against the above-named Defendants, alleges and states as follows:

I. PARTIES

1. Plaintiff [PLAINTIFF NAME] is, and at all times relevant herein was, a resident and citizen of [______________] County, State of [______________], residing at [STREET ADDRESS, CITY, STATE, ZIP].

2. Defendant [DEFENDANT PHYSICIAN], M.D., is, and at all times relevant herein was, a physician licensed to practice medicine in the State of South Dakota under license number [____________], with a principal place of practice at [ADDRESS], [CITY], South Dakota [ZIP]. Defendant holds himself/herself out to the public as a [SPECIALTY — e.g., "board-certified general surgeon"].

3. Defendant [DEFENDANT MEDICAL GROUP/CLINIC] is a [professional corporation / limited liability company / partnership] organized and existing under the laws of the State of South Dakota, with its principal place of business at [ADDRESS], [CITY], South Dakota [ZIP]. At all times relevant, Defendant [DEFENDANT PHYSICIAN] was its agent, employee, partner, and/or shareholder acting within the course and scope of such relationship.

4. Defendant [DEFENDANT HOSPITAL] is a [nonprofit corporation / for-profit corporation / governmental entity] organized under the laws of [______________], operating an acute-care hospital and licensed health care facility located at [ADDRESS], [CITY], South Dakota [ZIP]. At all times relevant, Defendant Hospital granted clinical privileges to [DEFENDANT PHYSICIAN] and/or employed nursing, technical, and ancillary personnel involved in Plaintiff's care.

II. JURISDICTION AND VENUE

5. This Court has subject-matter jurisdiction pursuant to S.D. Const. art. V, § 5 and SDCL § 16-6-9, the amount in controversy exceeding the jurisdictional minimum of any small-claims or magistrate division.

6. Venue is proper in [______________] County pursuant to SDCL § 15-5-6 because the cause of action arose, in whole or in part, in this County, and one or more Defendants reside or maintain their principal place of business in this County.

III. STATUTE OF LIMITATIONS COMPLIANCE

7. Plaintiff brings this action within the two-year limitations period prescribed by SDCL § 15-2-14.1. The negligent acts and omissions complained of occurred on or about [__/__/____], and this Complaint is filed within two (2) years thereof.

☐ 7(a). [ALTERNATIVE — CONTINUING TREATMENT]: Defendant [DEFENDANT PHYSICIAN] provided continuous and uninterrupted treatment to Plaintiff for the same condition through [__/__/____], and the limitations period did not begin to run until termination of that course of treatment.

☐ 7(b). [ALTERNATIVE — FRAUDULENT CONCEALMENT]: Defendants knowingly concealed material facts concerning Plaintiff's diagnosis, treatment, and injury, including [DESCRIBE], thereby tolling the limitations period until Plaintiff's discovery of the concealment on or about [__/__/____].

☐ 7(c). [ALTERNATIVE — MINOR PLAINTIFF]: Plaintiff was [____] years old at the time of the act complained of. Pursuant to SDCL § 15-2-22 and applicable South Dakota Supreme Court precedent, this action is timely filed [DESCRIBE — e.g., "within two years of the minor's 6th birthday" / "within two years of the act, with tolling preserved"].

IV. FACTUAL ALLEGATIONS

A. The Physician–Patient Relationship

8. On or about [__/__/____], Plaintiff first presented to Defendant [DEFENDANT PHYSICIAN] at [FACILITY] with the following complaints: [DESCRIBE PRESENTING SYMPTOMS — e.g., "right-lower-quadrant abdominal pain, fever of 101.4°F, and nausea of 18 hours' duration"].

9. By accepting Plaintiff as a patient and undertaking to diagnose and treat Plaintiff, Defendant [DEFENDANT PHYSICIAN] entered into a physician–patient relationship that imposed a duty to provide medical care consistent with the degree of skill, care, and learning ordinarily possessed and exercised by physicians of the same specialty practicing under similar circumstances in South Dakota or in similar communities.

B. The Course of Treatment

10. [CHRONOLOGICAL NARRATIVE — describe each visit, diagnostic test ordered/not ordered, finding, treatment, and clinical decision in numbered subparagraphs. Include dates, times, providers, and locations.]

11. [Continue narrative.]

12. [Continue narrative.]

C. The Negligent Acts and Omissions

13. Defendants, individually and through their agents, servants, and employees, negligently departed from the applicable standard of care in one or more of the following respects:

a. ☐ Failing to obtain a complete and accurate medical history;

b. ☐ Failing to perform an appropriate physical examination;

c. ☐ Failing to order indicated diagnostic studies, including [LIST];

d. ☐ Failing to recognize and respond to abnormal findings, including [LIST];

e. ☐ Failing to timely diagnose [CONDITION];

f. ☐ Failing to timely refer Plaintiff to an appropriate specialist;

g. ☐ Failing to obtain informed consent as required by South Dakota common law and the standards of the profession;

h. ☐ Failing to monitor Plaintiff's [VITALS / LAB VALUES / CLINICAL STATUS];

i. ☐ Failing to communicate critical findings to other treating providers;

j. ☐ Performing the [PROCEDURE] in a manner that fell below the standard of care, specifically [DESCRIBE];

k. ☐ Negligently credentialing, supervising, or retaining staff with knowledge of prior incidents reflecting unfitness;

l. ☐ Such other negligent acts and omissions as discovery may reveal.

D. Causation

14. The negligent acts and omissions of Defendants were a direct and proximate cause of Plaintiff's injuries. Had Defendants complied with the standard of care, Plaintiff would not have suffered the injuries described herein.

E. Injuries and Damages

15. As a direct and proximate result of Defendants' negligence, Plaintiff has suffered, and will continue to suffer, the following injuries and damages:

a. ☐ Permanent physical injury, including [DESCRIBE — e.g., "loss of vision in the left eye," "stage IV metastatic cancer," "anoxic brain injury"];
b. ☐ Past medical, hospital, surgical, rehabilitative, and pharmaceutical expenses in an amount in excess of $[__________];
c. ☐ Future medical, surgical, rehabilitative, and life-care expenses;
d. ☐ Past lost wages and benefits;
e. ☐ Future loss of earning capacity;
f. ☐ Past and future physical pain and suffering;
g. ☐ Past and future mental anguish and emotional distress;
h. ☐ Past and future loss of enjoyment of life;
i. ☐ Disfigurement and physical impairment;
j. ☐ Such other damages as the proof at trial may establish.

V. CAUSES OF ACTION

COUNT I — MEDICAL NEGLIGENCE (Against Defendant [DEFENDANT PHYSICIAN])

16. Plaintiff incorporates paragraphs 1–15 as though fully set forth herein.

17. Defendant [DEFENDANT PHYSICIAN] owed Plaintiff a duty to exercise the degree of skill, care, and learning ordinarily possessed and exercised by [SPECIALTY] physicians under like or similar circumstances in South Dakota or in similar communities.

18. Defendant breached that duty as set forth in paragraph 13 above.

19. Defendant's breach was a direct and proximate cause of Plaintiff's injuries and damages.

WHEREFORE, Plaintiff demands judgment against Defendant [DEFENDANT PHYSICIAN] for compensatory damages, costs, prejudgment and post-judgment interest, and such other relief as the Court deems just.

COUNT II — VICARIOUS LIABILITY / RESPONDEAT SUPERIOR (Against Defendant [DEFENDANT MEDICAL GROUP] and Defendant [DEFENDANT HOSPITAL])

20. Plaintiff incorporates paragraphs 1–19.

21. At all times relevant, Defendant [DEFENDANT PHYSICIAN] was the agent, servant, employee, partner, shareholder, and/or apparent agent of Defendant [DEFENDANT MEDICAL GROUP] and Defendant [DEFENDANT HOSPITAL], acting within the course and scope of such relationship.

22. The institutional Defendants are vicariously liable for the negligent acts and omissions of Defendant [DEFENDANT PHYSICIAN] and of any nurse, technician, resident, or other personnel under their control whose conduct breached the standard of care.

COUNT III — INSTITUTIONAL / CORPORATE NEGLIGENCE (Against Defendant [DEFENDANT HOSPITAL])

23. Plaintiff incorporates paragraphs 1–22.

24. Defendant [DEFENDANT HOSPITAL] owed Plaintiff an independent duty to exercise reasonable care in:

a. ☐ Selecting, credentialing, and granting privileges to physicians;
b. ☐ Periodically reviewing the competence of medical staff;
c. ☐ Adopting, implementing, and enforcing policies and procedures consistent with prevailing standards;
d. ☐ Adequately staffing, training, and supervising nursing and ancillary personnel;
e. ☐ Maintaining equipment and facilities suitable for the services offered.

25. Defendant [DEFENDANT HOSPITAL] breached one or more of these duties, and that breach was a direct and proximate cause of Plaintiff's injuries.

COUNT IV — LACK OF INFORMED CONSENT (Against Defendant [DEFENDANT PHYSICIAN])

26. Plaintiff incorporates paragraphs 1–25.

27. Prior to the [PROCEDURE / TREATMENT] performed on [__/__/____], Defendant [DEFENDANT PHYSICIAN] failed to disclose to Plaintiff the material risks, benefits, and reasonable alternatives, including the risk of [SPECIFIC RISK THAT MATERIALIZED].

28. A reasonable patient in Plaintiff's position, had he/she been properly informed, would not have consented to the [PROCEDURE / TREATMENT].

29. The undisclosed risk materialized and proximately caused injury to Plaintiff.

COUNT V — LOSS OF CONSORTIUM (Against All Defendants) [☐ INCLUDE IF APPLICABLE]

30. Plaintiff [SPOUSE NAME], the lawfully married spouse of Plaintiff [INJURED PARTY], incorporates paragraphs 1–29 and asserts a claim for loss of society, services, companionship, comfort, affection, and consortium pursuant to South Dakota common law.

COUNT VI — WRONGFUL DEATH (Against All Defendants) [☐ INCLUDE ONLY IF DECEDENT — substitute Personal Representative]

31. [PERSONAL REPRESENTATIVE NAME], duly appointed Personal Representative of the Estate of [DECEDENT], incorporates paragraphs 1–30 and brings this action pursuant to SDCL § 21-5-1 for the exclusive benefit of the statutory wrongful-death beneficiaries.

VI. CONDITIONS PRECEDENT

32. South Dakota law does not require service of a pre-suit notice of intent to sue, an affidavit or certificate of merit, or pre-suit submission to a medical-review panel as a condition of filing this action. See SDCL § 15-2-14.1 et seq. (no pre-suit procedural requirement); see also SD Pattern Jury Instructions, Civil §§ 105-01 to 105-50.

VII. APPLICATION OF SDCL § 21-3-11 NONECONOMIC DAMAGES CAP

33. Plaintiff acknowledges that, post-verdict, the Court will be required to apply the noneconomic-damages cap codified at SDCL § 21-3-11 ($500,000 aggregate cap on noneconomic damages in actions against health-care providers). Plaintiff reserves all rights to challenge the constitutionality and applicability of the cap as applied to the facts of this case under the South Dakota and United States Constitutions, including without limitation the right to jury trial (S.D. Const. art. VI, § 6), due process (S.D. Const. art. VI, § 2), equal protection, and the open-courts / remedy-by-due-course-of-law guarantee. See generally Knowles v. United States, 1996 SD 10, 544 N.W.2d 183 (addressing prior $1,000,000 cap).

VIII. COMPARATIVE FAULT AND APPORTIONMENT

34. To the extent any Defendant alleges contributory fault on the part of Plaintiff or any non-party, Plaintiff invokes the slight/gross comparative-negligence doctrine codified at SDCL § 20-9-2 and the modified joint-and-several liability provisions of SDCL § 15-8-15.1, and demands that fault be apportioned by special verdict.

IX. EVIDENTIARY RESERVATIONS

35. Plaintiff places Defendants on notice that any statement of apology, sympathy, or condolence offered by a health-care provider, and any offer to pay or actual payment of medical or similar expenses, is inadmissible to prove liability under SDCL § 19-19-409 and analogous SD Rules of Evidence. Plaintiff reserves the right to seek pretrial rulings on the scope and limits of these protections.

X. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally to the extent permitted by SDCL § 15-8-15.1, as follows:

A. ☐ Compensatory damages in an amount to be determined by the jury, including all economic damages (uncapped) and noneconomic damages (subject to SDCL § 21-3-11);
B. ☐ Pre-judgment interest pursuant to SDCL § 21-1-13.1 to the extent applicable;
C. ☐ Post-judgment interest pursuant to SDCL § 54-3-5.1;
D. ☐ Costs and disbursements pursuant to SDCL ch. 15-17;
E. ☐ Such other and further relief as the Court deems just and equitable.

XI. JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable, pursuant to S.D. Const. art. VI, § 6 and SDCL § 15-6-38.

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

Respectfully submitted,

[LAW FIRM NAME]

By: ________________________________
[ATTORNEY NAME], SD Bar No. [________]
[FIRM STREET ADDRESS]
[CITY], SD [ZIP]
Telephone: ([____]) [____]-[________]
Email: [______________@______________]

Attorneys for Plaintiff

VERIFICATION (Optional — recommended for fraud-based counts)

STATE OF SOUTH DAKOTA )
) ss.
COUNTY OF [__________] )

I, [PLAINTIFF NAME], being first duly sworn upon oath, depose and state that I am the Plaintiff in the above-entitled action; that I have read the foregoing Complaint; and that the matters stated therein are true to the best of my knowledge, information, and belief.

________________________________
[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [__________], 20[____].

________________________________
Notary Public — South Dakota
My Commission Expires: [__/__/____]

Sources and References

• SDCL § 15-2-14.1 — Time for bringing medical malpractice actions (2-year occurrence-based limitation): https://sdlegislature.gov/Statutes/15-2-14.1
• SDCL § 21-3-11 — $500,000 noneconomic damages 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 liability (defendants <50% fault): https://sdlegislature.gov/Statutes/15-8-15.1
• SDCL § 19-19-409 — Offers to pay medical expenses inadmissible: https://sdlegislature.gov/Statutes/19-19-409
• SDCL § 19-19-702 — Daubert / expert witness qualifications: https://sdlegislature.gov/Statutes/19-19-702
• SDCL § 21-5-1 — Wrongful death (3-year limitations): https://sdlegislature.gov/Statutes/21-5-1
• SDCL ch. 15-6 — South Dakota Rules of Civil Procedure
• Knowles v. United States, 544 N.W.2d 183 (S.D. 1996)
• Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556 (occurrence rule for med-mal)
• Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997) (30% contributory fault is more than slight as a matter of law)