DEMAND FOR SETTLEMENT - MEDICAL MALPRACTICE

STATE OF SOUTH DAKOTA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, South Dakota ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of South Dakota

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Risk Management / Claims Administrator]
[Hospital / Medical Group / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: MEDICAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Patient/Claimant: [Client Full Name]
Date(s) of Negligent Care: [Date or Date Range]
Healthcare Provider(s): [Provider Name(s)]
Facility: [Hospital/Clinic Name]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the medical malpractice that occurred during [his/her] care and treatment at [Facility Name] by [Healthcare Provider Name(s)]. This letter constitutes formal notice of our client's claim and our demand for settlement.

I. SOUTH DAKOTA LEGAL FRAMEWORK

A. Statute of Limitations

Under South Dakota Codified Laws Section 15-2-14.1, the statute of limitations for medical malpractice actions is two (2) years. The cause of action accrues when the patient discovers, or through the use of reasonable diligence should have discovered, the alleged malpractice.

Discovery Rule: South Dakota applies the discovery rule, meaning the statute of limitations begins to run when the patient knows or reasonably should know of the injury and its cause. Beckel v. Gerber, 590 N.W.2d 906 (S.D. 1999).

Foreign Object Exception: For cases involving foreign objects left in the body, the statute runs from discovery of the foreign object.

Minor Tolling: For minors under the age of 18, the statute of limitations is tolled until the minor reaches the age of majority. S.D. Codified Laws Section 15-2-22.

Based on our analysis:
- Date of negligent care: [Date]
- Date of discovery: [Date]
- Limitations period expires: [Date]

B. Pre-Suit Requirements

South Dakota does not require:
- Pre-suit notice to healthcare providers
- Certificate of merit or expert affidavit with filing
- Medical review panel submission

However, having expert support before filing is strongly recommended as expert testimony is required to establish the standard of care in most cases.

C. Expert Witness Requirements

South Dakota requires expert testimony to establish the standard of care and breach thereof in medical malpractice cases, except in cases where the negligence is so obvious that it is within the common knowledge of laymen. Shamburger v. Behrens, 418 N.W.2d 299 (S.D. 1988).

Expert Qualifications: The expert must have knowledge of the standard of care applicable to the defendant. South Dakota courts have been flexible regarding locality requirements, generally applying a national or similar community standard.

D. Comparative Negligence - Slight/Gross Standard

South Dakota follows a unique slight/gross comparative negligence standard under S.D. Codified Laws Section 20-9-2. The plaintiff may recover damages only if their negligence was "slight" in comparison to the defendant's negligence, which must be "gross."

If the plaintiff's negligence is more than "slight," recovery is completely barred. This is a more restrictive standard than modified comparative fault systems used in other states.

Our client bears no responsibility for the negligent medical care provided.

E. Damage Caps

South Dakota does not impose statutory caps on:
- Economic damages
- Non-economic damages in medical malpractice cases

Punitive Damages: South Dakota allows punitive damages but they must be proportionate to the wrongdoing and the defendant's financial condition. Dahl v. Sittner, 474 N.W.2d 897 (S.D. 1991).

F. Standard of Care

Under South Dakota law, a healthcare provider must exercise that degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the profession or class to which they belong, acting in the same or similar circumstances. Shamburger v. Behrens, 418 N.W.2d 299 (S.D. 1988).

National/Similar Community Standard: South Dakota has moved away from a strict locality rule and applies a standard based on what is expected of reasonably prudent practitioners in the same or similar circumstances, which may include consideration of national standards. Nygaard v. Sioux Valley Hospital, 731 N.W.2d 184 (S.D. 2007).

G. Informed Consent

South Dakota recognizes the doctrine of informed consent. A physician has a duty to disclose the nature of the proposed treatment, the risks and benefits, and available alternatives. The standard is based on what a reasonable patient would want to know. Wheeldon v. Madison, 374 N.W.2d 367 (S.D. 1985).

H. Vicarious Liability

Hospital Liability: South Dakota hospitals may be held vicariously liable for the negligence of their employees under the doctrine of respondeat superior. Hospitals may also be held directly liable for negligent credentialing, negligent supervision, and corporate negligence.

Independent Contractors: Generally, hospitals are not liable for the negligence of independent contractor physicians unless apparent agency or ostensible agency applies.

Apparent Agency: A hospital may be liable for the negligence of an independent contractor physician if the patient reasonably believed the physician was an employee or agent of the hospital. Mahan v. Avera St. Luke's, 621 N.W.2d 150 (S.D. 2001).

I. Res Ipsa Loquitur

South Dakota recognizes the doctrine of res ipsa loquitur in appropriate medical malpractice cases where:
1. The injury is of a kind that ordinarily does not occur in the absence of negligence
2. The instrumentality causing the injury was within the exclusive control of the defendant
3. The injury was not due to any voluntary action or contribution by the plaintiff

Fjerstad v. Sioux Valley Hospital, 291 N.W.2d 786 (S.D. 1980).

J. Loss of Chance Doctrine

South Dakota has not clearly adopted the loss of chance doctrine. Courts have analyzed causation under traditional "more probable than not" standards. Practitioners should monitor case law developments in this area.

K. Wrongful Death

Wrongful death actions arising from medical malpractice are governed by S.D. Codified Laws Sections 21-5-1 et seq. The action may be brought by the personal representative of the decedent's estate or by surviving beneficiaries.

Damages: Include pecuniary loss, loss of comfort, society, and companionship, and in some cases, grief and sorrow.

L. Government Immunity

Public Hospitals: Claims against state and local government entities, including public hospitals, are governed by the South Dakota Tort Claims Act. S.D. Codified Laws Sections 21-32A-1 et seq.

Damage Caps: There is a cap of $500,000 per person and $1,000,000 per occurrence for claims against state and local government entities. S.D. Codified Laws Section 21-32A-4.

Notice Requirements: Claims against government entities must be filed within 180 days of the injury. S.D. Codified Laws Section 21-32A-3.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to the care and treatment of [Client Name], including but not limited to:

• Complete medical records (paper and electronic)
• All versions of electronic medical records (including audit trails)
• Nursing notes, medication administration records, and flow sheets
• All diagnostic imaging studies and reports
• Laboratory results and pathology reports
• Operative reports and anesthesia records
• Consultation notes and informed consent documents
• Incident/occurrence reports
• Policies, procedures, and protocols in effect at the time of treatment
• Credentialing files and staffing records
• Equipment maintenance and calibration records
• Insurance policies and communications with insurers

Spoliation Warning: South Dakota courts recognize spoliation of evidence as grounds for adverse inference instructions and sanctions.

III. FACTUAL BACKGROUND

A. Patient History and Presentation

[Client Name], a [age]-year-old [male/female], presented to [Facility/Provider] on [Date] with [chief complaint / reason for visit]:

Relevant Medical History:
- [Relevant past medical history]
- [Relevant surgical history]
- [Current medications]
- [Allergies]

Presenting Symptoms:
- [Symptom 1]
- [Symptom 2]
- [Symptom 3]

B. Chronology of Negligent Care

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

[Date/Time]: [Describe what occurred]

C. The Medical Error(s)

[Defendant Healthcare Provider] committed the following acts of negligence:

• Misdiagnosis / Failure to Diagnose: [Description]
• Surgical Error: [Description]
• Medication Error: [Description]
• Failure to Treat: [Description]
• Delayed Treatment: [Description]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE ANALYSIS

A. Applicable Standard of Care

Under South Dakota law, [Defendant Healthcare Provider] was required to exercise that degree of care, skill, and learning expected of a reasonably prudent healthcare provider in the profession or class to which they belong, acting in the same or similar circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]

B. Breaches of the Standard of Care

[Defendant Healthcare Provider] breached the applicable standard of care in the following ways:

Breach 1: [Detailed description]

Breach 2: [Detailed description]

C. Expert Opinion Summary

We have retained [Expert Name, M.D.], a board-certified [Specialty] physician, to review this matter. [Dr./Expert Name] has concluded, to a reasonable degree of medical certainty, that:

1. [Defendant Provider] breached the applicable standard of care;
2. These breaches were a direct and proximate cause of [describe injuries];
3. Had appropriate care been rendered, [describe what would have happened].

V. CAUSATION

A. Factual Causation

But for the defendant's breach of the standard of care, our client would not have suffered the injuries described herein.

B. Proximate Causation

The injuries sustained by our client were foreseeable consequences of the defendant's negligence.

VI. INJURIES AND DAMAGES

A. Physical Injuries Caused by Malpractice

Primary Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]

Current Medical Status:
[Describe client's current condition, ongoing treatment needs, and prognosis]

B. Medical Expenses

Past Medical Expenses:

Future Medical Expenses: $[Amount]

C. Lost Earnings and Earning Capacity

D. Non-Economic Damages

South Dakota does not cap non-economic damages in medical malpractice cases:

• Physical Pain and Suffering
• Emotional Distress
• Loss of Enjoyment of Life
• Disfigurement/Physical Impairment
• Loss of Consortium

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear breach of the standard of care, the severity of our client's injuries, and the substantial damages, we hereby demand:

$[DEMAND AMOUNT]

Time for Response

This demand will remain open for [30] days from the date of this letter, through and including [Expiration Date].

VIII. INSURANCE AND INDEMNIFICATION

We demand disclosure of all professional liability insurance policies applicable to this claim, policy limits, hospital/institutional liability coverage, and self-insured retention amounts.

IX. DOCUMENTATION ENCLOSED

• Medical records (relevant portions)
• Medical bills and itemized statements
• Employment and wage records
• Photographs documenting injuries/condition
• HIPAA authorizations

X. CONCLUSION

This case involves clear medical negligence. We urge you to give this matter serious attention and respond promptly.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
South Dakota Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

SOUTH DAKOTA PRACTICE NOTES

• 2-Year Statute of Limitations: Runs from discovery of injury and cause per S.D. Codified Laws Section 15-2-14.1.
• No Pre-Suit Requirements: No notice, certificate of merit, or medical panel required.
• Slight/Gross Comparative Fault: Unique standard - plaintiff's negligence must be "slight" compared to defendant's "gross" negligence for recovery.
• No Damage Caps: No statutory caps on economic or non-economic damages.
• Expert Testimony Required: Generally required except for obvious negligence cases.
• Government Claims: Tort Claims Act applies to public hospitals with $500,000/$1,000,000 caps and 180-day notice requirement.
• Loss of Chance: Not clearly recognized - monitor case law developments.

This template must be customized for your specific case. Always verify current law.