Medical Malpractice Settlement Agreement (South Dakota)

MEDICAL MALPRACTICE SETTLEMENT AGREEMENT AND RELEASE

(South Dakota)

TABLE OF CONTENTS

1. Parties
2. Recitals and Background
3. Settlement Consideration and Allocation
4. Release of Claims
5. Liens and Subrogation
6. NPDB and Regulatory Reporting
7. Tax Treatment
8. Confidentiality
9. No Admission of Liability
10. Representations and Warranties
11. Indemnification
12. General Provisions
13. Execution

1. PARTIES

This Medical Malpractice Settlement Agreement and Release ("Agreement") is entered into as of [EFFECTIVE DATE] by and among:

2. RECITALS AND BACKGROUND

A. On or about [INCIDENT DATE], Claimant alleges that Released Parties rendered professional healthcare services that caused Claimant [DESCRIBE INJURY].

B. Claimant [has filed / threatens to file] a civil action [Case No. ___, ___ Judicial Circuit Court, ___ County, SD] asserting medical negligence, lack of informed consent, and related claims (the "Claim").

C. The Claim is governed by SDCL § 15-2-14.1 (3-year limitations/repose) and SDCL § 21-3-11 (noneconomic damages cap of $500,000).

D. The Parties wish to compromise and fully resolve the Claim without admission of liability. Released Parties deny all liability.

3. SETTLEMENT CONSIDERATION AND ALLOCATION

3.1 Total Settlement Amount. Released Parties shall pay Claimant the gross sum of $[__________] ("Settlement Amount") within [30] days after (a) execution of this Agreement; (b) court approval if required (minor/incapacitated/wrongful-death allocation); and (c) lien resolution per Section 5.

3.2 Allocation. The Parties allocate the Settlement Amount as follows for tax and lien purposes (see § 7):

3.3 Form of Payment. ☐ Lump sum ☐ Structured settlement (qualified assignment under IRC § 130) ☐ Combination. Structure details at Exhibit A.

3.4 Court Approval / Probate. ☐ Required (minor/incapacitated/wrongful death — SDCL ch. 21-5) ☐ Not required.

4. RELEASE OF CLAIMS

4.1 General Release. In exchange for the Settlement Amount, Claimant hereby releases, acquits, and forever discharges Released Parties, their insurers, employees, agents, successors, and assigns from any and all claims, demands, causes of action, damages, and liabilities of every kind, whether known or unknown, arising out of or related to the care described in Section 2.

4.2 Unknown Claims. Claimant expressly waives any rights under any law providing that a general release does not extend to unknown claims.

4.3 Scope. This release includes claims for medical negligence, lack of informed consent, breach of fiduciary duty, negligent hiring/supervision, wrongful death, loss of consortium, EMTALA, and statutory claims.

4.4 Carve-Outs. This release does not waive: (a) rights under this Agreement; (b) workers' compensation rights, if any; (c) future unrelated care.

5. LIENS AND SUBROGATION

5.1 Identification of Liens. Claimant represents that the following known liens, subrogation, or reimbursement interests exist:

☐ Medicare (42 U.S.C. § 1395y(b)) — final demand $[___]
☐ Medicaid (42 U.S.C. § 1396a(a)(25); SDCL § 28-6-23) — $[___]
☐ ERISA plan — $[___]
☐ Private health insurer — $[___]
☐ Hospital / provider lien — $[___]
☐ Tricare / VA — $[___]

5.2 MSP Compliance. Prior to disbursement, the Parties shall obtain a Conditional Payment Letter and Final Demand from CMS/BCRC. ☐ MSA reviewed for future medicals.

5.3 Holdback. Claimant's counsel shall escrow $[___] until all liens are satisfied and written releases obtained.

5.4 Indemnity for Liens. Claimant indemnifies Released Parties and Payor against any lien, subrogation, or reimbursement claim arising from the Settlement Amount.

6. NPDB AND REGULATORY REPORTING

6.1 NPDB Report. The Parties acknowledge that any payment by or on behalf of a licensed practitioner must be reported to the National Practitioner Data Bank within 30 days under 42 U.S.C. § 11131 and 45 C.F.R. § 60.7. The reporting entity is [INSURER / SELF-INSURED ENTITY].

6.2 Practitioner Identification. The settlement is allocated among practitioners as follows for NPDB purposes: [NAME(S), LICENSE(S), AMOUNT(S)].

6.3 No Suppression. Nothing in this Agreement (including Section 8) shall be construed to require non-reporting or to permit any party to evade NPDB reporting obligations. Provisions inconsistent with mandatory reporting are void.

6.4 Board / State Reporting. The Parties acknowledge any reporting obligations to the South Dakota Board of Medical and Osteopathic Examiners under SDCL ch. 36-4.

7. TAX TREATMENT

7.1 IRC § 104(a)(2). The Parties intend that amounts allocated to compensation for personal physical injuries and physical sickness be excludible from gross income under 26 U.S.C. § 104(a)(2).

7.2 Form 1099. Released Parties / Payor shall issue Form 1099 only as required by law.

7.3 No Tax Advice. Each Party has obtained independent tax advice. Released Parties make no representation as to tax consequences.

8. CONFIDENTIALITY

8.1 Mutual Confidentiality. The terms and amount of this settlement shall remain confidential, subject to Section 8.2.

8.2 Permitted Disclosures. Disclosure is permitted to (a) tax/legal/financial advisors; (b) the IRS, CMS, or state Medicaid; (c) NPDB and licensing boards; (d) as required by court order, subpoena, or law; (e) to lienholders; (f) to family members on a confidential basis.

8.3 No Disparagement. Neither Party shall make public statements disparaging the other.

8.4 Liquidated Damages. Breach of Section 8 results in liquidated damages of $[___] per material breach.

9. NO ADMISSION OF LIABILITY

This Agreement is a compromise of disputed claims. Released Parties expressly deny any negligence, fault, or liability. This Agreement shall not be construed as an admission.

10. REPRESENTATIONS AND WARRANTIES

10.1 Claimant has capacity, is represented by counsel (or has knowingly waived), and has read the Agreement.

10.2 Claimant has not assigned the Claim.

10.3 Claimant has disclosed all known liens and Medicare/Medicaid eligibility.

10.4 The signatories have authority to bind the Parties.

11. INDEMNIFICATION

Claimant shall indemnify and hold harmless Released Parties and Payor from any claim by any lienholder, subrogee, heir, or assignee arising from the Settlement Amount, including reasonable attorneys' fees.

12. GENERAL PROVISIONS

12.1 Governing Law. South Dakota law, without regard to conflicts.

12.2 Venue. Circuit Court, [___] County, South Dakota.

12.3 Entire Agreement. Supersedes all prior communications.

12.4 Amendment. Writing signed by all Parties.

12.5 Severability. Invalid provisions severed; balance enforced.

12.6 Counterparts; Electronic Signatures. Permitted under SDCL ch. 53-12.

12.7 Attorneys' Fees. Prevailing party in any enforcement action recovers fees.

13. EXECUTION

Notary (if required):
State of South Dakota, County of [______]. Subscribed and sworn before me on [__/__/____] by [NAME].
Notary Public: __________________________ My commission expires: [__/__/____]

Sources and References

• SDCL § 21-3-11 — https://sdlegislature.gov/Statutes/21-3-11
• SDCL § 15-2-14.1 — https://sdlegislature.gov/Statutes/15-2-14.1
• Knowles v. United States, 1996 S.D. 10, 544 N.W.2d 183
• 42 U.S.C. § 11131; 45 C.F.R. § 60.7 (NPDB)
• 42 U.S.C. § 1395y(b)(2) (Medicare Secondary Payer)
• 26 U.S.C. § 104(a)(2) (tax exclusion)