South Dakota Pre-Suit Demand and Settlement Framework (Notice of Intent Equivalent)

SOUTH DAKOTA PRE-SUIT DEMAND AND SETTLEMENT FRAMEWORK

(Notice-of-Intent Equivalent — Optional Settlement Communication)

[LAW FIRM LETTERHEAD]

SENT VIA: ☐ Certified Mail Return Receipt Requested ☐ Email (with read receipt) ☐ Hand Delivery ☐ FedEx Tracked Delivery

Date: [__/__/____]

To:
[DEFENDANT PHYSICIAN OR FACILITY NAME]
[STREET ADDRESS]
[CITY], SD [ZIP]

Cc (if known):
[MEDICAL MALPRACTICE INSURANCE CARRIER]
[CLAIMS REPRESENTATIVE NAME]
[ADDRESS]

Re: Pre-Suit Demand for Resolution
    Patient/Claimant: [CLIENT NAME], DOB [__/__/____]
    Date(s) of Alleged Negligent Care: [__/__/____]
    Facility: [FACILITY]
    Our File No.: [________]

CONFIDENTIAL — FOR SETTLEMENT PURPOSES ONLY
INADMISSIBLE UNDER SDCL §§ 19-19-408 AND 19-19-409

Dear [NAME / RISK MANAGER / CLAIMS REPRESENTATIVE]:

This firm represents [CLIENT NAME] in connection with serious injuries sustained as a result of medical care provided by you and/or your insured at [FACILITY] on or about [__/__/____]. We write before filing suit to provide you and your carrier an opportunity to evaluate the claim and discuss resolution.

This communication is made for purposes of compromise and is inadmissible to prove or disprove the validity of the claim under SDCL § 19-19-408. Statements herein concerning offers, sympathies, or potential payment of medical expenses are also inadmissible under SDCL § 19-19-409.

I. NO STATUTORY PRE-SUIT NOTICE REQUIREMENT

We acknowledge that South Dakota law does not require pre-suit notice of intent to sue, an affidavit or certificate of merit, or submission to a medical-review panel as a condition of filing a medical-negligence action. See SDCL § 15-2-14.1 et seq. This letter is therefore offered as a courtesy and a vehicle for early resolution, not as the satisfaction of any statutory condition precedent. Nothing in this letter shall be construed to extend, toll, or modify any limitations period, including the two-year medical-malpractice limitations period codified at SDCL § 15-2-14.1.

II. THE PARTIES

III. SUMMARY OF FACTS

A. Pre-Incident Status

Prior to [__/__/____], [CLIENT NAME] was a [____]-year-old [occupation] in [describe baseline health, function, and earning capacity].

B. Course of Care

1. [__/__/____] — [CLIENT NAME] presented to [PROVIDER/FACILITY] with [CHIEF COMPLAINT].
2. [__/__/____] — [describe diagnostic/treatment event].
3. [__/__/____] — [describe key event].
4. [__/__/____] — [describe key event].
5. [__/__/____] — [describe outcome / discovery of injury].

C. Departures from the Standard of Care

After review of the complete medical record by counsel and a qualified same-or-similar-specialty physician consultant retained pursuant to SDCL § 19-19-702 standards, we have identified the following departures from the applicable standard of care:

a. ☐ Failure to [ACT/OMISSION];
b. ☐ Failure to [ACT/OMISSION];
c. ☐ Failure to [ACT/OMISSION];
d. ☐ [ACT/OMISSION].

D. Causation

Each of the above departures was, individually and in combination, a substantial factor in causing the injuries described in Section IV. Had the standard of care been met, the harm would, more likely than not, have been avoided.

IV. INJURIES AND DAMAGES

A. Injuries

As a direct and proximate result of the negligence described above, [CLIENT NAME] has suffered:

☐ [Permanent injury — e.g., anoxic brain injury, paraplegia, loss of organ function, stage IV cancer, etc.];
☐ Disfigurement and physical impairment;
☐ Loss of bodily function;
☐ Cognitive deficits;
☐ Emotional and psychological injury;
☐ [Other].

B. Economic Damages (Uncapped under South Dakota Law)

C. Noneconomic Damages (Subject to SDCL § 21-3-11 $500,000 Aggregate Cap)

D. Loss of Consortium [☐ if applicable]

[SPOUSE NAME] has a derivative claim for loss of consortium, society, services, and companionship.

E. Wrongful Death [☐ if applicable]

If the injury resulted in death, the statutory beneficiaries enumerated in SDCL § 21-5-7 assert a wrongful-death claim through the duly appointed Personal Representative pursuant to SDCL § 21-5-1. The wrongful-death limitations period is three (3) years from death.

V. APPLICABLE SOUTH DAKOTA LEGAL FRAMEWORK

Counsel and the carrier should evaluate this claim with reference to:

VI. SETTLEMENT DEMAND

In full and final settlement of all claims described above, including any derivative or wrongful-death claims, [CLIENT NAME] demands payment of:

$[__________].

This demand is calculated as the sum of: (a) economic damages ($[__________], uncapped); (b) the statutory maximum noneconomic damages of $500,000 under SDCL § 21-3-11; (c) loss-of-consortium damages of $[__________], if applicable; and (d) prejudgment interest as may be available under SDCL § 21-1-13.1.

This demand will remain open for [____] days from your receipt of this letter, after which it will be withdrawn without further notice and suit will be filed in the Circuit Court for [______________] County, South Dakota.

VII. PRESERVATION OF EVIDENCE

You and your insured are hereby placed on formal notice to preserve all relevant evidence, including but not limited to:

☐ The complete medical record (paper and electronic, including audit trail);
☐ All imaging studies in DICOM format with metadata;
☐ Pathology slides, blocks, and reports;
☐ Anesthesia and operative records, including video if available;
☐ Telemetry, monitor, and pump data;
☐ Laboratory results (including discarded or amended results);
☐ Pharmacy records and Pyxis logs;
☐ Equipment maintenance and calibration records for any device used;
☐ Incident reports, root-cause analyses, and peer-review materials (with appropriate privilege analyses);
☐ Communications (email, secure messaging, paging logs) among providers and to the patient;
☐ Personnel files and credentialing files of involved providers (subject to subpoena/protective order);
☐ All policies and procedures in effect on the date of the incident;
☐ Insurance policies and excess/umbrella declarations.

Spoliation of any of the foregoing will be addressed through the spoliation doctrine recognized in South Dakota and will support an adverse-inference instruction at trial.

VIII. INSURANCE AND COVERAGE INFORMATION REQUESTED

Pursuant to good-faith claim-handling expectations under SDCL § 58-12-3 and customary practice, please provide within [____] days:

☐ Declarations pages for all primary, excess, and umbrella professional-liability policies in effect on [__/__/____];
☐ Identification of any reservation-of-rights position;
☐ Identification of any other potentially responsible parties under contribution or indemnity theories;
☐ Confirmation of authority of the recipient to negotiate and settle.

IX. NO CONTACT WITH CLIENT

[CLIENT NAME] is represented by this firm. Pursuant to SD Rule of Professional Conduct 4.2, no representative of any defendant or insurer may contact our client directly. All communications shall be directed to the undersigned.

X. RESERVATION OF RIGHTS

Nothing in this letter shall be construed as: (a) a waiver of any cause of action, theory of liability, or remedy; (b) the satisfaction of any statutory condition precedent; (c) an admission of any fact; (d) an extension or tolling of the limitations period set forth in SDCL § 15-2-14.1 or any other applicable provision; or (e) an exhaustive statement of damages or liability theories. [CLIENT NAME] expressly reserves the right to amend, supplement, or withdraw this demand at any time.

We look forward to your timely response.

Very truly yours,

[LAW FIRM NAME]

________________________________
[ATTORNEY NAME], SD Bar No. [________]
[FIRM ADDRESS]
[PHONE] | [EMAIL]

Attorneys for Claimant [CLIENT NAME]**

ENCLOSURES / EXHIBITS

☐ Exhibit A — Executed HIPAA Authorization
☐ Exhibit B — Itemized Medical Expense Summary
☐ Exhibit C — Life-Care Plan
☐ Exhibit D — Vocational / Economic Loss Report
☐ Exhibit E — Photographs / Imaging (where appropriate)
☐ Exhibit F — Day-in-the-Life Materials (where appropriate)

INTERNAL CALENDARING NOTES — REMOVE BEFORE SENDING

Sources and References

• SDCL § 15-2-14.1 — Time for bringing medical malpractice actions: 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 § 19-19-408 — Compromise offers and negotiations inadmissible: https://sdlegislature.gov/Statutes/19-19-408
• SDCL § 19-19-409 — Offers to pay medical expenses inadmissible: https://sdlegislature.gov/Statutes/19-19-409
• 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: https://sdlegislature.gov/Statutes/15-8-15.1
• SDCL § 58-12-3 — Insurer vexatious-refusal: https://sdlegislature.gov/Statutes/58-12-3
• SDCL § 19-19-702 — Daubert expert standard: https://sdlegislature.gov/Statutes/19-19-702
• SDCL § 21-5-1 — Wrongful death: https://sdlegislature.gov/Statutes/21-5-1
• Knowles v. United States, 544 N.W.2d 183 (S.D. 1996)
• Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556
• Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997)
• NCSL — Medical Liability/Malpractice Merit Affidavits and Expert Witnesses