South Dakota Tort Reform Leaves Malpractice Victims Without Just Recovery

Chris Welsh, Esq.

Lawyers in South Dakota are having to turn away serious medical malpractice cases–but why? A perfect storm of tort reform.

Tort reform advocates have their theories, the most dedicated being that frivolous lawsuits are unpredictably costly and that they deter medical providers from doing their job. Lawsuits, they claim, can be especially damaging to health care systems in rural areas, where doctors may not be able to afford jury verdicts or malpractice insurance. Their hypothesis? Doctors will abandon rural

Attorney Chris Welsh

Attorney Chris Welsh

towns.

This is the hypothetical fear in South Dakota that was cemented into legislation from the 1970’s. Ironically, malpractice cases are actually rare. Studies show that only 2-3% of people injured by medical error seek compensation. In fact, there is little evidence to support the goals of tort reform. Still, the 1976 South Dakota legislature holds the cap on noneconomic damages in malpractice cases at $500,000 without inflationary increase (which would have put it at $2 million today)(ksl.com).

This poses a serious problem to anyone injured by their doctor in a state with such a tort reform cap. Caps on noneconomic damages mean that victims are restricted from awards for pain and suffering, emotional distress, and loss of companionship, among other things–have you ever heard of a life-threatening injury without any of these? Instead, injury awards are largely based on economic losses, like lost wages and certain medical bills. Ultimately, this type of system puts more value on certain lives over others, leaving those without wages, like children, mothers, and the elderly, without a way to recover damages–even if they are left with life-altering injury.

This type of malpractice scheme also makes it very difficult for lawyers to do their job. Injury lawyers work on a contingency basis, meaning that they are not paid for their work until a verdict is awarded or a case is settled. Traditionally, lawyers take on cases, investing long hours to investigation, evidence, testimony, negotiation, and trial. This process easily amounts to hundreds of thousands of dollars, often times over many years. With the outdated cap at $500,000 and a chunk of whatever is settled going to the insurance company, the attorney and their client may end up breaking even or negative. Even top plaintiff lawyers are throwing up their hands, saying the cost is too much.

At the end of the day, even the most serious victims are left without relief or any validation. Consider Jennifer Eastman, who went to the hospital to have a dead fetus removed from her uterus. During her procedure, the doctor perforated her uterus. She nearly bled to death, ultimately losing her uterus and ability to have children. Due to the caps in South Dakota, she couldn’t find an attorney to take her case.

Still, advocates for caps on noneconomic damages argue that they help maintain strong health care systems. Clearly, they are conveniently turning their shoulder to the reality of their scheme. Tort reform is too often pushed forward by invalidating the lives those it claims to protect–our families. Ultimately, only insurance companies and doctors are left with any benefit. Such a system isn’t just insult to injury, it is an injustice.

*Information on South Dakota shared from Jennifer Eastman’s story on kls.com. To learn more about the reality of tort reform, check out our blog archive following the issue.

 

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