Tort Law

Desperately seeking med-mal attorneys; $500K damages cap deters South Dakota lawyers, some say

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A South Dakota law enacted in 1976 that was supposed to limit excessive damages in medical malpractice trials may have solved the perceived problem by entirely eliminating many such cases.

Due to a statutory cap on damages that hasn’t been adjusted for inflation in decades, it is economically unfeasible for plaintiffs’ lawyers to pursue many medical malpractice cases in the state, reports the Argus Leader. Taking med-mal cases on a contingency basis can involve huge pretrial costs, yet noneconomic damages are capped at $500,000 under the statute. Adjusted for inflation, that amount would be $2 million in current dollars.

“The cap is a negative in terms of being able to adequately represent people in this particular area,” said attorney Steve Johnson, one of the state’s top trial lawyers. “It simply is.”

He recently decided to stop accepting medical malpractice cases, the newspaper reports.

Jennifer Eastman who says she had her uterus removed due to a botched procedure to remove a dead fetus, couldn’t find a lawyer to take her case because of the damages cap.

Those, however, who support the damages cap say it has achieved its intended purpose of making health care available to state residents, particularly in rural areas.

“I’m not personally aware of the cap on noneconomic damages in medical malpractice being a significant issue in South Dakota,” said Ed Evans, one of the state’s best-known defense lawyers in such cases.

Related coverage:

Pro Publica: “Patient Harm: When An Attorney Won’t Take Your Case”

Pro Publica: “Ten Patient Stories: When Attorneys Refused My Medical Malpractice Case”

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