Medical Malpractice - KOTA Territory News

Medical Malpractice



Gary Jensen
Beardsley, Jensen and Von Wald

Medical malpractice cases are perhaps the most contentious of all lawsuits involving unrelated parties.  They raise all sorts of issues and emotions.

Why does the law allow for medical practice claims?  What societal goals are they designed to serve? 

Are there too many malpractice claims made in South Dakota or elsewhere in the country?  Too few?

How many patients are injured or die every year as a result of medical malpractice?  What would nurses and health care administrators say about that – would they agree with a physician's perspective?      

How many doctors are wrongfully sued every year?  How many should be sued, but are not?  Should a doctor, nurse, or hospital administrator be required to tell a patient he or she has been a victim of medical malpractice? 

What does a patient have to prove in order to win?  Does a South Dakota jury give equal consideration to the patient and doctor?  Would you get a different answer from a juror, lawyer, or judge? 

Could you be fair to both sides – the patient and the doctor?

How many times has a patient won in a South Dakota court the last one hundred years?  How many malpractice cases have ever been tried in South Dakota?  Was a malpractice case tried in Rapid City in 2009?   How does our experience compare to other states?

Where does a patient find a doctor to evaluate his or her case and testify against a doctor if warranted?  How expensive is that, who pays for it?  What if the patient can't afford to have his or her case evaluated? 

How many lawyers will undertake a patient's malpractice case?  What does it really cost – time, money, and emotion – to take such a case to trial? 

Do doctors and their malpractice carriers settle claims?  Which ones, why?  If a patient's case is not settled and goes to trial, what are the odds he or she will win? 

If a patient is a victim of malpractice, should his or her damages be limited by the Legislature or should a jury decide the amount of damages as they do in other types of lawsuits?  Do health care providers deserve special litigation protections because of who they are and what they do?

For malpractice claims, should doctors be treated differently than other professionals like lawyers, accountants, engineers, realtor, and insurance salesmen?  Why or why not?

If a negligent doctor doesn't pay for the damages caused by his or her malpractice, then who does?  What if nobody does?  Who pays for all the care required to treat the consequences of medical malpractice?

Are frivolous claims made by patients and, if so, how does our court system deal with them?  Does the patient pay a penalty of any sort for bringing a frivolous claim?  What should such a penalty be?

Does concern about malpractice claims cause doctors to order tests they otherwise would not order and really aren't necessary?  Does it make our health care more expensive?    

Are we safer because doctors know they can be sued for damages caused by their negligence?  Or, are we just poorer?

Do doctors police their own?  How?  Effectively?

How do other countries handled this sensitive subject?  Are any of those systems better than ours?    

Do we need change?  Who should decide what that change should be – the judicial or legislative branch of government?  What role should lobbyists and money play in crafting that change?  Is change "reform" or is it just change.

Why have the political parties chosen sides – what does that tell us, if anything, about what the facts really are and what "reform," if any, is needed?    

What's your perspective?  Are you a doctor or health care provider?  Do you have a close friend or family member that's a health care provider?  Have you, a friend, or family member been the victim of malpractice?

Has anybody conducted an objective study on any of these issues?  Does anybody really care about what those studies have concluded about these very sensitive issues?

Why does any of this make a difference to you and your family? 


So many questions, what about answers?



E-mail Gary is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.

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