South Dakota Medical Malpractice Law

What is Medical Malpractice



Medical Negligence


  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,


  • Mistakes in the prescription or dosing of medication.

Informed Consent



Damages in South Dakota Malpractice Cases


Damages Caps

In South Dakota, non-economic (pain and suffering) damages in medical malpratice cases are capped at $500,000.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. South Dakota follows a modified rule pursuant to which if a court enters a judgment against any party on the basis of joint and several liability, any party to whom less than fifty percent of the total fault is allocated may not be held jointly liable for a share of the damages more than twice the percentage of fault attributed to that party.

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. South Dakota has eliminated the collateral source rule for medical malpractice cases.

The Statute of Limitations for Medical Malpractice in South Dakota

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In South Dakota, the statute of limitations is two years from the act or omission alleged to have caused the plaintiff's injury. For minors under the age of eighteen, the statute of limitations starts to run at the age of majority, but if the statute of limitations would otherwise have expired the statute of limitations may not be extended by more than one year after the plaintiff reaches the age of majority.

Additional Rules for South Dakota Malpractice Cases

Additional rules affecting malpractice litigation in the State of South Dakota include:

Alternative Dispute Resolution

In South Dakota, a health care provider may enter into an agreement with a patient to resolve any future malpractice claim by arbitration. The agreement must meet specific statutory requirements to be valid, and may be canceled by the patient by written notice to all parties. Cancelation does not affect the application of the agreement to services rendered prior to the date of cancelation. The agreement may not be required as a prerequisite to obtaining medical care. Arbitration is a two-stage process. First the arbitration panel decides issues of liability. If liability is found, the parties have thirty days during which they may attempt to settle the claim. If they do not reach a settlement, the panel is reconvened to determine the amount of damages, if any, that should be awarded to the plaintiff.

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. South Dakota's apology rule provides that no statement made by a health care provider apologizing for an adverse outcome in medical treatment, no offer to undertake corrective or remedial treatment or action, and no gratuitous act to assist affected persons is admissible to prove negligence by the health care provider in any action for damages for injury or death alleging malpractice against any health care provider. However, the rule does not prevent the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making the statement.

Why Consult a Medical Malpractice Lawyer


