A medical malpractice complaint filed this month in Sioux Falls seeks to challenge the constitutionality of South Dakota’s cap on non-economic damages.
South Dakota limits the amount of such damages to $500,000. That includes what’s commonly thought of as pain and suffering, as well as disability and disfigurement. There’s no limit to the amount of economic damages, however, including loss of wages and medical bills.
The law dates to 1976, but a complaint filed by a family from Pine Ridge seeks to change it. Louis and Michelle Martin say their infant daughter suffered severe brain damage last year because of negligence by a Sioux Falls hospital, and they’ve suffered damages that amount to more than $500,000.
“The goal basically is to make sure my family is OK and my daughter is OK,” said Louis Martin, the father of Aspen Martin, 1.
Though at least one legislator says its unlikely the cap will be taken up during the next legislative session, the Martins hope to foster change by taking their case to the South Dakota Supreme Court.
When introduced, the cap reversed a crisis in South Dakota in the 1970s. With no cap on damages, the insurance firm that underwrote the bulk of medical malpractice policies refused to issue new policies and even threatened to leave the state entirely.
“We faced the prospect of doctors not being able to have coverage,” said Pierre lawyer David Gerdes, longtime legal counsel and lobbyist for the South Dakota State Medical Association. “We believe this had a very positive effect on retaining doctors in South Dakota; not only new doctors, but retaining the ones we had here.”
“Basically out of luck”
Lawyers who represent plaintiffs in medical malpractice lawsuits say the cap helped create a hostile legal environment for such cases. Many lawyers turn away legitimate cases because they are costly to argue and almost impossible to win, said Nancy Turbak Berry, a Watertown lawyer and Democratic state senator.
“If you’re a patient hurt by the medical community in South Dakota, you’re basically out of luck,” she said.
South Dakota was one of a handful of states cited by Medical Economics magazine in 2002 as having a “downright balmy” medical malpractice litigation environment. From 1990 to 2006, South Dakota’s median payment for medical malpractice payments was $75,053, the seventh-lowest in the nation.
Scott Hoy, the Sioux Falls lawyer representing the Martins, said the cap is unconstitutional in part because it protects health care providers as a special class of people. There’s no limit to the civil damages that a victim can seek in a car accident, for example.
“The Legislature is not to make laws that are for a specific association or for specific individuals,” Hoy said.
Cap’s fairness challenged
Hoy seeks to change the cap through a complaint filed this month in which the Martins allege that Aspen suffered severe brain damage because of negligent care she received at Sanford USD Medical Center last year.
The complaint alleges that a feeding device was not placed in the baby’s stomach but rather in her abdominal cavity by Dr. Adela Casas-Melley. It also alleges that the procedures to check the correct placement of the device were done incorrectly, and the baby was poisoned by barium, a substance used in X-rays.
Sanford Health declined to comment on the case. Medical X-ray Center referred questions to its lawyer, Kathryn Hoskins of Sioux Falls. Hoskins said she didn’t have enough information on the case yet to comment.
Though the cap limit could be changed by the Legislature, Turbak Berry doesn’t expect lawmakers to consider it anytime soon.
“There’s no question in my mind that it should be changed,” she said.
Short of changing state law, the issue could be appealed to the Supreme Court. That could happen if the case goes to trial and the Martins lose.
Michael Myers, a University of South Dakota law professor and former hospital executive, said the Martin complaint could present a valid challenge to the law.
“The Martin case puts forth circumstances of such profound injury as to challenge the fairness of a cap,” he said.
Caps on malpractice damages largely have withstood legal challenges in courtrooms nationwide and have been promoted as a way to ease malpractice insurance programs, Myers said. A lawsuit challenging Illinois’ $500,000 cap on non-economic damages _ enacted in response to spiraling malpractice insurance premiums in the state is expected to go before the state’s Supreme Court this fall.
Information from: Argus Leader, http://www.argusleader.com :49
Topics Lawsuits
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