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Lawsuit Challenges South Dakota's Malpractice Cap

By: Kevin Wilson

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.

South Dakota Pheasant Hunting

By: Chris Hitzeman

Never been to South Dakota pheasant hunting? You might not know what you are missing.

That was the case with me. Having hunted only in Minnesota and Iowa from 1979-1999 I enjoyed the pheasant hunting that the land afforded me and my hunting partners for years.

Being passionate about habitat and wanting to really affect my hunting outcomes and experiences I began looking for pheasant hunting land to purchase, develop and enjoy. I started in Iowa and through several contacts came across a realtor in Iowa who had some land for sale in Iowa but also South Dakota. I had never hunted pheasants in South Dakota but always assumed it was about as good as Iowa (which was way better than Minnesota at the time). After some discussion and persuasion by the realtor I figured I'd have to be stupid not to go out and at least look at the property.

Just driving out there, which was in the springtime, I could tell by how many birds were hanging around the roads that the bird numbers were good. Long story short is I ended up buying the acreage there and hunting/developing the property for pheasants, deer and turkey since 1999. Every opening weekend we harvest between 30-60 birds per day. I also heard stories around the state of parties of 20 hunters getting their 60 bird limit in as little as ½ hour. That's more chaos than hunting I would venture but just the same….that's what South Dakota wild pheasant hunting is capable of producing.

Pheasant Capital of the World? I think most hunters would agree. If you read most pheasant hunting outlooks and forecasts, such as Pheasants Forever or Outdoor News, you'll find that the statistics again and again point to the South Dakota bird and harvest numbers as the reigning leader.

As recently as 2005, the pheasant population approached 10 million birds (1 40-year record). Number of birds harvested that year was nearly 2 million roosters (11.2 birds per hunter. 2 birds per person per day).

This quote from the Pheasants Forever website on the 2005 season sums it up:

"Overview: The 2005 pheasant hunting season was a year to remember across the upper Midwest. South Dakota maintained its hold as the "Pheasant Capital" with an estimated harvest of over 1.9 million roosters, a 40-year high. Iowa, North Dakota and Kansas all checked in with big 800,000 bird totals."

South Dakota boasted a rooster harvest over twice as large as the next nearest competitors.

In addition to the native resource, South Dakota also reigns champ in the offerings of public hunting, free walk-in access to private land and a host of commercial fee hunting opportunities. In fact, it could possibly be that since South Dakota's commercial pheasant hunting is so strong and established that Cabela's in Mitchell can attract hunters from all 50 states in the union on South Dakota's annual opening pheasant weekend.

Today the passionate upland bird hunter, thanks to the internet, has excellent access to whatever quality pheasant hunting package they desire. If it's a pheasant hunting trip of a lifetime you desire, look no further than South Dakota. Whether you're a budget minded do-it-yourselfer looking for the best public land hunt or Bo Jackson looking for that $5000/day experience you can find it. You'll have to do a little research. But it's time well spent.

What ever you do, get to South Dakota soon and experience "The State of Pheasant Hunting".