Malpractice Litigation

On January 10, 2018, the South Dakota Supreme Court served strong notice to those who make a habit of seeking to quickly resolve claims following an injury.  The case was Kathy A. Schaefer v. Sioux Spine and Sport, Prof. LLC, and Nathan J. Flanders v. Herbert Tollefson.  2018 S.D. 5.  In Schaefer, the Plaintiff, a passenger, was injured in an auto accident in June of 2013 when the vehicle she was riding in was rear-ended by Defendant Flanders.  The Plaintiff was transported from the scene by ambulance.  At the hospital, she had an x-ray which revealed no injury.  She was diagnosed with a neck sprain and chest contusion and released.  Two days after the accident, the Plaintiff was contacted by an adjuster for Defendant Flanders’ insurer and within two weeks the adjuster asked for a demand and made an offer to resolve the claim.


On December 20, 2017, the South Dakota Supreme Court affirmed a June 2016 jury verdict in favor of a pediatric gastroenterologist, Dr. Stephen Nanton.  The case was captioned Basil O’Day and Tracy McClure, as Guardians Ad Litem for N.W.O. v. Stephen Nanton, M.D. 

According to the Supreme Court’s Opinion, the Plaintiffs sued Dr. Nanton for medical malpractice alleging that he improperly treated N.W.O., an infant at the time of treatment, with a prescription drug called Reglan.  After a week-long trial, the jury found in Dr. Nanton’s favor, concluding that he did not violate the standard of care in treating N.W.O.


Conflict can arise in almost every facet of health care.  Issues may include employment and credentialing disputes, traditional malpractice claims, premises liability charges, family disputes in a hospital, denial of claims for reimbursement, disagreements related to the buying and selling of physician practices, and hospital mergers and acquisitions.  While Alternative Dispute Resolution (ADR) is being more commonly used to efficiently resolve disputes, the American Bar Association (ABA) recently noted that “anecdotal evidence suggests that the health care industry and the legal profession with an interest in health care have lagged behind others in embracing the broad array of dispute resolution techniques to address conflicts and resolve disputes.”  For this reason and others, the ABA adopted a resolution urging “lawyers and all interested parties to encourage the informed and voluntary use of alternative dispute resolution (ADR) processes as an effective, efficient and appropriate means to resolve health care disputes.”

The key to successful ADR is to address issues before relationships break down, individuals take sides, and costs begin to rise.  ADR offers many benefits in comparison to traditional litigation, including:

  • Cost efficiency
  • Expertise of a neutral arbitrator
  • Flexibility of the process and solutions
  • Ability to maintain long-term relationships
  • No or little discovery
  • Confidentiality and privacy
  • Enforceability of the resolution

Next time a conflict arises in your healthcare practice, ADR should be something considered at the outset.

Find the ABA’s resolution here:

For many years, medical providers have been faced with the task of untangling the web of medical and ethical issues surrounding end of life decisions.  More recently, the profession has successfully navigated the problem by pushing for patients and the general public to complete healthcare directives or other documentation clarifying their wishes.  However, this most recent movement has created an interesting twist on the same old problem – what happens when a medical provider fails to actually follow a patient’s written directive?

Paula Span, a writer for the New York Times, recently published an article documenting the new trend of lawsuits brought against medical providers for ignoring a directive and actually saving a patient’s life.  Among other specific accounts, her article documents a Maryland woman who had a Medical Order for Life-Sustaining Treatment stating that she did not want life saving care if her heart or lungs failed.  When she was found blue in her bed at the hospital, staff revived her through CPR and defibrillation, saving her life but breaking her ribs, collapsing one of her lungs, and ignoring her wishes in the process.  The patient and her family brought suit for a variety of damages, including for recovery of the cost of the hospital bills she would have never incurred.  The case is set to go to trial in November of this year.


On December 21, 2016, the South Dakota Supreme Court in Wipf v. Alstiel required a defendant surgeon in a perforated bowel case to redact and provide the plaintiff with non-party patient medical records from his last five years of practice.  The records became relevant to the case when the defendant’s expert testified that the plaintiff would “have to show an unacceptably high complication rate in similar procedures with different patients.”

In its 3-2 split decision, the South Dakota Supreme Court reviewed SDCL 19-19-503(b) (the physician-patient privilege).  The Court took a narrow view of the privilege, finding that it only protects “confidential communications” contained in a medical record and concluding that medical records are not “confidential communications” per se.  The Court did provide further guidance on the types of redactions a covered entity or provider must make before disclosing these types of records.

In an uncharacteristically scathing dissent, Chief Justice Gilbertson attacked the majority’s holding on numerous grounds, calling its analysis “result-oriented” and noting that the majority misinterpreted SDCL 19-19-503(b), undercut policy in South Dakota that encourages honest conversations between a physician and patient, and called into question the traditional scope of many other codified privileges in this state.  Justice Severson penned his own dissent, joining Justice Gilbertson and further discussing the majority’s misinterpretation of SDCL 19-19-503(b).

Continue Reading South Dakota Supreme Court Opens Door to Discovery of Non-party Patient Records

On February 8, 2017, a Federal District Court in Texas provided a noteworthy ruling requiring a Texas hospital to void a NPDB report about a surgeon on its staff.  The underlying facts are simple: The surgeon was peer reviewed as a result of two cases; The MEC recommended proctoring for five cases; The hospital’s Board followed the MEC’s recommendation, however, it did not specify a timetable for completion of the proctoring; After the five proctored cases were not completed within 30 days, the hospital reported the surgeon to the NPDB.  The surgeon brought suit seeking various forms of relief, one being his request that the NPDB report be voided.

Continue Reading Texas Federal Court Provides Guidance on NPDB Reporting

On April 13, 2016, the South Dakota Supreme Court issued an important opinion in Berry Thomas Pitt-Hart, MD v. Sanford USD Medical Center.  The Pitt-Hart case involved a patient who had knee surgery at Sanford USD Medical Center (“Sanford”) on November 10, 2009.  The day after surgery, he alleged he was dropped and injured due to the negligence of a patient-care tech.  He commenced suit against Sanford on September 14, 2012.  Sanford argued that the claim was barred by SDCL 15-2-14.1’s two year limitations period.

The patient tried to circumvent the reach of SDCL 15-2-14.1 in three ways.  First, he argued that, since his claim was based upon the simple negligence of a tech, not the negligence of a health care practitioner like a surgeon negligently completing a procedure or a physician making the wrong diagnosis, the traditional, longer, three year negligence statute of limitations should apply.  The Court rejected this argument, reasoning that when a defendant like a hospital is named, SDCL 15-2-14.1 applies to all the alleged “errors” and “mistakes” committed in the healthcare setting.

Next, the patient argued that SDCL 15-2-14.1 should have been tolled based upon Sanford’s fraud and estoppel.  In prior case law, the South Dakota Supreme Court had gone back and forth in referring to SDCL 15-2-14.1 as a period of limitations on some occasions, and of repose on others.  Here, the Court took the opportunity to clarify and confirm that SDCL 15-2-14.1 is a statute of repose that cannot be delayed by estoppel, tolling, or fraudulent concealment.  Per SDCL 15-2-14.1, two years after a medical error or mistake occurs, liability “no longer exist[s].”

Lastly, the patient argued that SDCL 15-2-14.1 should be tolled based upon the continuing treatment doctrine.  The South Dakota Supreme Court also rejected this argument, clarifying that South Dakota does not recognize a continuing treatment doctrine, but only a continuing tort theory that could delay the start of the statute of repose “(1) [when] there was a continuous and unbroken course of negligent treatment; and, (2) [when] the treatment was so related as to constitute one continuing wrong.”

The full version of the Pitt-Hart opinion can be found here:

SDCL 15-2-14.1 can be found here: