Articles Posted in South Dakota

A South Dakota judge ruled this week that health care providers are subject to negligent credentialing lawsuits when they fail to properly malletjusticecredential doctors.

Judge Bruce Anderson made another important ruling: that even people on the credentialing committee may be subject to suit.   This has not real practical implications because a hospitals is going to stand behind the committee.  But it is never fun to be sued personally even if you have no real exposure.

The judge also found that hospitals cannot claim peer review privileges, as an absolute defense against discovery requests.  This is very pro patient safety and could be a ruling that could start to erode the absolute defense from discovery; that has long been the case in Maryland and in most states. The judge’s logic: hospitals may have an obligation, in some cases, to the public that outweighs peer review confidentiality.  Makes a lot of sense to me.

Continue reading

An interesting one here. A 28 year old prison inmate is suing the hospital that circumcised him as a newborn. The reason? He is claiming the procedure has robbed him of his sexual prowess.

He is alleging that the doctor misled his mother into thinking that the circumcision was a necessary medical procedure. He is arguing that it was unnecessary, unethical and without medical benefit.

What’s even more odd is what he is asking for as compensation. In addition to $1,000 in compensatory and punitive damages, he is asking that his foreskin be restored “in the hopes I could feel whole again,” though he acknowledges that he doesn’t expects the “restoration” to be anything more than aesthetic.

A South Dakota woman filed a lawsuit against two mining companies and Johnson and Johnson last week, alleging the companies have been failing for decades to warn consumers of the association of talcum powder and ovarian cancer.

Plaintiff’s lawsuit alleges that talc particles cause tumors in human ovaries. Plaintiff used talc-based body powder each day for over 30 years and contracted ovarian cancer in 2006.

I suspect the thrust of the lawsuit is that the National Toxicology Program found in 1993 that cosmetic grade talc caused tumors in animal subjects. The FDA has taken no action, and cosmetic grade talc remains unregulated by the federal government.

On the Legal Blog Watch, Robert J. Ambrogi gives us another example of how the Internet is intruding on jury trials. The South Dakota Supreme Court found that the trial judge did not abuse his discretion in declaring a mistrial in a seat belt defect wrongful death case because of a juror’s Google searches.

You can read the entire South Dakota Supreme Court opinion here.

The South Dakota Supreme Court has upheld South Dakota Circuit Judge Jon Erickson’s decision to grant a new trial in a medical malpractice lawsuit against a Huron doctor. The medical malpractice lawsuit arose out of complications from gall bladder surgery in 2001. The jury instruction stated:

A doctor is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.

Last week in Baddou v. Hall, the South Dakota Supreme Court either enunciated new law or affirmed existing law (depending upon your perspective) on whether South Dakota has a presumption of negligence in Rapid City rear-end car accident case. The court’s answer: it does not.

This is bad law, in my opinion, because it makes South Dakota car accident lawyer prove a negative. Rear-end car accidents rarely happen in the absence of negligence and the defendant is the one in the best position to know the nuance of the negligence. It is basically a technicality generating law.

I disagree with the Plaintiff that a rear end accident should be negligence per se. Instead, the better law, applied in many states such as Florida, Maryland, and Colorado, is that there is a rebuttable presumption of negligence in rear end accident cases.