South Dakota Cerebral Palsy Lawsuit Filing Process

Fact Checked

If your child has been diagnosed with cerebral palsy, you have the legal right to seek damages if the disorder resulted from medical negligence. A medical malpractice case could provide damages to cover the costs of medical care, accommodations, and home care.

If your child faces discrimination or a violation of civil rights, a lawsuit may the best way to resolve the situation. Whatever type of suit you file in the South Dakota, be sure to rely on the guidance and advice of an experienced South Dakota cerebral palsy lawyer.

What Kinds of Lawsuits Can I File in South Dakota for My Disabled Child?

In South Dakota, you may be in a couple of different situations with your child that could lead to filing a cerebral palsy lawsuit:

• Medical malpractice. If you know or have a suspicion that your child’s condition was caused by a mistake made by a medical professional or hospital, you may want to file a medical malpractice lawsuit. Doctors and other caregivers are obligated to provide an adequate standard of care for patients. When they do not, and the patient is harmed, it is considered negligent, and you may be able to recover damages.

• Discrimination. Both South Dakota and federal laws prohibit discrimination by disability. If your child experiences discrimination, lack of access, or lack of appropriate services in public spaces or school, you can file a complaint with the proper government agency. South Dakota also allows you to sue and file a civil lawsuit if you are not happy with the outcome of filing a complaint.

How Do I File a Cerebral Palsy Medical Malpractice Lawsuit in South Dakota?

Every state has its laws that govern how and when you can file for medical malpractice. Get a good understanding of South Dakota laws and the filing process from start to finish so that you can make the best choices for your child.

File within the Statute of Limitations

First, you must be sure that you are within South Dakota’s statute of limitations for medical malpractice cases. The laws state that you have just two years from the negligent mistake to file. An exception extends that deadline to two years from when you discovered the negligence, but the burden is yours to prove you couldn’t have realized it sooner. [1]

Determining Damages

Next, you’ll want to consider how much you expect to recover in damages. Talk to your lawyer about this. You can request economic damages for actual costs, so you’ll need to share your medical records and bills and any other expenses you have related to your child’s condition, such as travel and mobility devices.

You can also seek non-economic damages, which compensate for things like the fact that your child won’t live independently or for physical pain. South Dakota limited the amount you can recover for these non-monetary costs [2], but cases have challenged the rule. [3]

File the Complaint

Now you’re ready to file the actual lawsuit. Your lawyer will draft and submit a complaint, which outlines the details of your allegations. It also serves to notify the defendants and gives both sides time to investigate, collect evidence, come up with arguments, and consult with experts.

Consider Arbitration

South Dakota offers arbitration to help resolve medical malpractice cases without going to trial. Trials are costly and lengthy, and it benefits everyone to settle things before taking that step. Most defendants are willing to participate because a lawsuit may ultimately cost them more.

An arbitration panel will review the evidence and determine if the defendants are liable. If so, it has 30 days to determine an appropriate amount of damages to be awarded. Both sides must agree. If this fails, you can go to trial.

Go to Court

If you must go to trial, be prepared for the process to take a while. Your lawyer will argue your case before a jury, bringing evidence and expert witnesses, while the other side will try to discredit your claim. The jury will make a final decision and determine the amount of any damages.

How Do I File a Discrimination Complaint in South Dakota?

The process of resolving a case of discrimination for your child is a little different. You do have a right to file a lawsuit, but first, you’ll file a complaint with the South Dakota Department of Labor and Regulation’s Division of Human Rights. [4] This is the agency responsible for handling cases of discrimination in education, housing, public accommodations, and other areas.

• File a complaint. The first step in the process is to officially file a complaint with the Division, outlining your allegations of discrimination.
• Wait for the investigation. The Division will then impartially investigate your case. You’ll have to wait for the results, which you will get in a formal report along with a decision on the matter.
• Conciliation. If possible, you will work with the Division and the respondent, the person you are accusing, resolving the situation.
• Attend a public hearing or file a lawsuit. If the conciliation fails, you can either file a lawsuit against the person or group responsible or participate in a public hearing.

Do I Need a Lawyer to File Cerebral Palsy Lawsuits in South Dakota?

You are free to represent yourself in any legal matter, but this is strongly discouraged.

The process of filing is complicated and requires in-depth knowledge of the laws. Without a lawyer, you could make simple mistakes, like missing deadlines, and lose your opportunity to file or win a case.  Furthermore, you’ll be going up against lawyers of doctors and hospitals, teams of legal experts with a lot of experience fighting these cases.

Choose a lawyer with the relevant experience and knowledge to provide you with the best chance of filing correctly and winning a lawsuit. Your lawyer should specialize in and have experience with medical malpractice, cerebral palsy and disabilities, and civil rights and discrimination.

Don’t settle for a general lawyer, or you risk not winning or not recovering as much in damages as you could.

Filing a lawsuit for your child with cerebral palsy can be intimidating, long, and challenging in South Dakota and other states. The rewards can be high, though, making it worthwhile. To get justice, to improve your child’s experiences, and to recover damages, let a good lawyer in the state help you get through this process.