Prevention of Medical Malpractice Claims see page 5 · JANUARY/FEBRUARY 2014 ISSUE NO. 272 Inside this issue…. Prevention of Medical Malpractice Claims — see page 5 IN MEMORIAM

J A N U A R Y / F E B R U A R Y 2 0 1 4 I S S U E N O . 2 7 2

Inside this issue….

Prevention of Medical Malpractice Claims

— see page 5

IN MEMORIAM …. Ron Aho — page 6

Tips for Picking a Juror — page 7

SDTLA Spring Seminar is Catching Fire! -

see page 10

Law School Times

and much, much more…..

SDTLA CALENDAR OF EVENTS 2014

Jan 14 – March 14 South Dakota Legislative Session January 21 Board Conference call, 11 am CT February TBA Board Meeting for legislative purposes April 17 Board Conference call, 4 pm CT May 8 Board meeting 11 am & Spring Seminar 1pm Grand Falls Resort, Larchwood, IA May 9 Spring Seminar, 9– Noon Grand Falls Resort, Larchwood, IA

June 18 Board Meeting at Bar Convention, Sioux Falls, 11 am June 19 Annual Meeting and Elections, Sheraton Sioux Falls July 17 Board Conference call, 11 am CT August 14 Board meeting, 11 am Holiday Inn Express, Vermillion

Mock Trial 1pm, USD Law School Courtroom September 25 Board meeting, Lodge of Deadwood

Fall Seminar & Banquet, Lodge of Deadwood

September 26 Fall seminar, 9 – noon, Lodge of Deadwood

January/February 2014

PRESIDENT ’S MESSAGE….

B Y S T E P H A N I E E . P O C H O P

Officers President: Stephanie E. Pochop

President-Elect: G. Verne Goodsell Secretary-Treasurer: Steven C. Beardsley

Board of Governors

Timothy Rensch, AAJ Delegate Richard D. Casey, AAJ Delegate

Clint Sargent, AAJ Governor Terrence R. Quinn, AAJ Governor

Aaron D. Eiesland Casey W. Fideler Alecia E. Fuller

Raleigh E. Hansman Margo Tschetter Julius

Ryan Kolbeck Brad J. Lee

Melissa B. Nicholson Kasey L. Olivier Robbie J. Rohl

McLean Thompson Kerver T.J. Von Wald

Past Presidents

Immediate Past President Steven S. Siegel

William J. Holland - Stan Siegel

Joseph M. Butler - John H. Zimmer Carleton R. Hoy - Horace R. Jackson William F. Day Jr. - Vincent J. Protsch

Gale E. Fisher - A. William Spiry Franklin J. Wallahan - Gerald L. Reade

Rick Johnson - David V. Vrooman Terence R. Quinn - Thomas R. Pardy

Charles M. Thompson - David R. Gienapp Gary E. Davis - Gregory A. Eiesland James S. Nelson - Robert J. Burns

Brent A. Wilbur - Steven M. Johnson Glen H. Johnson - William J. Srstka Jr.

Gary D. Jensen - John P. Blackburn Michael W. Day - Michael J. Schaffer

Bruce M. Ford - Nancy J. Turbak Berry Scott Heidepriem – Michael D. Stevens Robert L. Morris II - Richard D. Casey

Jon Sogn – Mark V. Meierhenry Brad Schreiber – Jeff A. Larson Mark Connot – Tina M. Hogue

James Roby - Wally Eklund Michael F. Marlow - Clint Sargent

Michael A. Wilson—Roger A. Tellinghui-sen

Association Office 104 W Spring Creek Dr — PO Box 1154

Pierre, SD 57501-1154 605-224-9292

The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submis-sions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of $25 are included in the Association’s annual membership dues. Non-members subscription rate is $50 per year. Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.

Page 2

Continued on page 20

Well that escalated quickly: it’s already 2014 and we are at the front end of another legisla-tive season. Have you kept up with your New Year’s resolutions? It is only the middle of Jan-uary but it already feels a little late to be talking about sticking to pledges about living healthier and working happier. This year I haven’t wait-ed until March to drop a couple of my more difficult ones; I shelved them early -- a move that allows me to meet my other goal of be-coming more practical in 2014. I love win/win resolutions. As humans, and more specifically as trial law-yers, we are hard-wired for achievement via goal setting. Many studies suggest that even half-hearted or improbable goal setting is better for our performance as professionals than none at all. Practically every study of goal set-ting shows that the only way your dream has the chance of becoming your reality is to build some concrete planning into it. (And good news for the really uninspired: there is an app for that. Several companies offer software programs designed to help us keep our bucket lists “visual and present” as we battle daily against donuts, lounging about and sundry other excuses for why we aren’t going to the gym or working on the final draft of an article for The Barrister.) The SDTLA has its own set of resolutions that identify our core values as an organi-zation. Here they are:

Preserve the jury system. Promote justice and efficiency in all matters pertaining to the trial of civil and

criminal cases. Establish a high standard of ethics among trial lawyers. Clarify and simplify trial procedures. Promote a program of continuing education in trial practice. Encourage and assist younger members of the part to become trial lawyers. Create good fellowship and friendship among members, and a sense of

pride in the Association and its purpose. Promote laws, rules and regulations to accomplish the above purposes and

to promote the public good. Please let us know: Are we meeting our goals as an organization? Do we need to refine or expand our SDTLA bucket list? Your feedback helps us make the con-crete planning necessary to fulfilling these goals. While you are thinking about this, consider why you are a member of the SDTLA. There are specific, measurable, achievable, relevant and time specific things you can do as an SDTLA member to help the organization this year. Need some easy-to-achieve examples? Sign up for and attend our Spring CLE. Invite a new lawyer to attend the CLE with you. Send an email to your legislators thanking them for their service and offering to offer help them with legal questions during the legislative

January/February 2014 Page 3

Scott A. Abdallah Michael C. Abourezk Charles Abourezk Grant G. Alvine Stephanie R. Amiotte Kenneth E. Barker Steven C. Beardsley John P. Blackburn Michael D. Bornitz John William Burke Michael J. Butler Renee H. Christensen

$1,800 ANNUAL Michael F. Marlow

Lee C. “Kit” McCahren Stephanie E. Pochop

$1,200 ANNUAL

Kenneth E. Barker John P. Blackburn Aaron D. Eiesland

Gregory A. Eiesland Scott N. Heidepriem

Clint Sargent Michael D. Stevens

Roger A. Tellinghuisen

$1000 ANNUAL Scott Hoy

$900 ANNUAL Gary D. Jensen

Nancy Turbak Berry

$720 ANNUAL Michael A. Wilson

$600 ANNUAL Terry L. Hofer

Margo T. Julius Mark V. Meierhenry

James C. Roby Michael J. Schaffer

Whiting Hagg & Hagg

$500 ANNUAL John W. Burke

Courtney R. Clayborne Terry Pechota

SDTLPAC is the political action committee of the SD Trial Lawyers As-sociation. Organized in 1987, SDTLPAC contributes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice sys-tem. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!

$480 ANNUAL Jon C. Sogn

$300 ANNUAL

Charles Abourezk Steven C. Beardsley G. Verne Goodsell Wm. Jason Groves

Paul H. Linde Thomas Tobin

$240 ANNUAL

Richard D. Casey

$200 ANNUAL Stephanie Amiotte

$180 ANNUAL

Brad J. Lee

$150 ANNUAL Jeremiah “Jay” Davis

$120 ANNUAL

Kenneth D. Bertsch Daniel F. Duffy

Richard A. Engels Dennis W. Finch

Robert B. Frieberg Alecia E. Fuller

George E. Grassby Ryan Kolbeck

Michael Paulson Catherine V. Piersol

Haven L. Stuck T. J. Von Wald

SUSTAINING MEMBERS

Sustaining members pay $700 in dues each year, which entitles them to attend the Association’s annual fall seminar, the annual meeting and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to sustain funding for an on-going defense of the civil justice system!

Fred J. Nichol Award for Outstanding Jurist

Hon. Ernest W. Hertz – 2000 Hon. Andrew W. Bogue - 2001

Hon. John B. Jones – 2002 Hon. George W. Wuest - 2003 Hon. Marshall P. Young – 2004

Hon. Robert A. Amundson – 2005 Hon. Lawrence L. Piersol – 2006 Hon. Richard W. Sabers – 2007 Hon. Judith K. Meierhenry - 2008

Hon. Tim D. Tucker – 2009 Hon. David R. Gienapp - 2010 Hon. Jack Von Wald – 2011

Hon. John Bastain - 2012 Hon. David Gilbertson -2013

TRIAL LAWYER OF THE YEAR AWARDS

87-88 Terry Quinn 88-89 Greg Eiesland 89-90 Steve Johnson 90-91 Glen Johnson 91-92 Bob Burns 92-93 Gary Jensen 93-94 Joe Butler 94-95 Mark Meierhenry 95-96 Jeff Larson 96-97 Nancy Turbak 97-98 David Gienapp 98-99 Rick Johnson 99-00 Jim McMahon 00-01 Mike Schaffer 01-02 John Blackburn 02-03 William F. Day, Jr. 03-04 Michael Abourezk 04-05 Michael W. Strain 05-06 Patrick Duffy 06-07 Thomas G. Fritz 07-08 Michael J. Butler 08-09 Wally Eklund 09-10 James D. Leach 10-11 N. Dean Nasser, Jr. 11-12 Stanley Whiting 12-13 Charles M. Thompson

LIFETIME ACHIEVEMENT AWARD Carleton “Tex” Hoy John F. Hagemann Robert C. Ulrich

J. Michael Dady Patrick K. Duffy Gregory A. Eiesland Aaron Eiesland Dennis W. Finch Jay R. Gellhaus G. Verne Goodsell Scott N. Heidepriem Scott G. Hoy John R. Hughes Gary D. Jensen Steven M. Johnson

George Johnson David J. King Jeff A. Larson James D. Leach Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry N. Dean Nasser James S. Nelson Stephanie E. Pochop Terence R. Quinn Timothy J. Rensch

James C. Roby Michael K. Sabers Clint Sargent Steve S. Siegel Michael J. Simpson Michael D. Stevens Michael W. Strain Roger A. Tellinghuisen Thomas P. Tonner Nancy J. Turbak Berry TJ Von Wald Thomas K. Wilka Michael A. Wilson


TOAST OF TRIAL LAWYERS

June 2006 Nancy Turbak

T.F. Martin Travis Jones

Michael Stevens

June 2007 Roger Tellinghuisen

Mike Butler Eric Schulte

June 2008 Sid Strange Jerry Reade Jim Leach

June 2009

Mike Abourezk Alecia Garcia

Scott Heidepriem Shiloh MacNally Doug Cummings

June 2010

Michael DeMersseman Hon. John Schlimgen

Joni Cutler Margo Julius

Scott Abdallah

June 2011 Susan Sabers TJ Von Wald John Murphy Steve Siegel

June 2012

John Blackburn Linda Lea Viken Hon. Mark Smith Ronald Parsons

June 2013

Rep. Michael Stevens Hon. John Hinrichs Hon. Michelle Percy

Clint Sargent McLean Thompson Kerver

Eric C. Schulte Tim Rensch

Stephanie Pochop Richard Casey Ryan Kolbeck

EDITOR’s Notes & Comments Marya V. Tellinghuisen

Goals are dreams with deadlines. ~Diana Scharf Hunt

January seems to be a great month to make resolutions and set new goals. Our president, Stephanie, has urged you to take a moment to make some goals related to your membership with SDTLA. I have to admit that I’m not much of a resolution type girl. I often tell the story that one year I decided I was going to be quiet and blend in. When asked how I did, I replied that I made it about 4 days. It was simply too hard. That having been said, you should set a goal that is realistic. I would love it if you all decided to submit an article to the Barrister for publication. This month our lead article was submitted to us by Judge Hoffman who had our author in a class he was teaching. I would like to thank Judge Hoffman for submitting this excellent article written by Catherine Olson. Perhaps another small goal would be to send an email to a legislator on a piece of legislation that SDTLA is involved in. I have had a few email con-versations with my SDTLA mentee, Harrison Hagg. I am looking forward to meeting him in the future. I have to say that it is much more fun to see an email from him in my inbox than the usual stuff. Have you encouraged your mentee to attend the Larchwood spring seminar? If not, it is a great oppor-tunity to start recruiting our next generation of trial lawyers. You would be surprised at the impact a personal invitation from a “real” trial lawyer has on a young law student. Greg Eiesland has submitted a touching tribute about his classmate and friend, Ron Aho, who died earlier this month. Our student liaison, Kelsea Sutton, has written an update about the law school activities going on this semester—sounds like a busy place. Session is underway and Roger and Sara are busy tracking bills. They would both appreciate any help and sup-port you could send their way. And finally, I wrote an article about jury se-lection. The next time I write to you, we will be finishing up another legisla-tive year…let’s make it a great one for the South Dakota Trial Lawyers As-sociation.

Page 5 January/February 2014


PREVENTION OF MEDICAL MALPRACTICE CLAIMS Increased Patient Safety and Prevention of Medical Malpractice Claims

through Early Disclosure Programs By Catherine B. Olson

Abstract

“[Medical] malpractice suits are a feared, often infuriating, and common event in a doctor’s life. The average doctor in a high-risk practice like surgery or obstetrics is sued about once every six years. Seventy percent of the time, the suit is either dropped by the Plaintiff or won by the doctor in court. But the cost of defense is high, and when doctors lose, the average jury verdict is half a million dollars.” High, and rapidly increasing, insurance premiums compound the issue. “General surgeons pay anywhere from thirty thousand to three hundred thousand dollars a year in malpractice-insurance premiums… Neurosurgeons and obstetricians pay upward of 50 percent more” (Gawande, 2007, p. 87). Most individuals, whether attorney, physician, or common layperson, partially attribute rising medical costs to high rates of medical malpractice suits and, as a result of medical malpractice suits, increasing insurance premium rates. Addi-tionally, these issues affect more than the cost of medicine - they are beginning to affect the availability of certain spe-cialties in some areas of the United States. “Physicians’ most prevalent response to liability concerns has been to re-strict the scope of practice or decrease the number of practitioners in a group practice who provide high-risk ser-vices” (Mello, 2005, p. 625). This paper will examine the history of medical malpractice within the United States and the factors responsible for increased rates of medical malpractice lawsuits. Additionally, it will consider current trends to prevent medical malpractice lawsuits and possible strategies for the decrease in rates of the medical malpractice, in-cluding, but not limited to, the practice of early disclosure of medical injuries as a deterrent to medical malpractice law-suits.

Background “The history of healthcare institutions begins with the almshouses of the Middle Ages... A vestige of this history is church groups’ sponsorship of so many of today’s hospitals. Given their charitable nature, hospitals, and many other organizations were held to be immune from tort liability lest their good deeds be diminished by jury awards” (Showalter, 2012, p. 157). According to Showalter, support for the “doctrine of charitable immunity” declined in the twentieth centu-ry. As healthcare evolved into the market-driven business it is currently, courts “began to treat ‘not for profit’ enterpris-es in the same manner as other companies so far as third-party liability claims were concerned and thus charitable im-munity was overturned in a series of state-by-state judicial decisions” (2012, p. 158). “The [current] medical malpractice system has two primary goals: to compensate injured patients and to deter physi-cians from careless behavior” (Kachali, 2005, p. 417). However, many healthcare professionals question if the current medical malpractice system has or is achieving those goals. “Few of the people who deserve compensation actually get any” and those who are compensated usually endure years of pre-trial discovery, trial, appeals and challenges be-fore they receive a settlement. “At the same time, too many undeserving patients sue, imposing enormous expense and misery. The system…is fundamentally perverse” (Gawande, 2005, p. 105). The “perverse” system created a “deny and defend” approach by physicians and hospitals. The prevalence of the deny and defend approach is often considered an extension of natural human behavior – the fight or flight response. “Most hospitals fight everything –whether it deserves to be defended or not…then they declare themselves victims of a bro-ken system” (Robeznieks, 2013, p. 34). The deny and defend approach has been shown to stifle discussion of patient safety, limit communication between provider and patient, and trigger malpractice suits as a method for gathering infor-mation. In addition, “the fundamental assumptions supporting deny and defend create a self-perpetuating spiral that suppresses consideration of alternative approaches” (Boothman, Imhoff & Campbell Jr., 2012, p. 15). An additional complicating factor of the current medical malpractice system is the ability of trial attorneys to file suit against hospitals before they have complete information (often to preserve the statue of limitations). “Lawsuits are filed before either side knows if they have a true conflict…Hospital executives rarely stop to analyze whether litigating each case actually serves their organization’s interests…[resulting] in litigation of questionable necessity with significant costs to both sides.” Data supports the claim by many healthcare professionals that baseless suits are rampant in to-day’s system. A 2011 study indicated that plaintiffs drop 58.6 percent of all medical malpractice cases due to “information accumulated during investigation that shows the plaintiff has a weak or frivolous case” (Boothman et al., 2012, p. 15).


IN MEMORIAM

I met Ron Aho in the fall of 1968 at the USD Law School. It was a tumultuous year. In March, Martin Luther King was assassinated. In June, Bobby Kennedy was assassi-nated. The Viet Cong started the Tet Offensive which revealed that we weren’t win-ning the Vietnam War. Young men were being drafted out of every community across the country. There were race riots. A riot had broken out in August in Chicago at the Democratic National Convention. The country was deeply divided between Hawks and Doves on the war and there was a Presidential election looming in the fall. It was an era before debates about fantasy football picks, reality TV programs, and the newest and best tech toy. Ron Aho came to USD Law School as a Magna Cum Laude political science graduate from SDSU. He was a highly respected college debater. At law school he immediately enjoyed the rigorous give and take on issues of law and politics. As a skeptic with a knack for one liners, he entertained everyone with his wry observa-tions when there was a heated debate. He graduated from the Law School Magna Cum Laude. Ron returned to his hometown of Brookings where he practiced law from 1971 until his death this year on New Year’s Day. He had an enthusiasm for the practice of law. He was conscientious in the representation of all of his clients. While Ron had a general practice, he had a special place in his heart for the “little guy.” Over the years I would see him or visit with him several times each year. He always had to tell me about one of his “cause cases.” Inevitably he would say “maybe I’m spending too much time on this, but why did I go to law school anyway if I can’t try to help this guy?” Somewhere in each one of those conversations there was always the comment “they can’t do that to him” or “they can’t get away with that.” Over the years Ron came to almost every South Dakota Trial Lawyers seminar and annual meeting. He would be the guy taking copious notes during the seminar and talking your leg off about some case during the breaks. Ron was near legendary for his ability to talk. It was almost impossible for him to answer a ques-tion with either a “yes” or “no.” It was just part of his personality. His comments were often humorous and never mean spirited. Ron said he liked to come to the South Dakota Trial Lawyers seminars because he would always get a “nugget” that he could use in one of his cases. He would visit with other lawyers about legal issues or ap-proaches to consider in his representation. He loved to consider and strategize while catching up on what was going on in the courthouses around the state. Although his cancer was quite advanced this fall, he traveled to Deadwood for one last Trial Lawyer’s meet-ing. He knew in all probability that it was his last get together, but he wanted to be there to keep up on the law, see his friends, and find another nugget. I had an opportunity to visit with Ron on a cold, sunshiny Saturday afternoon this last December. Sitting in his sun room, we reminisced for quite a while. Toward the end of our visit he said that he could have chosen other paths for his life’s work, but that: “I think law was a good choice. People came to me with problems in their life and I think that most of the time I helped them some. It’s satisfying to run into someone you helped 25 years ago and have them say ‘thank you’ all over again. Maybe I did some good along the way. I hope so.” I hope that at our next Trial Lawyer’s gathering that we can hoist a glass to our departed colleague, Ron Aho, and in the toast remember his words “why did we go to law school anyway, if we don’t try to help this guy.”

- Greg Eiesland


Leave No Stone Unturned

Tips for Picking a Juror

Marya Tellinghuisen*

The phrase to “leave no stone unturned” refers to a hunt for evidence or a missing item. I often watch jury selection as a part of my duties as staff attorney in Pennington County. Frequently, you can tell the attorney isn’t comfortable “visiting” with the jury. In a recent trial, before the attorneys began picking the jury, the judge had explained to the jury that the words “voir dire” mean to “speak the truth.” It is very important that you as the attorney touch on subjects that are both important to your case and your client but also will get to the truth of each juror’s biases and prejudices. We all have them and they sometimes make us the less than perfect juror to hear a particular case. The attorney’s job must be to leave no stone unturned when selecting potential jury members to sit on a jury. It can, and most likely will, make a huge difference in your trial. Most of us are uncomfortable asking someone we don’t know well personal questions. In fact, many of us avoid asking personal questions of people we do know well. As a result, many attorneys do not see voir dire as a wonderful opportunity to pick the perfect jury. Instead, we stand up in front of a jury asking questions from a list of pre-selected questions barely listening to the answers. If nobody raises their hands and an-swers your questions, you aren’t asking the right questions. I remember my Trial Techniques instructor from law school, Bob Ulrich, telling us that jurors want to talk to us. Your typical jury panel has a variety of people…kind of like a high school classroom. There is the quiet, shy one who never responds to any questions unless you call on her individually. Then there are the opin-ionated ones who answer every question. Recently, my sister got called for jury duty and she really wanted to serve. I told her if you want to get picked, don’t say anything. Why? Because, one side or the other will most likely not pick you if you say too much. My advice must have worked as she did get picked. My advice to the attorney is don’t let a “sleeper” get through. Just because the potential juror hasn’t offered an opinion, doesn’t mean she doesn’t have one. Find out what it is. I once had a juror tell me during a break in the jury selection process, that he had a doctor’s appointment during the week the trial was scheduled. He had an appointment letter in his pocket. I told him he needed to let the attorney know he would be unable to serve as he really needed to go to this appointment. When the attorney did question him, he answered all of the questions regarding his thoughts on the American judicial system and many other topics and finally, when the attorney was about to move on, he brought up his ap-pointment and the judge dismissed him. The point of this story was that he wanted to talk to the attorney and share his thoughts even though he knew he would be dismissed. I compiled a list of things that I have observed watching jury selection. I am sure that many of you could of-fer more. Be yourself. Don’t try to be Gerry Spence, Johnny Cochran, Alan Dershowitz or Gloria Allred. You can

only be you. I saw a poster the other day that said “be yourself, everyone else is taken.”




Law School Times By Kelsea K. Sutton

[email protected] (605) 830-5039

SDTLA Law Student Liaison

The spring semester is an incredibly busy time at the law school. On top of their normal, rigorous class schedule, first-year students will undergo the application process for Board selection, Student Bar Association elections, and student organization leadership transitions. The students who are applying for the Law Review have already submitted their casenote “write-on” for review by the second-year staff writers. Every 1L will participate in the Sam Masten Moot Court Tournament in March, and after the conclusion of the Sam Masten Tournament, they will submit their resumes and en-dure interviews to vie for a spot on the Law Review, the Moot Court Team, or the Alternative Dispute Resolution Board. Exciting stuff! The South Dakota Law Review is hosting its annual Symposium, and this year the Board has selected “Rural Practice” as its topic. Scholars, practitioners, and leaders from both the South Dakota State Bar and the American Bar Association will come from all over the state and country to discuss the problem of access to justice in rural areas. The event will be held on Thursday and Friday, March 20th and 21st, and it’s shaping up to be an event you won’t want to miss! The Moot Court Team is sending five teams to compete this semester, and most of their topics deal with constitutional law. 3L’s Adam Shiffermiller and David Sahli, and 2L Rachel Preheim, will compete in the J. Braxton Craven, Jr. Memo-rial Competition at the University of North Carolina. 3L Ryan Kurtz and 2L Matt Templar will compete in the National First Amendment Moot Court Competition at Vanderbilt University. 3L Chris Dabney, and 2L’s Nick Moser and James Shanor, will compete in the William E. McGee National Civil Rights Moot Court Competition at the University of Minneso-ta. 2L’s Becky Fey, Sara Schroeder, and Matt Laidlaw will compete in the American Bar Association's National Appellate Advocacy Competition. Finally, 3L’s Christen Leedom, Kelsey Parker, and Morgan Peck will compete in the Duberstein Bankruptcy Moot Court Competition at St. John’s School of Law. This spring the ADR Board is excited to attend the National Baseball Arbitration Competition at Tulane University in New Orleans, the ABA Client Counseling Regional at Drake University, and the ABA Dispute Resolution Mediation Competi-tion in Chicago. The Board was very pleased to have such a wonderful turnout of both competitors and judges for the 1L intraschool negotiation competition this fall and they are looking forward to their spring 1L intraschool Client Counseling Competition on February 1st. Following a successful fall season, in which for the second straight year a USD School of Law Trial Team advanced to the octofinals of the highly competitive 40-team Buffalo-Niagara National Trial Competition (with victories over American, Berry, and Akron), USD’s Trial Teams are gearing up for a busy spring of competition. The USD Trial Team is proud to have been invited to compete in some of the most competitive and prestigious trial competitions in the United States. During the spring of 2014, 24 USD law students will compete on eight teams in seven national trial tournaments, including: the Costello National Criminal Trial Advocacy Competition (Washington, DC); the AAJ Trial Advocacy Compe-tition (Chicago); the ABA’s National Criminal Justice Trial Competition (Chicago); the Capitol City Challenge (Washington, DC); the National Ethics Competition (Sacramento, CA); TYLA (Minneapolis); and the GW/Estrella Trial Advocacy Competition (San Juan, PR). Does this sound slightly crazy? Yes, but it’s going to be a blast! USD’s Trial Teams will be coached by Professors Tom Horton and Michael McKey with the generous help of members of the SDTLA. As always, the Trial Team thanks you for your ongoing and steadfast support. Finally, the South Dakota Supreme Court will make its annual visit to the law school for oral arguments the week of March 24th. As always, Supreme Court week is an exciting time during which students get to witness the appellate pro-cess at its finest. This is an incredibly unique opportunity that the Supreme Court grants to USD law students, and it is always an absolutely excellent educational experience.


Agenda Thursday, May 8, 2014 12:30 p.m. Registration and coffee…. 1:00 p.m. SDTLA President’s Welcome – Stephanie Pochop, Gregory 1:05 p.m. Deposition Basics Gary Jensen, Rapid City 2:00 p.m. BREAK 2:15 p.m. Discovery with Electronic Technology

Colleen Zea and Dan Meinke, Computer Forensic Resources, Sioux Falls

3:15 p.m. BREAK 3:30 p.m. Hot Topics for Family Law…. the Emerging Issues

Civility and Professionalism Family Law and how it differs from other Civil and Criminal Law Cohabitation Agreements, Same Sex Marriage and more

Linda Lea Viken, Rapid City 4:30 p.m. Adjourn 5:15 p.m. Past President’s Networking Reception – (included in tuition)

Special Presentation to Judge Hinrichs 6:00 p.m. Banquet Dinner followed by SDTLA Roasting of Bob Morris Contact Sara if you want to be a roaster! Friday, May 9, 2014 9:00 a.m. A South Dakota Drug Court Panel of Circuit Court Judges & a Graduate 10:00 a.m. Break 10:30 a.m. The Eight Traits of Great Trial Lawyers Hon. Mark Bennett, US District Court Judge, Northern District of Iowa Noon Adjourn

ACCOMODATIONS: Rooms can be reserved by calling the Grand Falls Resort at 877-511-4386 and ask for reservations in the SD Trial Lawyer Association block. The SDTLA rate is $99.95/night plus tax. Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to:

SDTLA Office PO Box 1154

Pierre, SD 57501-1154 If you have questions, call (605) 224-9292.

Name___________________________________ Address__________________________ City_____________________State_______Zip_______ Telephone______________________________________ Email: __________________________________________

REGISTRATION FEES: (All registrations include the banquet dinner & roast) ____ $175.00 Sustaining members and members over 3 years in practice ____ $150.00 members less than 3 years in practice ____ $250.00 non-members less than 3 years in practice ____ $325.00 non-members over 3 years in practice ____ $50.00 Judges and Legal Support Staff ____ $100.00 Legal Support Staff non-member ____ Complimentary USD Law School Students* ____ $50.00 Spouses/Guest Dinner only* *must pre-register

SDTLA is CATCHING FIRE!! 2013 Spring Seminar

May 8-9, 2014 Grand Falls Resort, Larchwood, IA


SDTLA Legislative Update by Category as of January 22, 2014

CRIMINAL LAW________________________________________________________________ SB 21 The Committee on Judiciary at the request of the Office of the Attorney General revise certain provisions regarding the collection and setting of 24/7 sobriety program fees and regarding the monitoring of ignition interlock testing. SB 23 The Committee on Judiciary at the request of the Office of the Attorney General revise certain provisions relating to deceptive trade practices, including unordered property or services, lodg-ing reservation and cancellation, violation penalties, attorney's fees, entry rights for landlords and tenants, debit card theft, and organized retail crime. SB 25 The Committee on Judiciary at the request of the Office of the Attorney General establish the procedure to forfeit personal property in child pornography, human trafficking, child solicitation or exploitation cases, and to direct money from the forfeitures. SB 26 The Committee on Judiciary at the request of the Office of the Attorney General establish certain electronic crime victim notification procedures. FAMILY LAW ____________________________________________________________________ SB 2 Senators Soholt, Peters, and Tieszen and Representatives Stevens, Bolin, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee provide for the delayed arrest, under certain circumstances, in regard to certain outstanding warrants for vic-tims of domestic abuse with minor children. SB 3 Senators Soholt, Peters, and Tieszen and Representatives Stevens, Bolin, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee provide for continuity in the judicial review of certain lawsuits, complaints, and petitions between parties to a petition for certain protection orders. Bill Text Versions SB 4 Senators Soholt, Peters, and Tieszen and Representatives Stevens, Bolin, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee ensure, by service, notice to the respondent and opportunity for the respondent to be heard prior to enforce-ment of certain foreign domestic protection orders. SB 5 Senators Soholt, Peters, and Tieszen and Representatives Stevens, Bolin, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee permit the court reciprocal discretion to hear certain petitions for protection orders due to domestic abuse and for protection orders due to stalking or physical injury. SB 6 Senators Soholt, Peters, and Tieszen and Representatives Stevens, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee establish the crime of committing certain acts of domestic abuse in the presence of a minor child. SB 7 Senators Tieszen, Peters, and Soholt and Representatives Stevens, Bolin, Conzet, Gibson, Rozum, and Soli at the request of the Interim Domestic Abuse Study Committee modify the persons eligible for protection from domestic abuse and to revise certain terminology.



South Dakota Trial Lawyers Association

Notice of 2013—2014

MEMBERSHIP DUES

DUE July 1, 2013

CATEGORIES

Check one:

_______ Legal Support Staff …………………. $50.00/ year

________ Law Student…………...………………$10.00/ year

________ 0-2 years in Practice…………………$70.00/year

________ 3-5 years in Practice……..………..$100.00/year

_____ Public atty employed over 2 years*……$100.00/year

______ Over 5 years in Practice …………… $350.00/year

______ Sustaining membership ** …………$700.00/year

______ Subscribing membership *** ……..$125.00/year

Please print or type

Name _________________________________________________ Email Address_______________________

Mailing address______________________________________________________________________________

CITY _____________________________________ State__________________________ ZIP _______________

Telephone _________________________________ Cell number ____________________________________

County _____________________________________ Date Admitted to Bar __________________________

Return to with appropriate dues:

SDTLA

PO Box 1154

Pierre, SD 57501-1154

* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal government or legal aid association. ** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the Association for five years. Attendance at the Association’s annual fall seminar is free for sustaining members. *** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.


NEW LAWYER REFERRAL LIST The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested in handling due to his or her caseload, area of interest, or the client’s ability to pay. The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA office to join this list.

First Circuit Kraig L. Kronaizl Blackburn & Stevens 100 West 4th Street, Yankton, SD 57078 665-5550 Family Law, General Civil Litigation, Some Criminal Defense

Katie Johnson PO Box 136 Beresford, SD 57704-0136 763-8013 Family Law, Criminal Defense, Bankruptcy Second Circuit Melissa Fiksdal Jeff Larson Law 400 N Main Ave #207, Sioux Falls SD 57104 275-4529 Family Law, Criminal Defense Cesar Juarez Siegel, Barnett & Schutz PO Box 1286, Sioux Falls, SD 57101 335-6250 Family Law, Criminal Defense & General Civil Litigation

Meghann Joyce Boyce Greenfield etal PO Box 5015, Sioux Falls, SD 57117 336-2424 Family law, Civil Litigation and Insurance Litigation

James Nasser Nasser Law Office 204 S Main, Sioux Falls, SD 57104-6310 335-0001

General civil litigation Laura Brahms Kading Kunstle & Goodhope 7400 S Bitterroot Pl #100 Sioux Falls, SD 57108 336-1730 Family Law, Criminal Defense, Worker’s Comp, General Civil Liti-gation Katie Johnson PO Box 136 Beresford, SD 57704-0136 763-8013 Family Law, Criminal Defense, Bankruptcy Third Circuit Seamus W. Culhane Turbak Law Office 1301 4th St NE, Watertown, SD 57201 886-8361 Long Term Care, Homeowner’s, Worker’s Compensation and other Non-ERISA Insurance Denials Casey W. Fideler 1301 4th St NE, Watertown, SD 57201 886-8361 Personal Injury, Wrongful Death, & Tax Implications of Settlements & Judgments

HAVE YOU CHECKED OUT SDTLA’s SOCIAL MEDIA??

The South Dakota Trial Lawyers Association is pleased to announce that it has re-launched its official Facebook page in an effort to connect and unite more attorneys and legal support staff throughout South Dakota. Videos, pictures, and in-formation about upcoming SDTLA events will be posted regularly. Members are also invited to post questions, com-ments, articles, etc. on SDTLA’s Facebook wall. Not yet a SDTLA Facebook page member? Become one today by typing South Dakota Trial Lawyers Association – SDTLA into your Facebook search function and click JOIN!

ROASTERS OF BOB MORRIS NEEDED May 8, 2014

Contact Sara for details….



SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Conference Call Minutes

December 19, 2013

On the call: Stephanie Pochop, Verne Goodsell, Steve Beardsley, Steve Siegel, Dick Casey, Aaron Eiesland, TJ Von Wald, Margo Julius, Alecia Fuller, Ryan Kolbeck, Casey Fideler, Raleigh Hansman, Kasey Olivier and Sara Hartford. Law Student Liaison Kelsea Sutton, Lobbyist Tellinghuisen and Barrister Editor Tellinghuisen were also on the call. A quorum was present. President Pochop asked for approval of the November 14 minutes. Siegel made a motion to approve as presented, Kolbeck second-ed. Motion unanimously carried. Beardsley gave the treasurer’s report. Account balances are $8,798 in Operations, $64,248 in Savings and $5,106 in the Reserve Fund. Two CDs were purchased for $10,000 each, one a six month, one a 12 month. The PAC account has a balance of $29,968. There was discussion on the mid-year budget report and unpaid dues. Assignments were made to contact the unpaid members. Kolbeck made a motion to approve the Treasurer’s report, Siegel seconded. Motion unanimously carried. Under old business, Pochop asked for discussion regarding the Spring seminar and the location for 2014. After a lengthy and healthy discussion, Beardsley made a motion to have the 2014 spring seminar at the Grand Falls Resort and book into the new Hilton Garden Inn in downtown Sioux Falls for future years, Kolbeck seconded. Motion unanimously carried. The spring seminar is planned for May 8-9, 2014 at the Grand Falls Resort outside of Sioux Falls. The seminar will use the newer format of starting at 1pm on Thursday May 8 with several trial technique topics, a reception and dinner that evening and continuing on Friday morning May 9 with a panel of Cir-cuit Court Judges and concluding with the Hon. Mark Bennett, US District Court Judge, Northern Division of Iowa by noon. Beardsley asked Julius & Lobbyist Tellinghuisen for guidance on a workers compensation void he has discovered with a client. Julius will link him up with the Workers Compensation Advisory Group and start the process through there. . Next Board meeting is by conference call January 21, 2014 at 11am Central/10 am Mountain. Dialing instructions will be on the agenda. Meeting adjourned.

Conference Call Minutes January 21, 2014

On the call: Stephanie Pochop, Verne Goodsell, Steve Beardsley, Clint Sargent, Terry Quinn, Tim Rensch, TJ Von Wald, Margo Jul-ius, McLean Thompson Kerver, Robbie Rohl, Casey Fideler, Raleigh Hansman, Kasey Olivier and Sara Hartford. Law Student Liaison Kelsea Sutton and Lobbyist Tellinghuisen were also on the call. A quorum was present. President Pochop asked for approval of the December 19 minutes. Von Wald made a motion to approve as presented, Rensch se-conded. Motion unanimously carried. Beardsley gave the treasurer’s report. Account balances are $56,590 in Operations, $14,253 in Savings and $5,107 in the Reserve Fund. Two CDs for $10,000 each, one a six month, one a 12 month, are maturing. The PAC account has a balance of $31,395. Thompson Kerver made a motion to approve the Treasurer’s report, Julius seconded. Motion unanimously carried. There was discussion regarding Kolbeck’s request of SDTLA to write an amicus brief to the SD Supreme Court on the Lawrence County case of Missouri v. McNeely. McNeely was a very important decision in the DUI world as it determined that the natural dissipa-tion of alcohol in a person’s blood stream did not constitute an exigency in most ordinary DUIs to justify a blood test without a war-rant. The issue to be addressed by South Dakota’s Supreme Court is what extent the McNeely decision affects South Dakota’s re-quirement that any person who operates a vehicle is considered to have given consent to the withdrawal of blood and chemical analy-sis of the person’s blood or breath to determine the amount of alcohol in the person’s blood. Beardsley made a motion to add SDTLA’s name to a (joint) brief (with the SD Criminal Defense Association), Rensch seconded. Motion unanimously carried. Sargent & Hansman volunteered to draft the brief for the board’s approval in a timely manner consistent with the court’s deadlines. Sutton reported a date has not yet been established for a winter event at the law school in late February or March to continue our presence and encourage trial practice. . Von Wald announced the spring seminar is planned for May 8-9, 2014 at the Grand Falls Resort outside of Sioux Falls. The seminar will use the newer format of starting at 1pm on Thursday May 8 with several trial technique topics, a reception and dinner that evening and continuing on Friday morning May 9 with a panel of Circuit Court Judges and concluding with the Hon. Mark Bennett, US District Court Judge, Northern Division of Iowa by noon. Registrations are now being accepted. See the Barrister for registration details. Next Board meeting is TBD for legislative purposes. Meeting adjourned.

Analysis A multitude of strategies have been proposed to stem the malpractice crisis. Among the strategies, some are consid-ered traditional responses, while others are considered fairly radical. Traditional Responses Of the traditional responses to increasing medical malpractice claims, advocacy and lobbying are discussed most often in the news. “The AMA (American Medical Association), which was formed in the mid-1800s during one of the first medi-cal malpractice crises in the United States, has declared malpractice reform its top legislative priority” (Kachalia, Choudhry, & Studdert, 2005, p. 417). The most advocated tort reforms include statutory caps on damages, mandatory arbitration requirements, an increase in qualification requirements for experts, periodic payments for damages, attorney fee limitations, and collateral offset rules. Lobbying and advocacy by medical professionals has experienced limited success. According to the AMA website, Cali-fornia has a cap for non-economic (often called pain and suffering) damages of $250,000. Comparatively, South Dakota has a $500,000 cap on non-economic damages. However, some states, including Arizona, Kentucky, Pennsylvania and Wyoming, prohibit caps on damages altogether within their state constitutions (American Medical Association Advocacy Resource Center, 2011). Notwithstanding, none of the advocacy has discouraged the rapid rise in malpractice insurance premiums nor does it address the rather obvious ethical consideration in limiting the system’s ability to compensate pa-tients for legitimate medical malpractice. Perhaps the most popular [traditional] response to the malpractice crisis is physicians practicing defensive medicine. “To reduce liability risk, physicians may choose to alter their practice in directions that are clinically unnecessary or inappro-priate. This type of response…may involve assurance-type behaviors (i.e., providing additional tests or care to patients to assure them they have been properly evaluated or treated) or avoidance-type behaviors (i.e., avoiding treatment of patients that may be at a higher risk for adverse outcomes, and thus, at higher risk for filing lawsuits)” (Kachalia, et al., 2005, p. 418). Both assurance-type behaviors and avoidance-type behaviors pose significant problems for the medical community. Assurance behaviors generate large inefficiencies for hospitals, “entail small marginal benefits to the patients,” and result in costly over-ordering and over-treatment for patients and payors. Avoidance behaviors result in limited service offer-ings, physician relocation, and ultimately, limiting patients’ access to providers as mentioned above. Radical Responses Within the last ten years, as a response to the peak in the medical malpractice crisis, physicians have begun to respond aggressively and radically in order to prevent litigation. The aggressive and radical responses, include, but are not lim-ited to, practicing medicine without proper malpractice coverage (going “bare”), requiring patient waivers, and organizing work stoppages. The new practice of “going bare” refers to physicians who have chosen to practice without securing sufficient profession-al liability insurance coverage. “Ostensibly, this equates to choosing to self-insure instead of purchasing commercial insurance” (Kachalia, et al., 2005, p. 420). Generally, a physician who chooses to go bare has some assets to provide for defense coverage and satisfy [small] judgments; however, they do not have umbrella coverage available to satisfy large awards. Advocates of going bare assert that removing high insurance limits from the malpractice equation will force a reduction in awards. Patient advocates and plaintiff attorneys allege that practicing without adequate coverage violates the foundation of the malpractice system – ensuring ample funds are available to compensate victims of medical malpractice. A second radical response to increasing medical malpractice suits includes providers requiring patients to sign waivers prior to provision of medical care. Ideally, said waivers would prevent frivolous suits and require the patient to relinquish any right to recovery for negligent acts. Realistically, “because a potentially essential service is involved and unequal bargaining power can exist, complete waivers of the right to sue for negligent care have traditionally and consistently been struck down by the courts” rendering the entire premise of waivers worthless (Kachalia, et al., 2005, p. 423). A third radical response to increasing medical malpractice suits involves physician work stoppages. Physicians in New Jersey, Pennsylvania, Illinois, Nevada, and West Virginia have organized work stoppages or strikes to protest malprac-tice liability. Results of the work stoppages have been mixed. “Shortly after a protest in Nevada, lawmakers passed malpractice legislation creating damage caps;” however, other states found that “strikes …breach the ethical requirement that physicians put patients’ interests first” (Kachalia, et al., 2005, p. 423).


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Early Disclosure Response The newest, and perhaps the most effective, response to the malpractice crisis is prevention of lawsuits through early disclosure of medical injuries and timely mediation with patients. Hallmarks of early disclosure programs include, but are not limited to, full disclosure on medical injuries to patients and improving patient safety by learning how to prevent simi-lar injuries in the future. According to the University of Michigan Health System, “abandoning deny and defend can be a critical first step to recovery… we own patient injuries. News of a patient’s injury does not represent a threat to us but creates an obligation we must meet and address in a straightforward, principled way so it never happens again” (Boothman, et al., 2012, p. 18). UMHS (University of Michigan Health System) is not alone in its desire to in-crease patient safety and decrease patient lawsuits through programs of early disclosure. Minnesota’s Fairview North-land received a grant to “focus on steps to ward off lawsuits: reducing preventable instances of harm in hospitals; inform-ing patients promptly when they’ve been injured; providing prompt compensation; and engaging in court-directed dispute resolution to achieve rapid settlements in cases of injury” (Langel, 2010, p. 1566). Historically, the strongest argument against early disclosure and timely mediation with patients has been that it is statisti-cally ineffective at preventing medical malpractice litigation. A 2004 study by the American College of Physician’s Dr. Mazor indicated, “Our findings suggest that full disclosure after a medical error reduces the likelihood that patients will change physicians, improves patient satisfaction, increase trust in the physician, and results in a more positive emotional response.” However, “we found that full disclosure had a statistically significant effect on the likelihood of seeking legal advice in only 1 situation – missed allergy error [resulting in a] serious clinical outcome” (Mazor, et al., 2004, p. 416). Mazor further reported that “physicians should not assume that full disclosure guarantees a positive response; patients are also influenced by the clinical outcome and the specifics of the error situation” (Mazor, et al., 2004, p. 416). Dissimilarly, preliminary results of early disclosure programs at UMHS and the University of Illinois Chicago (UIC) have been positive. UMHS reported a reduction in its average monthly rate of new claims “from 7.03 to 4.52 claims per 100,000 patient encounters, decreased the average monthly rate of lawsuits from 2.13 to 0.75 per 100,000 patient en-counters, and reduced the time between claim reporting and resolution” (thus requiring less staff hours, outside counsel fees, etc.) (Boothman, et al., 2012, p. 23). UIC has experienced similar results. Dr. Timothy McDonald, Chief Safety and Risk Officer for Health Affairs at UIC (University of Illinois Chicago) says “malpractice claims typically take up to five years to resolve…The time-to-settle period has been reduced by about 80%... and pre-trial costs (typically between $300,000 - $350,000) have been reduced by a minimum of 70%” (Robeznieks, 2013, p. 33). Healthcare facilities are not the only beneficiaries of early disclosure programs. According to McDonald, UIC’s early dis-closure program waived all hospital and professional fees when “care was unreasonable,” resulting in more than $6 mil-lion in waived fees in the first two years of the program, providing “huge savings to payers” (Robeznieks, 2013, p. 33). Additionally, UIC’s medical center also experimented in making rapid settlement offers once errors were reported to pa-tients. UIC determined that “patients who weren’t notified immediately about errors tended to file suit and ultimately re-ceived only about 45 percent of damages (the rest went to cover court costs and attorneys’ fees). When faster commu-nication [of errors] took place, patients received up to 80 percent of proffered settlements” (Langel, 2010, p. 1567). Early disclosure programs, although not identical, identify seven steps to take in the prevention of malpractice lawsuits: reporting, investigation, communication, apology with resolution (compensation), process and performance improve-ment, data tracking, and education (Robeznieks, 2013, p. 33). Voluntary reporting, billing data, readmission rates, etc., are all possible sources for identifying patient injuries. Investigation, and the speed of the investigation, is also im-portant. “Collecting information as soon as the adverse event or close call occurs is critical because it promotes immedi-ate action to correct the root cause of an event and prevents errors from repeating” (Boothman, et al., 2012, p. 21). Dur-ing patient disclosures, sensitive listening, clear and compassionate responses, and open communication are essential to moving adverse events to constructive grounds. Disclosures of adverse events must include detailed explanations, a sincere apology, and “assurances that steps will be taken to prevent recurrences” (Mazor, Simon, Yood, & Martinson, 2004, p. 416). Ultimately, most patient errors will require some type of compensation that may include hospital write-offs, additional care and treatment at no cost, or actual settlements. “Apolog[ies] without compensation [are] like taking a shower in a raincoat. You’re doing the right thing, but you don’t get wet and you’re still dirty. Compensating patients for injuries caused by medical errors is a vital component” of the early disclosure model. The greatest value of an early disclosure program is proactivity. Proactivity in process and performance improvement (using information from past early disclo-sure cases) may ensure that future patients are not harmed in similar ways. Additionally, facilities should track the data produced by early disclosure programs in order to reevaluate programs in order to further “lower the number of claims filed, diminish costs, and reduce patient safety events.” Education of staff on past patient safety events will increase pa-tient safety and “knowledge of safety risk [should be] disseminated to those who can implement change and be account-able for taking steps to ameliorate the risk as quickly as possible” (Boothman, et al., 2012, p. 21-22).



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Conclusion While there will always be providers who doubt the benefit of early disclosure and timely mediation, early disclosure pro-grams are currently the best method to stem the malpractice crisis in the United States. Traditional and radical measures to change the malpractice system have had varied results at best. Worst of all, deny and defend policies pit patients against healthcare providers and promote adversarial climates surrounding adverse events. Rather than at-tempt to change the malpractice system or simply hide medical errors under a proverbial rock, healthcare facilities should embrace a new model of early disclosure that renders the malpractice system obsolete. While early disclosure and timely mediation may not be effective in all cases, the worst one can say about the practice is that a provider or healthcare system tried and failed to resolve the situation early, resulting in no harm, financially or emotionally, to either party. Early disclosure programs benefit medical providers, medical facilities, and patients, both current and future. McDonald of UIC said it best - “If you’re extremely honest with patients, you won’t see a financial Armageddon. It gives people courage” (Robeznieks, 2013, p. 35). Finally, early disclosure programs “put a price tag on the cost of failure to provide patients the quality of care they deserve. This engenders a sense of accountability and a greater sense that the health system can control its malpractice costs through improvements in patient safety” – thus indicating that early disclosure programs are truly win-win (Boothman, et al., 2012, p. 24).

References

American Medical Association Advocacy Resource Center. (2011). Caps on damages. Retrieved from http://www.ama-assn.org//resources/doc/arc/capsdamages.pdf Boothman, R. C., Imhoff, S. J., & Campbell, D. A. (2012). Nurturing a culture of patient safety and achieving lower malpractice. Fron-

tiers of Health Services Management, 28(3), 13-28. Gawande, A. (2007). Better. A surgeon’s notes on performance. New York, NY: Metropolitan Books. Kachalia, A., Choudhry, N. K., & Studdert, D. M. (2005). Physician responses to the malpractice crisis: From defense to offense. The

Journal of Law, Medicine & Ethics. 33(3), 416-428. Langel, S. (September 2010). Averting medical malpractice lawsuits: Effective medicine or inadequate cure? Health Affairs, 29(9),

1565-1568. Mazor, K. M., Simon, S. R., Yood, R. A. &Martinson, B. C. (March 16, 2004). Health plan members’ views about disclosure of medical

errors. Annals of Internal Medicine. 140(6), 409-418. Mello, M. M., Studdert, D. M., DesRoches, C. M., Peugh, J., Zapert, K., Brennan, T. A., et al. (2005). Effects of a malpractice crisis on

specialist supply and patient access to care. Ann Surg, 242(5), 621-628.

Robeznieks, A. (2013). Full disclosure first. Alternative med-mal approaches show promise. Modern Healthcare, 43(5), 32-37. Showalter, J. S. (2012). The law of healthcare administration. Chicago, IL: Health Administration Press

Catherine Olson has a Bachelor of Arts degree from Concordia College; a Paralegal Certificate from the Minnesota Par-alegal Institute; and a Master in Business Administration with an emphasis in Healthcare Management expected in May 2014. For the past five years, she has worked in both the for-profit and not-for profit legal field specializing in corporate law, real estate transactions, transactional law, and medical malpractice defense.



ROASTERS OF BOB MORRIS NEEDED May 8, 2014

Contact Sara for details….


INSURANCE_______________________________________________________________________ HB 1050 The Committee on Judiciary at the request of the Department of Labor and Regulation revise certain enforcement actions by the insurance director. HB 1052 The Committee on Judiciary at the request of the Department of Labor and Regulation authorize additional disclosure regarding certain insurance investigations and examinations. HB 1054 The Committee on Judiciary at the request of the Department of Labor and Regulation establish consumer protection standards regarding certain insurance claim practices and to provide for certain penalties. THE COURTS ____________________________________________________________________ HB 1063 Representatives Feinstein, Bartling, Gibson, Gosch, Hunhoff (Bernie), Johns, Lust, Parsley, and Stevens and Senators Vehle, Frerichs, Lederman, Maher, Rave, and Rhoden revise certain provisions relating to jury selection.



Don’t be afraid to ask the questions that need to be asked. In a civil case things like frivolous lawsuits, greedy law-yers, greedy plaintiffs, feelings about doctors, feelings about the justice system, obesity, mental illness and medical conditions are all relevant and should be mandatory for discussion. In a criminal case, topics that are uncomfortable might be poverty, race, unemployment, drug use or other feelings the general population might have about crime. “Is there anyone here who thinks there are parts of Rapid City that aren’t safe to walk in at night?”

Make a list of topics you want to cover but make sure you listen to the answers that jurors are giving you. Follow up. If someone says there isn’t much to tell you about himself, ask him where he works or what he does when not work-ing.

Ask open ended questions that require the majority of folks to respond. Once you get the jury talking about easy things (did you drive a car here today or how many of you have children), it will be much easier to get them to dis-cuss more difficult topics. If you still can’t get any answers, ask individuals for a response. “Ms. Smith, have you ever had a family member that had cancer? How do you feel about the medical care received?” “Mr. Jones, I have-n’t talked to you at all yet. Is there anything you would like to add about people suing each other?”

Thank jurors for being open with you. Explain to them that there is nothing wrong with their answers but perhaps they might not be the best person for the case. Get them to tell you that they aren’t the best person for the case. “Ms. Smith, thank you for telling me about your mother’s death and the treatment in the nursing home. This case involves a nursing home, do you think that maybe you might prefer to sit on a different case? Would you like me to ask the judge to excuse you?” If the judge ultimately decides not to excuse this juror, it falls on the judge, not you.

Remind jurors that they can ask to visit with the attorneys and judge outside of the courtroom.

Have a sense of humor. Don’t stand up in front of the juror and interrogate them. When you ask if anyone dislikes attorneys, then don’t be offended when someone says he does. We all know that the public doesn’t have the best impression of lawyers, lawsuits and the court system. Use this as an opportunity to change that perception.

As lawyers we are trained in the law. Some of us have had special training in advocacy. It takes years of practice and some common sense to become good at standing in front of jury panel and asking tough questions. However, it is im-perative that we “turn over every stone” and figure out the biases in our cases. Get your next jury panel to speak the truth to you. *Marya Tellinghuisen is the staff attorney at the Pennington County courthouse.


session. Contribute money to lawyers who are running for the legislature. Send an SDTLA law student member or a new admittee a note of encouragement. Attend the Bar Meeting and come to the SDTLA mixer. Sponsor an SDTLA social on a Friday afternoon in your circuit. Trust me: I am an expert at identifying low hanging fruit when it comes to goal setting and all of these suggestions make for win/win goals. If you do one, two or all of these things, you not only help the SDTLA meet its mission, you will automatically qualify as a better lawyer in 2014. The topic of how to be a better SDTLA member in 2014 is on my mind because we lost one of our best SDTLA members this month when our friend Ron Aho lost his battle with cancer. Ron practiced law with courage, conviction and creativi-ty in Brookings for some 40 years. I don’t think anyone would say that Ron was a flashy lawyer even though he enjoyed success in infinite variety as a trial lawyer and amassed a colorful collection of war stories that he loved to recount. Ron was a great talker and had an engaging ability to enjoy other trial lawyer’s successes as much as his own. Ron also actively enjoyed having women trial lawyers in the SDTLA and went out of his way to talk about the advantages of diver-sity in the SDTLA membership. As a result, Ron was a trial lawyer that any lawyer could call for fair feedback and sound advice. If you didn’t run into him a courtroom hallway, the most likely place to run into Ron was at an SDTLA function. The first time I met Ron at a Bar meeting, one of the first things he asked was whether I would come to the SDTLA mixer with him. Ron came to the Fall Seminar in Deadwood this past year and was enthusiastic about the CLE program on using medical illustrations at trial, all the while knowing that his doctors did not believe that he would have much time to use this new information. Through his dedication to our CLE programs, Ron took the time to do something critically im-portant for the SDTLA every year. We could all take a valuable lesson from Ron about what membership means. Thank you to all the SDTLA members who took the time to help this tremendous advocate as he closed his practice and said his goodbyes. Godspeed, Ron.


NOTE TO YOUR ACCOUNTANT:

The NON-Deductible percentage

Of your paid dues for the FY 12/13

39.64%

SDTLA is CATCHING FIRE!!

2013 Spring Seminar May 8-9, 2014

Grand Falls Resort, Larchwood, IA

Documents

Prevention of Medical Malpractice Claims see page 5 · JANUARY/FEBRUARY 2014 ISSUE NO. 272 Inside this issue…. Prevention of Medical Malpractice Claims — see page 5 IN MEMORIAM