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Irwin Law
Irwin Law, Attorney
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I have spent most of my time in Custer, SD for the last year

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I have spent most of my time in Custer, SD for the last year and a half helping my mother, and especially my Dad, during some increasingly rough times. My mother and I are co-guardians of my Dad, who has stroke related dementia and has been cared for full-time by my 86 year old mother (who has been diagnosed with Parkinsons’ and not in good shape herself).

In early March, my Dad fainted and we rushed him to the local hospital here in Custer (part of the Rapid City Regional system) and he nearly died. His heartbeat was 30 bpm, and we were told that he would likely die within a day, or certainly no longer than a couple weeks, of heart failure and his primary care manager said there was no treatment, so sent him home to die (Dr. Jolene Falkenburg). We had been told repeatedly that his heart was healthy; in fact, dad wasn't even examined during my folks' last annual physical...the doc just waved her hand at him and said, "Oh him....he'll last forever. It's you I'm worried about, Phyllis." In the ER, Dr. Falkenburg told my mom, "Phyllis, I'm so sorry....I don't know how his heart condition slipped past me." My mom vowed never to send him to a nursing home, and we discovered we could hire near full time help at home for less than half the nursing home cost, so we brought him home.

After work that night, my husband and our son took off work and drove all night from Las Vegas, Nevada to get to Custer in hopes of seeing dad one more time before he died.

After being here for nearly a week, David recommended that we call a good friend of his, who is an ER doctor in the greater Atlanta area to see what he thought of this. My husband’s doctor friend asked, "Has anybody in South Dakota ever heard of a pacemaker?" After fighting the PCM for over a week for a referral, and with this Atlanta doctor’s help, dad had the pacemaker placed and he is doing wonderfully. His dementia has not improved significantly, but he's no worse and he is getting stronger physically by the day and seems well.

Dr. Falkenburg had a habit of countering any questions about dad's physical condition with "Oh, that's the Alzheimer's progression." Since my dad has a history of strokes and heart disease, and no family history of Alzheimer's, I've always disagreed with her about the "hopelessness" of his case. And upon reviewing the written clinic records, I've discovered that the doctor has just flat out lied about his treatment on the day of his total heart block in the ER. (One note that Dr. Falkenburg put on Dad’s ER record was that she was “…awaiting the family’s decision as to a pacemaker.” This was a lie, as she never led us to believe that a pacemaker was an option at all...we put that forth after consulting with our doctor friend. In addition, her timeline disagrees with ours considerably. She also lobbied heavily behind the scenes against the pacemaker with the cardiologist we sought to consult with.)

I met a few weeks later with one of the people in charge at Rapid City Regional and they are not pleased with the interaction between us and Dr. Falkenburg, and asked that I write out my own timeline, and put forth my version of events. She said she found the entire episode "disturbing," and worthy of possible disciplinary action against the physician.

We have transferred dad's care to another doctor in Rapid City (45 miles east) who notes multiple conditions that are long overdue for treatment or routine testing (such as a serious inguinal hernia, no serial flex sigs considering dad's history of pre-cancerous colon polyps, discontinuation of cholesterol drugs or diet with a history of heart disease, etc.) I could write much more about this, but simply wanted to give you some background.

Questions reference background above: Would it be prudent for a lawyer to review the letter and timeline regarding Dr. Falkenburg before I submit it to Regional? I don't want to make a bad situation worse. Our doctor friend is appalled by the care, or lack of it, my dad has experienced, and is also shocked that dad's doc would be constantly trying to push her views on the family, i.e., her belief that anybody with dementia issues is past having a life worth living, and should be put away or let go so they won't "be a burden to their families." Additionally, if you have a legal opinion about the doctor’s liability, and how successful we might be in suing in this matter, we would be all ears.

I have to go to work right now and won't be able to check this until this afternoon, likely. Thank you.

Hello, and thanks for submitting this question. Most attorneys who handle medical malpractice cases will tell you that they are 1) very difficult to win; 2) extremely expensive to take to court; 3) because of 1 & 2, the provable damages must be significant. The missed diagnosis of your father's heart condition while inexcusable, was for the most part remedied. The other failures by the doctor have not resulted in significant damage to him. He is alive and doing well physically at a very advanced age. The emotional stress issues are very difficult to prove and would be limited only to your father. For these reasons, I believe that you would have difficulty getting a malpractice attorney to take the case. There is a lot of information about med mal on line. The law is state specific and you'll find many web sites for S. Dakota attorneys and general information about the law there. One thing to keep in mind is South Dakota's two year statute of limitations on filing such suits.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

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Customer: replied 4 years ago.

Thank you very much for this. You did not mention the letter, which I was asked to submit to the Rapid City Regional System (higher up management types, who were also appauled about my father's treatment). I am almost ready to submit this, having put a timeline together, as well as describing this doctor's "mis" treatment of my father.


I guess my question about this is if there is any reason why I should take the time and further expense for an attorney to look at this letter before I submit it? If I do submit it, as long as I don't sign any "hold harmless" paperwork, does this keep us from filing suit in the future, should we choose to do so?


Again, thank you VERY much for your help in this matter. It really does ease my mind, and will likely ease my mother's mind as well. Thanks a lot!!

Thanks for the nice Reply. The letter to the Regional System (if that is who employs the doctor) would not prevent a malpractice case later, but the information that it contains might be used as an "admission" of the facts. That said, any malpractice case would belong to your father and must be filed by him while he is alive. Whatever you say doesn't bind him in any way. Again, thanks for contacting JA and I hope this information is helpful and that you will enter a
positive rating. I thank you for submitting your question to Pearl-Just Answer.
We appreciate your business.

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