May 5, 1983

Mr. Leo Bray 
Sheriff 
Fall River County Sheriff's Office 
Hot Springs, South Dakota 57747

Official Opinion No. 83-21

Payment of Hospital and Doctor Bills

Dear Sheriff Bray:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

On December 25, 1982, a Fall River County resident was involved in a vehicle injury accident within Fall River County.  The person was arrested for felony D.W.I., but because the injuries he received in the accident required immediate medical attention, he was taken directly to Southern Hills General Hospital in Hot Springs.  The arresting officer requested that the hospital notify local law enforcement officials when the person was ready for release from the hospital.  After being notified on January 7, 1983, that the person was ready for release, a Fall River County Deputy Sheriff transported the person from the hospital to the county jail for processing.  At the jail, the person was fingerprinted, photographed and given a personal recognizance bond.  The person was subsequently convicted of the criminal charge and is presently serving a sentence in the State Penitentiary.

Based upon the foregoing facts, you have asked the following question:

QUESTION: 

When a person is arrested after being involved in a vehicle injury accident, is the sheriff responsible for payment of hospital and doctor bills which are incurred due to injuries sustained during the vehicle accident?

SDCL 24-11-21 deals with the sheriff's duty to furnish all necessaries for the comfort and welfare of the prisoners.  SDCL 24-11-21 states: 

It shall be the duty of the officer in charge of any jail to secure bed-clothing, laundry, board, nursing when required, and all necessaries for the comfort and welfare of the prisoners, for which he shall be allowed the actual cost; and such other shall receive such compensation as may be fixed by the board of county commissioners or the governing body of the municipal corporation.

Two decisions by the South Dakota Supreme Court reviewed the requirements of this section as it applies to medical treatment or prisoners.  In Bartron Cinic v. Kallemeyen, 248 N.W. 393 (S.D. 1932), the Court reviewed a factual situation that is remarkably similar to the one you outlined in this request. The Court, in finding that the Hamlin County Sheriff was liable for prisoners' hospital charges, stated: 

Regardless of how [the prisoners] came to the hospital, from the time that they were apprehended and came into the custody of respondent sheriff their continuance in the hospital was the act of the sheriff and no one else.  He was thenceforth the person, and the only person, who could say whether these men, his prisoners, should remain in appellant's hospital or be removed to the jail of Hamlin county.  He could not lawfully leave them in appellant's hospital excepting only upon one theory, namely, that they were his  prisoners; that it was his duty as sheriff to provide reasonably for their welfare; and that their condition demanded and it was his duty under the particular circumstances to furnish care and attention of a type and kind that could not be provided in the county jail or elsewhere than in a hospital.  It is quite clear upon the facts in this case that these men required hospitalization.  When the sheriff came there and observed their condition, placed guards over them, and left them in the hospital, he was performing his official duty in the way that any humane man would have performed it.  Since the sheriff could only be justified in leaving these prisoners in the hospital upon the theory that hospitalization was reasonably necessary for their welfare, we think the situation is no different from what it would have been had the prisoners been taken to the county jail of Hamlin county and thence immediately removed by the sheriff to appellant's hospital.  When the sheriff permitted these men, his prisoners, to remain in appellant's hospital, he was announcing by his conduct that he was taking that method whereby to furnish them nursing and care which it was his statutory duty to provide. 

Bartron Clinic, supra at 396. 

In Saxton v. Sanborn County, 74 N.W.2d 843 (S.D. 1956), the Court also reviewed the sheriff's duty to provide medical care for prisoners in his custody.  As with this situation, the threshold question in Saxton was  whether the person receiving medical attention was 'in the custody of the sheriff' at the time the medical care was furnished.  Saxton, supra at 844. Although finding that the person was not 'in custody,' the Court enunciated and reaffirmed the legal holdings from its earlier decisions in Bartron Clinic.

It is my opinion, from a review of the decisions interpreting SDCL 24-11-21 and other similar statutes, and the facts presented in this request, that the person receiving medical care in your factual setting was 'in the custody' of the Fall River County law enforcement officials at the time of receiving that care.  See, Dade County v. Hospital Affiliates International, Inc., 378 So.2d 43 (Fla. 1979).  Therefore, the Fall River County Sheriff would be liable for the costs of that care, subject to the reimbursement provisions set out in SDCL 24-11-21.  The liability of the Sheriff's Office for these medical costs, however, may also be offset by the taxing of costs, by the trial court, as a part of the judgment of conviction.  See, SDCL 23A-27-27.

Respectfully submitted,

Mark V. Meierhenry
Attorney General