954 N.W.2d 314
S.D.2021Background
- From 2008–2014 Frye-Byington had persistent cough/hoarseness and imaging that showed a mediastinal mass; she alleges she was not informed of the mass.
- The mass grew and was surgically removed at the Mayo Clinic in 2014; pathology showed benign thyroid tissue that regrew after prior thyroidectomies.
- In 2016 Frye-Byington sued Rapid City Medical Center (RCMC) and three RCMC physicians (EN T and two family docs) for malpractice based on failure to inform/diagnose.
- At trial Frye-Byington’s expert testified the standard of care required disclosure of the mass; defense raised foundation and qualification objections and disput ed use of records/draft radiology reports.
- After the defense rested Frye-Byington sought to call two radiologists as rebuttal to authenticate draft radiology reports; the court refused and also rejected her broader proposed agency (vicarious liability) jury instruction.
- The jury returned a defense verdict; Frye-Byington appealed the rebuttal-witness and agency-instruction rulings and the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of request to call two rebuttal witnesses | Denial was abuse of discretion; radiologists were needed to rebut defense testimony that they had not seen draft radiology reports | Trial court properly excluded because plaintiff failed to authenticate the draft reports in her case-in-chief; request was belated and witnesses were not present | Affirmed — no abuse. The testimony was not proper rebuttal but a belated attempt to authenticate records; no prejudice shown |
| Denial/limitation of proposed agency jury instruction | Omitted language (failure to inform; willful omission) produced an incomplete/incorrect statement of respondeat superior law, prejudicing her vicarious-liability claim against RCMC | Instruction restated plaintiff’s negligence theory; extra language was unnecessary and would have improperly restated facts/claims | Affirmed — court’s truncated instruction adequately stated law for claims tried; any error non-prejudicial given general verdict |
Key Cases Cited
- Johnson v. United Parcel Serv., Inc., 946 N.W.2d 1 (S.D. 2020) (standard of review for evidentiary rulings)
- Shrader v. Tjarks, 522 N.W.2d 205 (S.D. 1994) (rebuttal is limited to new matter the defense injects)
- Sorensen v. Harbor Bar, LLC, 871 N.W.2d 851 (S.D. 2015) (distinguishing permissible rebuttal from matters that augment plaintiff’s case)
- Mealy v. Prins, 934 N.W.2d 891 (S.D. 2019) (error in jury instructions reversible only if prejudicial)
- Vetter v. Cam Wal Elec. Coop., Inc., 711 N.W.2d 612 (S.D. 2006) (prejudice standard for instruction error)
- Tammen v. K & K Mgmt. Servs., Inc., 929 N.W.2d 96 (S.D. 2019) (construe jury instructions as a whole)
- Sedlacek v. Prussman Contracting, Inc., 941 N.W.2d 819 (S.D. 2020) (general verdict can preclude meaningful review of instructional error)
- State Farm Mut. Auto. Ins. Co. v. Miranda, 932 N.W.2d 570 (S.D. 2019) (presumption trial court acted correctly when a general verdict could rest on proper grounds)