Kostel v. Schwartz

According- Stipulation. of the exclusion ly, conclude that the court abused we by excluding Stipulation.

its discretion the terms and conditions therein Because vital matters in the case—the level went to knowledge possessed by and skill credibility and the of his testimo- in all ny Stipulation —exclusion probability affected the outcome of the jury’s thereby prej- verdict and constitutes Carpenter City udicial error. See v. ¶ Fourche, 23,

Belle 2000 SD 751, 761; Kjerstad, 427. Reverse and remand for further

[¶ 42.] proceedings foregoing consistent with the

opinion. MEIERHENRY, ZINTER and

[¶ 43.] Justices, HOFFMAN, WILBUR Judges,

Circuit concur. WILBUR, Judge, sitting Circuit SABERS, Justice, disqualified. HOFFMAN, Judge, Circuit KONENKAMP, Justice, sitting for disqualified.

2008 SD 85 KOSTEL, Patricia Plaintiff Appellee, SCHWARTZ, M.D., Steven B. individual ly, M.D., Schwartz, P.C., B. Steven Neurosurgery West River &

d/b/a Spine, professional corporation, De Appellants. fendants Nos. 24254. Supreme Court South Dakota.

Argued on March Aug. Decided Dakota, Attorneys

South for defendants appellants.

GILBERTSON, Chief Justice. (Kostel) Patricia Kostel filed suit Schwartz,

against Dr. Steven B. M.D. and Schwartz, M.D., P.C., Steven B. West d/b/a River Neurosurgery Spine & (collectively Schwartz) alleging medical malprac- tice. The case was May tried to 8, 2006, through June the South Dakota Seventh Judicial Circuit. The en- tered a verdict for Kostel and on June 2006, the trial court a judgment entered the verdict. We affirm.

FACTS AND PROCEDURE [¶ 2.] March Kostel consulted Schwartz, Rapid City, with Dr. a South Dakota, neurosurgeon, in regard to a back Goodsell, Quinn, R. G. Verne Terence problem. Following an examination of Gunderson, Palmer, Matthew E. Naasz of records, Kostel and review of her medical Nelson, Rapid City, Goodsell & LLP South Dr. Schwartz recommended that un- she Dakota, Attorneys plaintiff appel- and dergo a spinal one-level fusion at the L4- lee. L51 segment. procedure vertebral The Braun, Thomas, Timothy R. laminectomy2 Lonnie L. was to involve an L4 Gregory Nooney discectomy3 J. Bernard of Thomas L4-L5 using posterior lumbar Bernard, Solay City, Braun LLP Rapid interbody pedicle & fusion4 with screws.5 groups parts spine adjacent 1. There are three main of vertebrae— of the to the affected column, atop spinal During procedure, spinous pro- the cervical vertebrae area. seven; (the bony projection posterior which there are the thoracic verte- cess on the side brae, vertebrae, vertebra) situated below the cervical of the and the lamina on each side twelve; area, thereby which are there lumbar verte- are removed from the affected vertebrae, pressure. alleviating http://www. brae situated below the thoracic "C,” "T,” eorthopod.com/public/patient_education/ which there are five. The letters (last respectively designate 6571Zlumbar_laminectomy.html and “L” are used visited cervical, 8, 2008). August thoracic and lumbar vertebrae. The spinal sacrum is located at the base of the column, it, "Discectomy surgical 3. coccyx removal of her- below or "tail- presses niated on a nerve coccygeal bone.” The five and four disc material sacral together spinal http://www.webmd. root cord.” vertebrae are fused and or are consid- bone, com/back-pain/discectomy-or-microdiscecto http://apparelyzed.com/spine. ered one (last (last 8, 2008). my-for-a-herniated-disc August August visited html visited 2008). Laminectomy procedure 2. is a used to treat spinal pain interbody surgery condition that lumbar fusion stenosis—a causes "Posterior compression adding graft in the due area extremities of the involves bone to an canal, spinal spinal arising spine up biological response nerves inside the to set a tear, degeneration, grow or wear and in the the bone to between ... verte- causes consequently breached the standard of operated Dr. on Kostel on March Schwartz anticipated In addition to the care to which she was entitled. Dr. segment, the L4-L5 fusion Dr. testified that Schwartz [¶ 5.] fusions at the L3-L4 performed Schwartz X-rays preoperative examination did segments as well. and L5-S16 problems not reveal in the L3-L4 and L5- Following surgery, her Kostel re- only that it was segments. S1 He stated letter, anonymous ostensibly ceived an operation after the had commenced that operating surgical written nurse segments ap- were problems these technician, alleged room or scrub accordingly, and that he fused parent, during had occurred problems that serious pre- as well. Dr. those areas Schwartz suggested The letter surgery.7 who testified that expert sented witnesses legal against recourse Kostel seek procedure beyond scope conducted and included referrals and Yel- consent, repair spinal problems unde- Page low advertisements local attor- examination, through preoperative tectable mal- neys practicing the field medical requisite with the standard consistent ultimately practice. Kostel filed suit of care. against alleging negligence Dr. Schwartz performance surgery, in the of her found for Kostel and surgery scope that the exceeded the $551,962.96. damages awarded Kostel given L4-L5 fusion to which she had con- additur, alternative, moved for or in the sent. damages. new Schwartz re- sponded and moved for new trial. The jury During parties trial the

[¶ 4.] trial post-trial court denied the motions disputed why surgery beyond went its judgment preoperative scope. alleged Kostel and entered on the verdict on in spine” Dr. Schwartz became “lost her June 2006. mistakenly fu- performed unnecessary parties allege Both error re- [¶ 7.] consented-to, sions addition to the L4- gard evidentiary to decisions and in- testimony L5 fusion. Kostel elicited from by structions the trial court. Dr. Schwartz Dr. that in the fourteen Schwartz months appeal: raises six issues on X-

prior surgery, to her he had misread 1. Whether the court abused its rays surgery and had conducted at uncon- precluded Dr. discretion when against sented-to levels. Her suit Dr. Schwartz, testifying Schwartz from to his by testimony, supported expert training, experience knowledge claim that was founded on the such was procedure opening the case with her and that he without the door to the dis- [,] thereby stop[ping] ment/spinal-fusion/pedicle-screwsspine-fusion bral elements motion at segment." http://www.spine-health.com/ (last 8, 2008). August visited treatment/back-surgery/surgery-overview/ himbarsurgery/posterior-lumbar-interbody- designation segment 6. This refers to the (last fusion-plif-surgery.html August visited the last includes lumbar vertebra and first 2008). vertebra, http://images.main.uab.edu/ sacral (last spinalcord/graphicimages/bspine.gif vis- screw[s, 5."[P]edicle are] sometimes 8, 2008). August ited adjunct spinal surgery, used as an fusion gripping seg- provide! spinal means of ]a by anonymous 7. letter had been written ment. The screws themselves do fixate Teuber, M.D., Larry competing Rapid City segment, spinal but act as firm anchor neurosurgeon. points that can then be connected with a http://www. spine-hea rod.” lth.com/treat- testifying ed allegations of mal- Dr. Schwartz from of other to his closure disciplinary training, experience knowledge practice associated proceedings. opening without the door to the dis- allegations closure of other of mal- trial court abused its 2. Whether practice disciplinary and associated when it allowed Kostel to discretion proceedings. Dr. Schwartz elicit from “other acts” pertaining alleged Within the period fourteen-month jury an gave the court and when prior surgery performed on Kos- limiting applicability instruction tel, operated Dr. patients, Schwartz on two obtained of the testimonial evidence mistakenly on both of which Dr. Schwartz during questioning. this line of performed procedures wrong loca- court abused its 3. the trial Whether patients’ spines. tions on the The first of discretion when it refused to admit surgeries these place July took Kostel, anonymous letter sent to seven months after Dr. complet- Schwartz competi- which was a the author of residency ed practice. started his and non-testi- tor of Dr. Schwartz’s consequence, litigation arising As a fying expert for Kostel. these two incidents pending at the the trial court abused its 4. Whether the instant time case was at trial. by the inclusion of discretion objected instructions Dr. 17, 2003, On December and the denial of others Schwartz signed a stipulation Schwartz with the requested. that he South Dakota State Board of Medical and (the “Board”) Osteopathic the trial court abused its Whether Examiners preclu- sponte discretion the sua agreed wherein he to have his license sion of evidence related probationary Among status. placed history psychiatric disorders. probation, conditions agreed complete year one of advanced when the trial court erred Whether training neurosurgery clinical and three portions it excluded evidence that training in months of advanced neurora- Kostel’s medical bills were “written govern- that he would pursuant diology. agreed off’ to federal laws He also ing billing of Medicare beneficia- limit his of medicine to the extent practice ries. required training obligations. to fulfill the that for a agreed Dr. Schwartz further one issue raised Kostel on address We years following comple- period of five notice of review:8 training, he would refrain from tion of abused its the trial court Whether during on his own and that practicing by denying Kostel’s re- discretion only engage practice in the time he would for a determination of her quest practice. neurosurgery through group damages. for punitive claim that various na- stipulation provided AND ANALYSIS DECISION data bases and the Federation tional be notified of Medical Boards would State 1. Whether court [¶ 8.] preclud- and that the “Basis for Ac- probation abused its discretion when through 1 issues. 8. Due to our affirmance on Issues 6, remaining we need not address Kostel’s

370 proceedings tice suites or Board would notification would be tion” such given 608(b)). (Rule violate SDCL 19-14-10 “Malpractice.” 608(b) provides: Rule moved in limine to Dr. Schwartz of a Specific instances of the conduct testimony concerning exclude evidence or witness, purpose attacking or for the malpractice suits and pending the other supporting credibility, his other than hearing May At a proceedings. Board provided conviction of crime as 5, 2006, granted court his motion. the trial 19-14-16, inclusive, may §§ 19-14-12 to however, conditioned, The exclusion was proved by not be extrinsic evidence. refraining offering on Dr. Schwartz however, They may, in the discretion of training expe- his any about court, probative if of truthfulness or rience, applicable as to the opinions or untruthfulness, inquired be into on Still, care. Dr. Schwartz was standard of cross-examination of the witness: testify surgical pro- about the permitted performed he on Kostel and the cedure (1) Concerning his character for truth- alleged intra-operative pathology untruthfulness; fulness or or expanding preopera- basis for was the (2) Concerning character for truth- scope surgery exposing tive without or of another fulness untruthfulness pending of other himself to examination witness as to which character proceedings involv- malpractice claims being cross-examined witness has ing type allegations. Never- the same testified. theless, ruling Dr. Schwartz contends the support argument, of this Dr. Schwartz and that he have prejudicial should cites Persichini v. William Beaumont expert opinion as to been able to offer Hosp., Mich.App. 100 standard of care and to es- applicable (1999); Lombardi, Heshelman v. 183 Mich. opin- the basis for his tablish for (1990); App. 454 N.W.2d 603 Nowatske by testifying training qualifi- ion to his Osterloh, 201 Wis.2d being subject inquiry cations without Doe, (Ct.App.1996); and Roe v. pending malpractice into the other suits or (N.Y.Sup. Misc.2d 612 N.Y.S.2d 558 proceedings. the Board Ct.1994). “The trial courts eviden- are 14.] These cases consistent tiary rulings presumed are correct and will precept inquiry with the into an ex absent a clear abuse of be overturned pert’s alleged mistakes or connection to discretion. ‘An of discretion refers abuse on impact unrelated adverse claims do not to a discretion exercised to an end or credibility truthful or character purpose justified by, clearly not and However, ness. these cases also hold that against reason and evidence.’” Kaiser v. contrary to representation ¶ Clinic, 95, 29, Physicians Univ. 2006 SD expertise in the the witness’s field for (internal 724 N.W.2d citations and opinion which he offers his at bar is rele omitted). quotations competency impact vant to his and does therefore, argues credibility, appropriate that and Persichini, at inquiry pending malprac- inquiry.9 an into the other See 607 N.W.2d Hathcock, Wood, 608(b). a medical cites Hathcock v. late Rule In Dr. Schwartz also case, (Ala.2001) Supreme support malpractice the Alabama 815 So.2d 502 in of his position inquiry malprac- to the trial court’s conclusion that into the other Court deferred plaintiff's expert proceedings that cross-examination of tice suits and Board would vio- following surgery. on cross-exami ened Id. at 763. (holding inquiry that he had been at expert expert length as to whether Plaintiffs testified to his nation of malpractice cases explained in other that per- a defendant credentials any misdiagno addressing alleged ten PLIF surgeries without formed six to eases, in was not relevant to spinal surgeries.” sis said “hundreds of other Id. knowledge); Hesh expert’s competency or expert colloquy Plaintiffs offered a on var- elman, (holding that 454 N.W.2d at 609 spinal surgery procedures ious and how unproven malprac accusations of they performed, culminating should be “[m]ere complaint in a cannot be used tice stated with his conclusion that the per- defendant attacking physician’s a wrong procedure as basis plain- formed Nowatske, credibility”); tiff, further, knowledge that he performed had (holding at 259 that cross- procedure incorrectly. expert Id. The expert about the mere exis- pronounced “plaintiffs examination of then that the symp- against actions him malpractice tence of toms not ‘should have occurred unless credibility and did impact did not on his negligence there was some at the time of ” go to his character for truthfulness procedure.’ Id. Roe, untruthfulness); 612 N.Y.S.2d at 560 cross-examination, On [¶ 16.] Schanz’s of defendant ex- (holding disclosure inquired plaintiffs into ex- defense counsel criminal offense was pert’s conviction of a in PLIF pert’s success the six to ten sur- witness, credibility relevant to his but geries performed he had that were similar inquiry disciplinary proceed- into the to the one at issue in that case. Plaintiffs ings suspension that resulted in the of his expert acknowledged that none of these publicized criminal license due to well procedures had been successful. He was in not aid the fact finder conviction did surgeries also asked about four non-PLIF credibility competency assessing his failed, plaintiffs expert had de- regard malpractice to the unrelated suit remembering. expert nied Plaintiffs then bar). testified he had never been a defendant Schanz, Wischmeyer In malpractice a medical suit. Id. at 763. (1995), Mich. 536 N.W.2d 760 appeal, is- that court considered Michigan Supreme analyzed Court On in a closely parallel facts that defense counsel’s cross-examination sue a case with question whether plaintiff two-part analysis those of the instant case. —the subject of a Wischmeyer injured plaintiffs expert his back and thereaf- been inquiry plain- physician malpractice suit and the into ter consulted with the defendant proce- discectomy expert’s an “L4-L5 with tiffs failed non-YLW performed who regard malpractice inqui- interbody lumbar fusion dures.10 posterior (PLIF).” that “the mere fact that plaintiff ry, filed a the court held Id. at 762. The named in an expert may have been when his condition wors- malpractice suit Dakota’s, precisely the kind of testi- for this is events that led to his medical license about party may elicit on evidence that a being probationary by monial placed on status pursuant ex- to the rule’s cross-examination licensing authority prejudicial local was more language. However, press probative. Id. affirm- than at 507. court, ing opined the trial the Alabama court bearing veracity inquiry plaintiff's that "evidence on a witness's 10. Defense counsel's into 608(b).” surgeries expert’s is forbidden under Rule Id. at 508. PLIF was not unsuccessful Wischmeyer, persuaded by interpre- during appeal. We are not that court's at issue rule, N.W.2d at 764. tation of this which is identical to South unrelated, malpractice unduly prejudicial, medical action is not and not it would be 608(b) probative of his truthfulness under [Rule unwise to apply [Rule so that ] 608(b) competency or relevant to his or ] deprived of information that added); knowledge.” (emphasis Id. at 767 would it in assist its task. We believe Persichini, see also 607 N.W.2d at 105 proper that this cross-examination was (taking guidance Wischmeyer). In during because direct examination analysis, the other the court held that Rule [plaintiffs expert] that he had testified 608(b) properly was considered the trial performed surgeries, hundreds back of inquiry court11 and the into the unsuccess- PLIFs, including in order to establish surgeries ful non-PLIF was relevant competency. his plaintiffs expert’s competency,12 Wis- juxtaposition [plaintiffs expert’s] The of chmeyer, justifying 536 N.W.2d at 765. In testimony on direct examination and his result, opined: this the court plaintiffs conclusion that condition could case, [plaintiffs expert] testified only negligence result from some during that defendant should have undertaken surgery [plaintiffs rendered expert’s] a more conservative course of treat- ability perform surgeries such rele- ment, implying that a more conserva- “Gaps vant. or weaknesses in the wit- tive treatment prevented would have expertise subject ness’ are a cross- fit injuries. plaintiffs Through this testi- examination, and go weight his mony, placed competency testimony, not admissibility.” its Be- question. condemn defendant expert testimony cause is admitted to [plaintiffs expert] cross-examination of fact, assist the trier imperative was results, regarding prior poor surgical opposing counsel be afforded therefore, did not raise extrinsic evi- opportunity [plaintiffs to cross-examine 608(b) prohibited by dence [Rule ]. expert] expose the weaknesses in his Because the competency [plaintiffs skill, knowledge, experience, training, or court, expert] properly before education. pertaining credibility evidence to his added) (internal (emphasis Id. 765-66 was relevant. omitted). citations It is intended that the Rules of Evidence

promote ascertainment In support position, of his truth.13 Where information is relevant Engel- also cites Martinmaas v. 11. The court also found that the Rule 403 was the trial court stated that defense counsel correctly Michigan’s considered. Id. [plaintiff's at 766. expert's] "would be 'stuck with an- ” version of Rule 403 is identical to South Da- swer.’ Id. kota's, which is codified at SDCL 19-12-3 provides as follows: Michigan's 13.The court cited Rule relevant, Although may effectively be exclud- which is identical to South Dako- probative 19-9-2, substantially ed if its value is out- ta's Rule 102 codified under SDCL weighed by danger prejudice, of unfair provides: issues, misleading confusion of the or 19-18, inclusive, Chapters 19-9 to shall be jury, delay, considerations of undue construed to secure fairness in administra- time, presentation waste of or needless tion, unjustifiable expense elimination cumulative evidence. delay, promotion growth recognized development The court also that the trial of the law of evidence to the 608(b) appropriately applied court had may Rule end that the truth be ascertained and by disallowing impeachment plaintiff’s proceedings justly ex- determined. added). pert noting (Emphasis with extrinsic evidence and

373 85, allegations In of misconduct” would be more mann, 612 N.W.2d 600. 2000 SD ¶ Martinmaas, tes- physician prejudicial probative. defendant than Id. at 51. of care applicable Compare standard v. Fuqua tified to the with Adams Indus- (8th Cir.1987) tries, Inc., decision affirmed the trial court’s and we 820 F.2d at 276 allowing counsel to establish plaintiffs’ (holding expert that where testified license, had a but longer no the defendant it defendant was liable because failed to any inquiry further defense counsel denied incorporate a “state of the art” device in licensing au- proceedings into the mower, by its lawn the trial court erred any concerning evidence thority or other allowing impeach expert defendant to physician the defendant no the reason on cross-examination about his use of the ¶¶ 54-58, 612 licensed. Id. longer was place same kind of lawn mower at his However, this case at 612-13. business). N.W.2d Schwartz, Dr. support does not lend have recognized We also holding in Martinmaas was since our where a witness makes an issue of his on the trial court’s consideration premised testimony, credibility by favorable direct had surren- fact that the defendant “ opens impeachment ‘he the door’ to evi contemporaneous with an dered his license dence on cross-examination.” v. Lit State charge adjudicated prior that was assault ¶¶ schewski, 30, 22, 23, 590 1999 SD ¶ Our review of the to trial. See id. 3. (citations omitted). 899, In N.W.2d 903 that plain- revealed record Martinmaas holding testimony that the defendant’s impeach was able to the de- tiffs’ counsel issue, placed credibility subjecting his at credibility by establishing that fendant’s by him contradiction on impeachment was licensed. Id. longer the defendant no cross-examination, if we noted that “even ¶ 58, at 612 N.W.2d ‘the evidence is not admissible under [Rule addition, In Dr. claims Schwartz 608(b) may impeach be admissible to ] Dakota, Eastern

Boomsma v. Minnesota by as allowed 19- contradiction SDCL 238, 106, Corp., R.R. 2002 SD 651 N.W.2d ”14 ¶ (Rule 607) (quoting 14-8 Id. [ ].’ grounds on other State overruled (S.D. 334, Byrum, State v. Martin, lends SD 683 N.W.2d 1987)) (citation omitted). Boomsma, support argument. to his case, Dr. es- trial courts In this Schwartz appealed [¶21.] the defendant practice neurosurgery to tablished his pertaining refusal to admit evidence license, immediately completing after which June plaintiffs expert’s optometry later, Twenty-one residency. his months expert voluntarily relinquished rather on Kostel. In the fourteen- operated of misconduct. he allegations than contest ¶ surgery, period preceding month Kostel’s Again, at 248. Id. sim- surgeries conducted two to Dr. Schwartz’s support case lends no which, by own during affirmed ilar the trial court position. We testimony, significant that, any deposition he made reasoning its in lieu of based on mistakes, malpractice suits were misconduct, allowing Ultimately, Dr. Schwartz entered than mere filed.15 “which amounted to no more estimate, there By Schwartz's own under SDCL 19-14-8 14. Rule 607 codified alleging thirty medical have been over suits provides: However, against malpractice filed him. credibility may attacked of a witness be dismissed, three oth- of those have been some verdicts, including party calling by any party, and at tried to defense ers have been nine remain to be tried. least him. cability whereby the Board stipulation into a with of the testimonial placed probationary during on sta- question- his license was obtained this line of precedent to ing. tus with numerous conditions reinstatement, including retraining his full alleges [¶ 24.] Schwartz group practice field and his chosen (Rule trial court misapplied SDCL 19-12-5 years given by The reason five thereafter. 404(b)) when ruled that Kostel could ask the Board for these sanctions was mal- questions him three regarding “other practice. acts”. alleged He also contends that this Nevertheless, Dr. Schwartz [¶ 22.] compounded error was unduly and he was testify that he be to contends should able prejudiced when the trial court issued a challenge applicable

without stan- limiting instruction the scope of the dard of care his credentials and ex- application of questions. his answers to the perience neurosurgeon. as a This is not Evidence Other Acts appropriate. Under the trial rul- courts ing, had Dr. Schwartz testified as he 404(b) Rule [¶ 25.] as codified at SDCL proposed, inquiry Kostel’s on cross-exam- provides: 19-12-5 based, ination would have been not al- on crimes, Evidence of other wrongs, or legations, but rather on Dr. Schwartz’s prove acts is not admissible to the char- malpractice. own admissions addi- person acter of a in order to show that tion, procedures giving rise to the conformity he acted in therewith. It malpractice actions about which Kostel may, however, be admissible for other inquired would have of Dr. Schwartz purposes, motive, proof op- such as were not of a kind remote in time intent, portunity, preparation, plan, type unrelated in to procedure. knowledge, identity, or absence of mis- Consequently, inquiry would have re- take or accident. lated to Dr. competency Schwartz’s thereby would have been relevant to the added). (Emphasis credibility assessment of his eyes Pursuant to pur- the “other jury. prejudice We find no in the poses” 404(b), under Rule court trial courts conditional exclusion of evi- allowed following Kostel to ask the three dence malpractice related the other questions purpose “for the determining actions and the Board proceedings, and whether Dr. Schwartz the requisite therefore, no abuse of discretion.16 skill and knowledge required of a neuro- the trial Whether court surgeon to read and interpret the radio- abused its discretion when it allowed graphic images in this case[:]” Kostel elicit from Dr. pertaining alleged “other you Did X-rays involving misread gave

acts” and when the court spinal surgeries in months limiting appli- instruction prior to surgery? Ms. Kostel’s 16. While our conclusion on this issue did Behrens, (S.D.1986): “Lay- 380 N.W.2d 659 necessitate a review of the expected trial court’s deci- men possess cannot be the tech- sion to lay allow Dr. Schwartz to knowledge experience required offer testi- nical mony surgical procedure about the intelligently guess physician second on di- performed spine, agnostic procedures Kostel's we reiterate our and the conclusions to holding therefrom; McVay, in Block v. especially 80 S.D. be drawn this is true in (1964) added), (emphasis a case such as this where the ... nervous grounds by ovemiled Shamburger [system] on other body of the human [is] involved.”

375 681, 689, many you 1496, 1501, did mis- U.S. how occasions 485 108 S.Ct. 99 2. On X-rays involving spinal surger- (1988)); read L.Ed.2d 771 See v. Mc- also State of time? during period Donald, 243, (S.D.1993) ies 500 N.W.2d 246 (additional omitted); citation see also of operate pa- at a level you Did (Rule 104(b)).19 SDCL 19-9-8 to in When evi- spine tients not consented the relevant, prior months to Ms. Kostels sur- dence is tips 14 found “the balance gery? emphatically in favor of unless admission” probative the substantially value is out- affirmatively all answered weighed by danger the of unfair prejudice, questions. three issues, jury, confusion of misleading the list of Given that the “oth delay, undue waste of time or cumulative 404(b) under Rule for which purposes” er pursuant evidence Wright, Rule 403. may other evidence of acts be admitted is ¶50, 14, 1999 SD 593 (quot- N.W.2d at 799 nonexclusive, uses, possible other the than Imwinkelried, ing Edward J. Uncharged character, Wright, are v. limitless. State ¶ Misconduct, 8.28, § Evidence 14, 118-19 792, 1999 SD (Rev. 1998)). 404(b) rule, party objecting ed. The inclusionary is Rule thus an ¶ 13 exclusionary (citing rule. Id. the admission other-act evidence Larson, Dakota John W. South Evidence then has the burden of establishing that 404.2(1) (1991)). only § Evidence inad the expressed concerns Rule 403 under prove under the if offered to missible rule substantially outweigh probative value. 404.2(1)). Larson, § (citing ¶ character. Id. Larson, 403.1; (quoting § Id. 16 (citing A Hofmeyer, Jane C. Relaxed Standard of Notwithstanding in- 28.] [¶ kOlpfb) Rule Evidence: United Proof for 404(b), nature clusionary pro of Rule Huddleston, v. Cooley States 6 L.Rev. 79 ponent of the evidence other-act has ¶ (1989))); also Id. 15 (citing see United of relevance showing burden of Betancourt, 734 States F.2d 757 (Rule 401);17 act. SDCL other 19-12-1 (11th Cir.1984) (Rule 403 is an “extraordi (Rule 402).18 19-12-2 SDCL other-act nary remedy only which should be used admissible only is then if the evidence sparingly permits since it the trial court to evidence is sufficient for the trial court to evidence”), concededly probative exclude a jury pre conclude that could find (11th Cir.1984), denied, reh’g 740 F.2d 979 ponderance that “act the other occurred denied, States, cert. v. United 469 Gerwitz and that defendant Was actor.” ¶ 50, 14, 365 1999 SD at U.S. 105 S.Ct. 83 L.Ed.2d Wright, (1984)). States, .. (quoting v. United Huddleston 19-18, by chapters 17. Rule 401 SDCL 19-12-1 statute or inclu- codified under 19-9 sive, provides: promulgated by the or other rules Supreme Court of this Evidence state. "Relevant means evidence hav- evidence” relevant is which is not not admissible. ing any tendency to make the existence of any consequence fact that is to the deter- 104(b) 19.Rule codified under SDCL 19-9-8 probable of -the mination action more or provides: probable less than it would without be. relevancy depends When the evidence evidence. fact, upon of a the fulfillment condition to, subject upon, admit it court shall 18. Rule codified under SDCL 19-12-2 the introduction sufficient provides: support finding fulfillment admissible, except relevant condition. All evidence is added). (Emphasis provided by as otherwise Constitution or treatment, requiring the ev- jury’s presence, pathology sive Out of showing purposes the inclusion argued the merits of idence entered counsel preju- two mistak- skill pertaining knowledge unduly to the was not of evidence performed surgeries Rather, conducted to enly spinal to Dr. Schwartz. it went dicial. proximity establishing Dr. Schwartz within time two by Kostel’s claim that argued fusions, Kostel’s. Plaintiffs counsel beyond with the consented-to additional surgeries the nature of these was L4-L5, performed to error due his were at and that evi- Therefore, to the case bar competency. relevant find lack of we thereof should be admitted to show dence court discre- that the trial did not abuse its pos- skill degree knowledge of permitted tion when Kostel to ask by reaching Dr. its Schwartz. sessed Dr. three admitted questions decision, the following the trial court made 404(b). pursuant answers Schwartz’s Rule assessment: Limiting The Application Instruction evidence is toward estab- directed 101(b) Rule Evidence. than

lishing matter and issue other propensity commit the defendant’s to [¶ 32.] review the “[W]e evidence that the oth- [T]he act. shows jury wording and inclusion of individual enough act is similar and close er arrange as well as the instructions overall enough in time to be to the relevant ment of instructions under the abuse is matter issue. evidence suffi- [T]the O’Brien, discretion standard.” Veith v. support jury finding ... cient ¶88, 25, 15, (citing 2007 SD 739 N.W.2d 23 this similar act. Dr. Schwartz committed Inc., Wal Elec. 2006 Co-op., Vetter Cam evidence probative value of the [T]he ¶ 10, (citations 612, 614 SD substantially outweighed the dan- not omitted)). However, cor reviewing their ger prejudice[.] of unfair toto and was rectness in whether the ultimately overall, properly The trial court limit- instructed apply we Vetter, (citing ed admissible evidence Dr. de novo standard. Id. 2006 ¶ 10, (citations three 711 afore- SD N.W.2d at 614 Schwartz’s omitted)). questions, wording of mentioned precisely crafted. The were parties was objected Dr. In- Schwartz further instructed that Dr. Schwartz could scope No. which struction limited the question “yes each no.” answer jury’s consideration of Dr. Schwartz’s ques- answers to the aforementioned three Dr. Schwartz’s other sur provided tions. Instruction No. 14 as fol- from geries, which the other-acts evidence lows: derived, was were similar in kind and close Further, surgery. alleged- time Kostel’s The evidence that Dr. Schwartz admission, difficulty own ly

his Dr. made with or radio- Schwartz misread during surgeries. graphic images separate mistakes those other on occasions Dr. plain- affirmative answers from care and From Schwartz’s treatment of the tiff, questions, to the three there sufficient that on occasion separate was oper- reasonably plaintiff conclude his care and treatment of to, could find that a level prior he had made ated at not consented only mistakes. Given Dr. defense You purposes. Schwartz’s received limited expansion pur- preoperative may of the consider this evidence scope procedure pose determining was attributable to whether intraoperative diagnosis requisite knowledge more exten- had the Schwartz given and none to where no instruction was neurosurgeon required and skill logically equate requested im- was does radiographic interpret read and may a claim of error were an instruction is not consid- with case. You in this ages given requested. and none was Failure to any purpose. Specifical- other er it for authority is a vio- supporting cite relevant infer that because you may not ly, 15-26A-60(6)20 and is difficulty with or lation of SDCL allegedly had Boston, a waiver. State v. on occa- deemed radiographic images misread ¶ (failure 71, 27, plaintiff SD from his care separate sions authority point). cite relevant not to to at a level consented operated Therefore, argu- in we need not address this manner in the same that he acted ment. in mind as well Keep treating plaintiff. that a alleged fact that it is

that the argues Dr. next that Schwartz wrongful in a may have acted person No. 14 is erroneous because it Instruction not separate occasion is manner on a supported by not the evidence. See Van is person that the has any kind Valley Hosp., Zee v. Sioux 315 N.W.2d matter at issue. wrongfully in the acted (S.D.1982) 489, that a trial (reiterating not, as a matter of law You should jury, by way of may present court fairness, as- a matter of fundamental instruction, only sup that are those issues way is or any in that Schwartz sume record). by evidence in the We ported malpractice liable for medical might be 404(b) expand prior need not on our Rule alleged that it has been simply because say that Dr. Schwartz’s analysis except to radio- difficulty with or misread he had other-act affirmative answers to the three involving other individu- images graphic court, sanctioned the trial see questions not consented at level operated als or ¶26, for the trial supra were sufficient entirely different occasions. to on jury that the reasonably court to conclude added). mistakes and prior find he had made could (Emphasis jury thereby could consider evi- ar Initially, Dr. Schwartz evaluating in prior of those mistakes dence by offering trial court erred gues that the knowledge pos- and skill he degree request. 14 without his Instruction No. that the Accordingly, we conclude sessed. Wangs cites argument, his support of sufficiently supported instruction was 1999 SD 598 N.W.2d Aldinger, ness v. limited the properly evidence and Ken 221 and Hall v. Commonwealth of considered to which it could be scope for Howev (Ky.1991). tucky, 817 S.W.2d purpose. the aforementioned er, support proposi his these cases do submits Finally, Dr. Schwartz they support do proposition tion. The addi- No. 14 created that Instruction request does not appellant an. that where he was re- of care that tional standard at trial and the limiting instruction Moreover, Kostel. quired provide sponte give the court does not sua trial in- the clear limitation instruction, despite er appellant cannot claim in the manner placed on 1999 SD struction Wangsness, appeal. ror on See ¶ his re- jury could consider 228; which the 103, 20, see also questions, other-act to the three Hall, Finding sponse no error at 229. 817 S.W.2d therefore, sented, cita- and the 15-26A-60(6) the reasons pertinent provides in 20. SDCL authorities relied on.... part: tions to the argument the contentions shall contain [A]n pre- party respect to the issues with prior when read in with acknowledging surgeries context other related X-rays instructions, and had he had misread con- we conclude that the was patients’ areas of procedures in ducted properly instructed overall. consent, beyond patient spines [¶ 38.] 3.Whether court alleges instruction abused its when it discretion refused jury could suggested that consider anonymous to admit an letter sent response negligence as evidence Kostel, author which was We disagree. the instant ease. competitor of Dr. Schwartz’s and non- applicable standard of care to the de- testifying expert for Kostel. negligence given

termination of was April or about [¶ 39.] On with Instruction No. anonymous Kostel received an letter. The provided: neurosurgeon “A is negligent message typewritten following: stated the skill, if he fails to exercise the level of knowledge, diagnosis and care you happened surgery What reasonably treatment that other careful They trying up. real bad. are to cover it possess and neurosurgeons would use They yesterday told us all at work not to (Emphasis similar circumstances.” add- anything talk that happens about in the ed). Instruction 13 No. informed the operating room. These things shouldn’t jury how it could make the determina- have I happen. copied to this add [sic] ap- tion of whether Dr. Schwartz had form phone [sic] the book. This man care. plied standard of “You must helped my any- has friends. Don’t tell decide Schwartz possessed whether Dr. body I my job about this letter need skill, knowledge, and used the and care don’t want it. to lose which the law demands based on the “add,” The referenced included the en- and evidence members of velope, Pages was from a Yellow advertise- profession testified as expert who personal injury ment for a attorney witnesses.”21 Instruction No. 14 then Rapid City. other-act as an provided addi- upon tional Teuber, M.D., basis which could Larry Rapid a very purpose consider for the narrow of City ultimately to neurosurgeon, admitted determining Dr. Schwartz “whether had being the author the letter.22 Dr. Teu- knowledge requisite and skill ... to ber had had no contact with prior Kostel interpret radiographic read and im- anonymous sending to letter and knew ” ages .... nothing of at her condition that time other associate, than that he heard from his [¶ 37.] Since Instruction No. was M.D., 404(b) Seljeskog, procedure Edward that a evidence, supported by Rule conducted on an unnamed individual had carefully scope limited the for which that 8, considered, longer expected taken than on March evidence could be we find no 2002. Teuber admitted that he abuse discretion in trial in- wrote the court’s Veith, way clusion letter in of this instruction. See such a as to make it appear ¶88, 25, Moreover, SD at 23. though it had written a been nurse Kostel, alleges Including Dr. Schwartz also that the to 21. the letter Dr. Teuber 22. sending anonymous admitted four to gave court letters abused its discretion when it In- patients Daly, However, of Dr. Schwartz. See Dan disagree struction No. 13. we also physician's Surgery prac- Black Hills Center assertion, with this we will address in suspended days, tice Rapid City for 90 Jour- 4. Issue nal, A, pg. September section complaint 42.] he Kostel filed her on completed [¶ technician. Once or a scrub 14, 2003, and February therein made sev- envelope it in an and stuffed the letter anonymous eral letter. references Pages advertise- with Yellow along trial, Prior Kostel an amended filed ment, secretary address it he had his office complaint in which she deleted all refer- it in the handwriting, place her anonymous ences letter. Neither mail. Dr. Teuber nor Dr. was called to Seljeskog a sought opinion Kostel second testify at the trial. orthopedic Rand Schleusen- surgeon, Schleusener continued M.D., er, began first saw and whom she trial, through treat Kostel time of on 2002. At treating September with Durward, M.D., Quentin along with counsel, plaintiffs Kostel request Dunes, from Dakota neurosurgeon South on examined Dr. Teuber one occa- was Dakota, they experts testified as plaintiffs November addition to sion on trial. Both testified that the L4-L5 examination, reviewed series of his segment, to which Kostel had consented dating MRIs from 1995 to 2001. surgery, appropriate was candidate report summarizing Dr. Teuber drafted operated fusion at the time Dr. Schwartz findings from In this the examination. They also Kostel. testified into evidence at report, which entered L3-L4 was not in need of treat- segment trial, while Dr. Teuber there stated ment that there was no reason medical degeneration of L4-L5 was a distinct to disk fuse that remove the there and segment the L3-L4 “the was segment, addition, that segment. they agreed In further, and only normal disc in her back” preoperative there had been no need to very only is minimal that “[t]here perform the fusion at L5-S1. degenerative change of of the L5- amount 26, 2006, May Dr. Dr. On the trial court [¶ 44.] disc.” Schleusener reviewed S1 suppressing to him issued an order Dr. Teuber’s report spoke and about Teuber’s anonymous Pages and the Yellow condition. In December Dr. letter Kostel’s advertisement, following motion performed an anterior inter- Kostel’s Schleusener spacer23 and in she allograft support with brief in thereof which body fusion femoral argued items be segment improve stability precluded in L5-S1 to that said should n. 17 supra of for lack relevance. in this area near the base Kostel’s of See spine.24 (Rule 401)) n. (citing 19-12-1 and SDCL trial, an allograft transplant of 24. At Schleusener testified that An ... tis- Dr. "[t]he per- to interbody from one individual another ....” sue anterior fusion is a fusion com/script/main/art. http spine. ://www.medterms. of He stated formed on the front (last August asp?articlekey=30941 2008). visited pedicle that that Dr. least one screw autograft, This is in contrast to placed in was not Schwartz had the sacrum “[tjissue transplanted part which is one seating properly. He indicated that the sac- body to another in the same individu- spinal the other bones rum differs from http com/script/main/ al.” ://www.medterms. does not that the material the sacrum bone (last August art.asp?articlekey=40486 visited anchorage screws make as secure an 2008). Dr. testified he Schleusener that suggested problem with the screw that the segment removed the disk from the L5-S1 seating may been properly have that was not spine replaced it with a bone Kostel’s long, three-segment fusion attributable to allograft spacer.” graft called a "femoral He performed on Kostel that Dr. Schwartz had spacer piece "a described the of femur L5-S1, span of to the entire from L3-L4 wedge-shaped shape cut into the of a that’s being which anchored at the sacrum. from cadaver.” [a] donut 402)). (Rule (citing by 19-12-2 Dr. ment in the treatment Kostel SDCL suc- cumbing by that this was to asserts error animus motivated influence Schwartz relevant should that the letter was Dr. Teuber.

have been admissible. Whether trial court [¶ 47.] by abused its discretion the inclusion First, Dr. Schwartz argues

[¶ 45.] objected by Dr. instructions anonymous why relevancy letter and the Schwartz denial others that Second, him. he Kostel lost trust in con- requested. he tends the letter could have been used to refute Dr. November Teuber’s alleges Dr. numerous Finally, alleges report. examination he examples of reversible error the selec- deep Dr. motivated Teuber was out tion of instructions. personal stemming posi- animus from his Requested Instruction No. 13 as a of Dr. competitor tion Schwartz’s. preop addition to the Dr. Schwartz also cites the fact that Dr. diagnosis degenerative erative of a verte Teuber and Dr. own- part Schleusener are segment at bral the L4-L5 location Surgical ers the Black Hills Center. spine she had consented Coupled with the fact that Dr. Schleusener surgery, to fusion Dr. Schwartz avers that findings spoke reviewed Teuber’s pathology requir discovered additional him prior performing pro- with his own ing surgery treatment once had com Kostel, cedure on Dr. Schwartz contends such, As menced. he asserts that he did that Dr. Schleusener was influenced the applicable breach standard of care Teuber and that the letter was relevant expanding preoperative scope of the put influence into context. procedure to include additional treatment. arguments We these to be find He, therefore, argues unduly that he was attenuated and see no reason disturb prejudiced when the trial court refused the trial regarding court’s decision this him in following judgment” the in “error discretionary decision. The reflects record struction: that suffering postopera- Kostel was A physician necessarily negligent is not degree enough tive distress to a significant physician the in judgment because errs justify another seeking opinion notwith- or prove because efforts unsuccessful. standing her receipt anonymous the let- physician negligent The is if the in error Moreover, ter. fail we to see the manner judgment or lack a of success is due to in which the letter could have served any perform failure to of the duties as refute Dr. report Teuber’s examination or defined in these instructions. testimony. undermine Dr. Schleusener’s Beyond them concurring opin- recently the fact that explained [¶ 50.] We in ¶ Harbert, 87, ions about Papke 50, Kostel’s condition were corrobo- SD 2007 738 by 15, rated at trial an physician unrelated 510 n. n. N.W.2d 527 15 that in the state, from the other end of Dr. malpractice setting medical this instruction long-term, Schleusener commenced a only given physician med- is to be when is relationship with during presented ical-care Kostel with multiple options treatment which he his own diagnoses acceptable made and that are viewed as in the sub procedures. ject conducted his own is of practice. It hard field also emphasized We anonymous to conceive how letter in area applica even this limited someway tion, have in would shown Dr. error-in-judgment an instruction can judg- Schleusener subordinated his propose physician may own not that the commit plaintiffs liable. While the and not be vant. submitted ex- mere error or mistake at pert testimony trial that when the Id. de- type injured plaintiff vice present not This case does operated correctly no burn would was re- the requested appropriate application sult, they no as expert offered issue here was instruction. applicable operat- standard of care in choosing in Dr. erred whether Schwartz 532, such at ing a device. Id. 19 N.W.2d multiple acceptable methods to one of 521, 523. The court entered direct- The issue wheth- spine. treat Kostel’s at verdict for the defendant. Id. ed fusing made a mistake negligently er he at 521. 19 N.W.2d need segments that did not two vertebral Accordingly, the trial court to be fused. verdict, Reversing the directed [¶ refusing in re- was correct Schwartz’s “[t]he this Court concluded that character quested instruction. injury in connection with other facts or Bad Condition” “Unfortunate the fair and circumstances and inferences Instruction could draw from them con- gave court 52.] The trial credible evidence and stitute substantial In following designated instruction would have sustained verdict struction No. 15: Id. at at plaintiff.” this may reaching

A not be conclusion this Court set finding negligence ipsa in a solely applicable evidence of bad result to out rule case of res based re- question, loquitur: in but bad the claimant by you, along may sult be considered not, itself, the result alone “[W]hile evidence, determining with other yet negligence, may evidence of same negligence. You are the sole issue of considered, together nevertheless be given judges weight to be facts with other and circumstances dis- kind of evidence. in a given closed the evidence case added). Dr. contends

(Emphasis Schwartz determining whether not such result jury that it could con- instructing negligence or want of is attributable along result with other sider bad skill.” deciding whether (quoting Id. at negligent was an abuse discre- been Willett, Berg v. Iowa 232 N.W. In support tion under the circumstances. (citations omitted). (Iowa 1930)) 821, 823 compares this position, of his Court’s Isaak,

analyses in Hansen v. 70 S.D. Shamburger, plaintiff In the un- 55.] [¶ (1945) Shamburger v. 19 521 surgery and thereafter his derwent colon Behrens, (S.D.1986). 659 380 N.W.2d inexplicably deteriorated. 380 condition Eventually, it was deter- N.W.2d at 661. Hansen, in effect

[¶ this Court 53.] plaintiff developed an mined that the as characterized the factual circumstances the colon had abscess at the location where case, loquitur pres- ipsa where the res Following presentation the resected. been negligence speaks for itself without ence of plaintiffs at the trial on the of evidence testimony show expert the need suit, malpractice the trial court instructed 70 the care. S.D. at breach of standard of that jury “The fact an as follows: child at 522. Plaintiffs resulted to unfortunate or bad condition operated a device that was was burned the care afforded to during Plaintiff ... control of the by and under the exclusive ... not alone by Defendant does all times rele- him chiropractor defendant at 382 ...

prove negli- jury Defendant was that that Kostel’s “bad result” was no 25 added). (emphasis negligence. at n. evidence gent.” Id. However, Shamburger did not in appeal, plaintiff On go that far. It is clear that while this Shamburger argued that the instruction result,” did intend Court not for a “bad prejudicial properly was in- did arising comparable out of circumstances jury struct on causation without Shamburger, alone prove negligence, language inclusion of from the rule set out Shamburger instruction does not fore- in Hansen —that his bad result some was jury considering from close the “bad evidence in itself that could be considered other in along result” with evidence deter- in with other evidence the record in deter- mining whether the was negli- defendant mining the physician whether had been ¶ 663; gent. supra See at id. see also negligent. Id. 663. This Court af- Therefore, we find that the trial court did given by firmed the instruction the trial not abuse its discretion when instructed court on the based distinction between the jury that it could consider Kostel’s bad factual in circumstances Hansen and the along result with other in evidence deter- Significant case at bar. Id. at 664. to this mining negli- whether Schwartz was Court that the injury unlike in Han- gent. Kennelly See Burgess, Md. sen, injury Shamburger to the plaintiff (in (1995) 562, 654 A.2d a case type “was not ... which plaintiff injury where suffered brain dur- be of negligence.” could Id. itself ing operation on his cavity sinus added). (emphasis experts disputed physi- whether defendant case, Returning instant care, cian met applicable standard of clearly Instruction No. 15 allowed the opined instructing the court that the jury to consider Kostel’s bad result with along unsuccessful following “[a]n result finding other evidence in reaching its medical treatment is not negli- evidence of negligence. Dr. Schwartz contends gence” implying that the bad the trial have given court should an in- result was “no evidence of negli- at all struction Shamburger similar to the in- added). gence”) (emphasis such, As because, struction in Shamburger, this Kennelly the court held instruc- too negligence is a case is not tion was erroneous because the “well set- apparent expert without principle tled that no presumption or infer- such an instruction would have informed of negligence ence arises from the bare clarity, In the interest of we surgeon note faith. A board-certified is not an No.7” Shamburger, "Instruction cited judgment insurer of the correctness of his provided entirety, part its in relevant as fol- or the end result his medical treatment. lows: that an bad condi- fact unfortunate during tion resulted to ... the care general surgeon brings If a Plaintiff board-certified to him ... does not care, patient knowledge skill and afforded alone Defendant of prove negli- that ... was surgeon, the reasonable board-certified Defendant gent. patient damages is not liable to that for added). (Emphasis 380 N.W.2d at n. 5. resulting good judg- from a faith error of Although Shamburger, in this Court af- may guilty. ment which he have been paragraph firmed the second the of instruc- requires surgeon law a board-certified tion, analysis professional which is relevant to any base our in the decision he made on case, Court study skill and careful and instant this reversed the trial consideration of case, "good the but the depends when the decision courts inclusion of faith error in upon judgment, judgment” language the exercise of paragraph the law re- in the first of quires only good judgment that the be in Id. at Instruction No. 7. proposed Requested the Schwartz Instruction meant bad result]” bad happening [a No. 11. into con- be taken “may nonetheless result Id. at assessing negligence.” in

sideration You must decide whether Dr. Schwartz omitted). (citations 1340-41 the skill care the used and which law testimony the demands based on and Moreover, that the we conclude neurosurgeons evidence of who testified in overall this properly instructed jury was as expert witnesses. instructed jury the was regard. While However, you permitted to are consider result it Kostel’s bad could consider lay opinions the and conclusions wit- reaching in a along with other evidence subjects nesses on those which are unth- negligent, Dr. finding that Schwartz was knowledge compre- in the common and it be unless con- could not reached such people ordinary who have hension of applica- the provide had failed to cluded he education, experience, opportunity and out in other in- of care set ble standard observation. Viswanathan, structions. See Williams (holding in (Tex.App.2001) a S.W.3d 624 argues Dr. Schwartz an alert malpractice medical case where Kovarik, Magbuhat v. -46 near-drowning victim died responding, (S.D.1986) (citations and omitted) supports the receiving emergency room treatment after proposed use of his instruction over the the there was and record reflected given. Magbuhat instruction that among experts whether defendant dispute general the rule that Court reiterated provided with the physician had decedent “m malpractice negli medical cases care, trial court did applicable standard of be gence must established testimo it instructed its discretion when abuse ny of experts,” medical because verdict not base a that while it could a malpractice case cannot based on be “solely finding negligence on evidence of conjecture.” In “speculation support result,” a result could be consid- a bad bad instruction, proposed jury of his Dr. evidence”); see “along with other also ered subsequent Schwartz cites to the Court’s 654 A.2d at 1343. Kennelly, rule Magbuhat, clarification does “[t]he opinions not exclude the and conclusions No. 13 Instruction subjects are lay on which within witnesses Dr. Schwartz You must decide whether comprehen knowledge common skill, knowledge, possessed used ordinary edu persons possessed sion of law based and care demands cation, See experience opportunity.” of mem- on and evidence omitted). However, (citations id. testified as profession bers who rule conditioned the extension Court expert witnesses. lay testimony on the inclusion of phy such when “a objected type of circumstance tri- Schwartz knee, patient’s operates [and No. 13 sician utilization of Instruction al court’s treated,” wrong because [is] knee precluded then] arguing that circumstance, lay “the under that kind of opinions and conclusions of considering without [the error] could determining whether Dr. witness establish lay witnesses conjecture or speculation applicable indulging standard had met the beyond layperson’s realm.” knowledge Specifically, Schwartz refer- of care. neurosurgery does complexity of Id. The “lay” testimony and of ences his own situation. pose not that kind of self-evident practitioner Bonnie Miller nurse certified 469, 476, 126 McVay, v. 80 S.D. Sieg. Dr. See Block Daryl assistant physician and overruled, (b) (1964), on other N.W.2d whether actor’s conduct has cre- grounds by Shamburger, 380 at ated a force or series of which forces opera- are in agree with the rationale continuous active 663. We of harm, up tion time or rejecting court in Dr. Schwartz’s Re- a has created situation un- in harmless quested Instruction No. 11 favor of In- upon less acted for by other forces lay opinions struction No. because “no which the actor not responsible; is ... conclusions were received or al- ” in issues lowed this case relevant (c) lapse of time. added). jury. (Emphasis before (Second) (quoting Id. Restatement of Torts 433).

§ Instruction No. 10 that, Dr. argues 63.] Schwartz with- [¶ setting out out the in an above factors legal is a that produces A cause cause a instruction, properly could not probable in natural result a se- significance evaluate the of the role that quence, without result which the surgery played postopera- in Kostel’s not would have occurred. in tive condition fac- context other legal only The cause not need be the degree such as the tors of deterioration in cause, nor the last or nearest A cause. pre postoperative physical her condi- legal may act in cause combination with health, tion the state of her mental and the produce other a It causes result. extent to Dr. may which Teuber ex- have sufficient if occurs with some other ploited her mental health for his own ends time, acting cause the same in by sending anonymous her the letter. injury. combination with it causes the Schwartz However, does legal exist, you cause to any authority compel cite that would a find complained must conduct trial court to include the fac “substantial a bringing was substantial factor tor” evaluation instruction he proposed. about the harm. In this case we conclude that was there added). (Emphasis evidentiary support the jury find argues In- surgery performed that the on Kostel incomplete, struction No. 10 was without postopera substantial factor in the expansion on the term “substantial factor.” tive condition her spine notwithstanding proposed He that included instruction the other he cites. The record factors in determining factors consider “sub- Kostel, reflects evidence to the effect that (Second) stantial factor” from Restatement although suffering discomfort her back Torts, section 433 cited Mulder and lower extremities a degenerative 544, 549-50, Tague, 85 S.D. 186 N.W.2d L4-L5 segment, vertebral nonetheless (1971), adopted where Court employment maintained full and a reason “substantial factor” as the determination ably lifestyle active prior surgery. Kos- proximate legal whether an act is the forty-four years tel was old at the time of for a plaintiffs damages. cause Re- surgery. During surgery, where it statement for determining factors whether been originally L4- intended an act is substantial factor are as follows: segment fused, L5 would be other two (a)the number other segments factors which were also fused. There was ex in producing

contribute harm pert testimony that at one least of the two and the extent of the effect which additional segments that were re fused it; they producing have quired follow-up procedure within nine

385 testimony argues that expert 67.] also the [¶ There was months. jury also had to be instructed on how to segments subse- adjacent vertebral that judge credibility. He cites v. Han to State repetitive involved due quently became (1931) 191, ley, 58 S.D. 285 in N.W. 516 and placed that been with rod contact By Through Frazier and Frazier v. Nor the initial during spinal column Norton, By Through ton and 334 N.W.2d by Dr. performed Schwartz. surgery (S.D.1983) regard. in this These testimony that these expert There was cases, however, are not In supportive. segments in- adjacent vertebral became Hanley, this Court reviewed an instruction during four-year the to an extent volved effectively that was the same as the 8, 2002 following surgery the March period “fal- uno, in in omnibus” Instruction sus ultimately had to have all that Kostel falsus 7, No. but the a clause at addition of segments several her lumbar vertebral qualifying the end of the instruction to segments fused of her thoracic vertebral jury disregard under could basis now frozen from point spine that her testimony of a far all witness’s so to of her shoulder her tailbone the middle —“in to be at you believe it false.” S.D. blades. 235 N.W. at 517. This Court held that the We find no abuse discretion [¶65.] qualifying phrase additional was erroneous No. in of Instruction the settlement jury it the province because was to jury properly over- that the was instructed testimony it reject even witness that be- “legal in to cause” and its “sub- regard all to that lieved be true when believed at factor” prerequisite. stantial falsely. another time that witness testified Credibility Instructions at 235 N.W. 517-18. Howev- Id. objected to er, Dr. Schwartz [¶66.] held the instruc- Court erroneous following as insufficient on instructions tion was not reversible error because the credibility. the matter witness trial court included an additional instruc- how that informed the on

tion credibility. No. 5: at Instruction assess Id. at 518. may

You have heard the terms direct Frazier, and circumstantial evidence. appellants evidence ob- rejection law makes no distinction between The trial court’s of their jected The evidence. designed direct circumstantial to address proposed instruction facts simply must determine the credibility regard prior incon- witness greater convincing all from the force of statements. sistent case, in the both direct and gave trial an instruction court instead credibility. circumstantial. how This Court on to assess choice of instruc- held court’s judges all the You are sole facts in the context of a tion was not erroneous credibility the witnesses. uno, instruc- in omnibus falsus falsus added). (Emphasis given. also Id. at 869. tion No. 7: Instruction logically It does not follow from Hanley Frazier you any testifying holdings If witness believe incomplete falsely 5 and 7 were case sworn Instruction Nos. knowingly has instruc- case, an additional matter in this then or erroneous without any material find credibility. We you may reject all of the tion how assess in the trial court’s abuse of discretion no witness. regard in this and of exception anxiety depression, to instruct infer refusal and jury competent assessed the suppressed that the court court all other evidence or history judge credibility psy- to -without the additional references to Kostel’s of other chiatric instruction.26 disorders. jury We conclude the was in- We

[¶ 70.] [¶ 74.] will address Schwartz’s they and that Dr. of properly liability structed overall claims error relate to any damages. basis on of Schwartz has shown no and upon could charges error which we de- Liability cide there would have been a different Schwartz claims that evi- outcome had been instructed as history dence of the full extent of Kostel’s proposed. psychiatric disorders would have re- 5. Whether trial court other vealed factors that were responsible sponte abused its discretion the sua postoperative her condition. Dr. preclusion of evidence related to Kos- respective Schwartz cites the depositions psychiatric history of tel’s disorders. Durward, Schleusener, of Drs. Seljeskog Teuber, history psychi- all [¶ 72.] Kostel who patient’s stated variety atric treatment for a psychiatric of disorders health is relevant to a neuro- prior surgery. surgeon Kostel’s medical because patient’s effects the recovery. records indicated that she had proof received He also cites the offer of counseling anxiety, regard or treatment de- this provided by expert defense pression, post-traumatic stress disorder Dr. Eichler. Mark Dr. Schwartz also abuse, stemming tendencies, suicidal claims that psy- information about Kostel’s behavior, multiple per- self-destructive chiatric disorders would provided have im- sonality peachment disorder. Kostel also had pertinent made evidence abili- her ty several at attempts accurately suicide and had been perceive and recall events prescribed occurring several forms of psychotropic around relevant time. medication. [¶ 76.] The trial court was skeptical of began

[¶ 73.] When Kostel consultation the foundation for neurosurgeons’ with Dr. completed Schwartz she a pa- relevancy claims about psychiatric tient-intake form on which surgical she indicated health to recovery quali- and their history anxiety, she had a but testify no fications to thereto. The trial court psychiatric other conditions. At the time told defense counsel that he would have to the March 2002 surgery, satisfactory Dr. make a of proof offer before any testimony Schwartz was not aware of history such be would allowed. To end, psychiatric of other disorders. With the defense counsel offered the testi- (2) intelligence; 26. While we find no error with the trial their pertain- memories; court's selection of (3) instructions their ing credibility, witness the future claims (4) testifying; their manner while regard largely of error in this be could avoid- (5) they something whether said did or dif- ed the inclusion of an instruction similar to time; ferent an earlier Jury South Dakota Pattern Instruction (6) qualifications experience; their (SDPJI) provides: 2-01. SDPJI 2-01 (7) interest, bias, any apparent prejudice judges are sole You of all facts and have; they may credibility deciding witnesses. what (8) testimony the reasonableness of their believe, you may consider: light of all the the case. (1)the ability opportunity witnesses' observe; witness, Eiehler, “guard against surprise to and to who enable last mony pres- adversary investigate profession- with and had conducted an to familiar was psychiatric affects of standing expert on the al proposed entations wit- recovery. trial court ness”). patient health on during which hearing a Daubert conducted regard In to Dr. Schwartz’s medical literature presented

Dr. Eiehler claim the suppressed evidence had about selection of other information value, argues that a impeachment for- expected and their sur- surgical candidates have mer co-worker of Kostel’s would of- part psy- on their based gical outcomes testimony about “black-outs” that fered chological profiles. allegedly Kostel told co-worker she the of- rejected The trial court were experienced had attributable to that Dr. finding proof fer personality her disorder. multiple Howev- neurosurgeon that a failed to show er, Dr. Schwartz offered no authoritative under 19—15— expert as an SDCL qualified multiple personality evidence on disorder 702)27 (Rule testify psychologi- 2 to about may Kostel’s per- or how have affected concluded The court also cal disorders. ceptions and recollections. literature was sat- supporting that the judge trial must 79.] “[A] standard to meet the Daubert isfactory an expert’s ensure that rests on Moreover, Dakota.28 applied in South both ‘reliable foundation and is relevant previously court that Dr. Schwartz’s stated ” Monson, Rogen to task at hand.’ v. Dr. Eiehler intention have unannounced ¶ 51, 456, 13, 2000 609 459 SD N.W.2d hearing psycho- a Daubert about opine at 482, (quoting Hofer, State v. 512 N.W.2d recovery was not aspects surgical logical 1994)) (SD (citing 484 Daubert v. Merrell timely oppor- denied Kostel an noticed and Pharmaceuticals, Inc., 579, Dow 509 U.S. tunity Dr. Eichler’s basis. See to discover (1993)). 2786, 113 125 L.Ed.2d 469 S.Ct. 542, 552, 72 S.D. 37 Hoisington, v. Peters ruling admissibility expert When on the (1949) 410, that when (opining 415 N.W.2d function opinion, the trial court must as expert allow an deciding whether to (quoting Kuper Id. Lin gatekeeper. testify, the trial has broad discretion court ¶ 145, Co., 41, Elec. 1996 SD much notice coln-Union into consideration how take 760.) 748, regard 557 provided has been so as N.W.2d party adverse (2) subjected whether the method was 702 under SDCL 19-15-2 27. Rule codified review; peer provides: rate; (3) potential the known or error scientific, technical, specialized or If other (4) pro- control whether standards exist to knowledge the trier of fact to will assist method; cedures for the the evidence or to determine understand (5) generally accept- is whether the method issue, qualified as an ex- fact in a witness ed; skill, pert by knowledge, experience, train- (6) technique relationship of the education, may testify ing, thereto in the or that have been established reli- methods able; opinion or form of otherwise. determining whether an 28. The standard for (7) qualifications expert; of the expert's theory qualifies method as scienti- or (8) non-judicial uses to which meth- fic, technical, knowledge specialized re- or pul. been od has quires application following nonexclu- ¶ 61, 35, Guthrie, 2001 SD 627 State v. assessing admissibility sive list of factors 401, (citing v. Merrell 416 Daubert at trial: 579, Pharmaceuticals, Inc., 509 U.S. Dow 2796-98, 2786, 593-95, 125 (1)whether 113 S.Ct. method is testable falsifi- able; (1993)). 469 L.Ed.2d (N.H.2006). discretionary authority court’s trial A.2d 956-57 This is not Heating Wells v. Howe & Plumb- say place broad. intended to that there is never a ¶ 16, ing, 2004 SD discovery party’s disclosure of a Co., (quoting Kumho Tire Ltd. v. Carmi- psychological confidential health informa- chael, 137, 152, tion, U.S. S.Ct. merely court, but before (1999)). 143 L.Ed.2d 238 disclosure, sanctioning discovery such thoroughly proceed consider with can infer from the record [¶ 80.] We great care so as not open to that door for great that the trial court had concern an inappropriate purpose. Finally, we the probative about value of histo- Kostel’s think it worthy emphasize to that the issue ry psychiatric of disorders balanced of Dr. whether Schwartz was negligent the against prejudicial admitting effect of ease not turn psychiat- did on Kostel’s such uncertain evidence of relevance. The thereof, ric health or lack but rather on appears court to have decided on a com- provided applicable whether he stan- the promise by allowing Dr. in- Schwartz to in conducting dard of care surgical the quire history into anxiety her of de- procedure. Accordingly, on the of issue However, pression. the record reveals liability we find no of abuse discretion in court, the trial after reviewing the trial court’s refusal to allow Dr. respective depositions of the neurosur- inquiry history Schwartz’s into Kostel’s of geons, provided literature de- psychological disorders. fense, and conducting after a Daubert hearing, was unconvinced as to the rele- Damages psychiatric of vance Kostel’s disorders surgical to recovery argues [¶ 82.] relation her Schwartz also qualifications history that evidence of neurosurgeons psycho of Kostel’s of pro- to logical vide in that disorders was on regard. relevant the issue damages. of Dr. Schwartz avers that had Moreover, we would point the bulk the psychological evidence been out that the evidence of psychiat Kostel’s admitted it apparent would have been ric disorders would have involved disclo quality prior surgery Kostel’s life to pages sure of hundreds of material oth she, witnesses, was less than her lay erwise covered under the therapist-patient plaintiffs during closing counsel argument privilege. Confidentiality qua sine claimed to be. relationship. non of that State v. Heren deen, 323, 647, 279 Ga. 613 S.E.2d 649 physical pain Where (2005) Redmond, (citing v. 518 U.S. and suffering absent mental im anguish Jaffee 1, 10-11, 1923, 1928, 116 135 pairs life, S.Ct. L.Ed.2d the enjoyment of the mere fact a (1996)). “Effective ... psychotherapy plaintiffs complaint references loss of en depends upon atmosphere joyment confidence is not upon life a basis which to and trust in patient which the is willing place that plaintiffs mental or emotional make a frank complete disclo at state issue. v. Garbacik Wal-Mart 10, Jaffee, sure -” LLC, 500, (Fla.Ct. 518 U.S. Transp., at 116 S.Ct. 932 So.2d 1928, 135 L.Ed.2d 337. if “It is difficult App.2006). “In the plain event impossible for psychotherapists claim enjoyment tiffs for loss of is limited being function without pa able to solely assure physical effects of the defen- of confidentiality and, indeed, tients privi alleged malpractice, question dantfs] then leged communication.” Desclos v. New ing S. regarding plaintiffs mental state Ctr., Hampshire Med. 153 N.H. 903 would be improper.” Mora Saint Vin- Ctr., claiming damages Kostel from for that 8 Misc.3d Catholic Med. cent’s her (N.Y.Sup.Ct.2005). portion expenses medical that were 800 N.Y.S.2d her “written off’ healthcare service evidentiary support There was providers agree- accordance with their summary during counsel’s plaintiffs Medicare, whereby charges ments with activity argument degree closing recipients are limited. Medicare life accustomed her to which Kostel was $210,219.00. charges billed medical totaled surgery performed before actually paid The amount in satisfaction of March her on less charges billed Medicare “write horses, fun, rode and she she She $94,727.41. argues offs” was Dr. Schwartz played with her enjoyed life.... She trial court allowed Kostel a wind- mom, kids, she was the soccer she $115,491.59by precluding fall of disclosure even two around[. N]ot kicked the ball portion of the “written off’ of the medical surgery, the down on before she’s weeks charges. floor, grandchild. playing with her the presented recently, at trial there was a [¶ Evidence was Until 85.] 89.] [¶ spine has been fused as to whether South col- question that because Dakota’s blades, Kostel, to shoulder recog- from tailbone lateral rule that this Court source years with forty-eight is old who now nized in Moore v. Kluthe & Lane Ins. in degrees and Master’s social Inc., Bachelor’s Agency 89 234 260 S.D. N.W.2d work, and resides in is unable work (S.D.1975) applied to Medicare “write elderly. She living facility for the assisted this “[t]otal offs.” In that case Court held variety a of medications pain takes by an partial compensation received daily requires assistance with such routine source, a injured party from collateral her vacu- preparing activities as meals and wrongdoer, wholly independent of the does uming apartment. her operate to recov- damages reduce the wrongdoer.” from the erable Id. Kostel upon The basis which 86.] [¶ (citations omitted). at 269 We 234 N.W.2d grounded not the damages claimed on Papke, SD settled this matter 2007 psychological state difference between her ¶¶ 79-80, reit- 738 N.W.2d at 536. While the surgery, and after but on differ- before erating plaintiffs law “that are our settled function as a being able to ence between the reasonable value of entitled to recover reasonably person surgery fit before services, consti- and what of their medical nearly incapacitated by time being value for those services no discretion in tutes reasonable trial. We find abuse of held question[,]” we inquiry jury to allow the trial court’s refusal applies disor- source rule Medicare history psychological into Kostel’s collateral jury’s determina- purposes jury’s for assessment “write offs” such ders value of medical damages. tion of the reasonable begin with amount services shall the trial court 6. Whether 87.] [¶ billed, any Medicare medical service before evidence that when excluded erred ¶ 78, at 535. Id. “write off.” portions of Kostel’s medical bills were such, trial no As we find error pursuant federal laws off’ “written present allow Kostel to court’s decision to billing governing of Medicare ben- jury’s consideration. those amounts for eficiaries. trial court trial, [¶ Whether 90.] the court de [¶ 88.] Before by denying Kos- abused its discretion preclude motion nied Schwartz’s request jury for a HOFFMAN, tel’s determination Judge, [¶ Circuit KONENKAMP, punitive damages. sitting Justice, her on claim disqualified. argues that 91.] Kostel the character [¶ ZINTER, (concurring specially). Justice harm her upon inflicted I [1197.] concur and write on Issue damages punitive was such that regarding partial court’s exclusion order and that were should relating of evidence to Kostel’s mental been as to that option. have instructed agree health.29 I with the Court’s affir- punitive damages claim Before can be mance of the trial deny court’s decision to submitted to “a reasonable basis requested Dr. Schwartz’s use of all of Kos- willful, to believe that there has wan- been mental history. tel’s health I write to ton or conduct the part malicious my issue, explain view of including party claimed must be against” shown support additional factual for our decision. convincing “clear evidence[.]” SDCL I also explain my write to view of the words, 21-1-4.1 In other claimant must .the regarding Court’s discussion the interplay prima showing “a punitive make facie privilege on the issues. damages may be order.” Flockhart 98.] On the issue liability, (S.D.1991) Wyant, involves ability physically Kostel’s to heal original). in (emphasis While was there after the I surgery, would hold that the sufficient in support evidence this case to a justified lack of notice alone preclusion jury finding negligence of warranting com- of Eichler’s testimony. respect With pensatory upon we no damages, find basis requested to other of uses her mental which to conclude Dr. Schwartz’s conduct history health with respect liability,30 to I in treating Kostel rose to a that level would hold that a absent foundational justified sending have would the issue of showing of relationship a pre- between the punitive Therefore, damages jury. to the cluded ability evidence and her to physical- we find no abuse discretion the trial heal, ly the trial court did not abuse its denying court’s decision request Kostel’s discretion. punitive damages. instruction on respect 99.] With [¶ to related mat- 92.] Affirmed. [¶ ter privilege, suggestion Court’s history some of Kostel’s may have by been excluded the therapist-patient Justice, MEIERHENRY, [¶ 93.] should, view, privilege in my be nar- read HOFFMAN, Judge, Circuit concur. ¶ rowly. supra agree See 81. I that be- prove cause Schwartz failed to ZINTER, Justice, and [¶ 94.] Kostel’s mental health history rele- was WILBUR, Judge, specially. Circuit concur to liability,

vant it protected by was WILBUR, Judge, sitting Circuit privilege respect with to that issue. See Justice, SABERS, disqualified. (only SDCL 19-13-11 requiring a waiver Although complains Dr. Schwartz that he medical on evidence this issue re- pursue was not able to some mental health significant flected that mental health issues statement, history opening issues he raised in may complicated make it more or to difficult informing jury evidentiary that certain mat- patient. treat produced always will subject ters be to subsequent admissibility determinations the trial court. to history health was irrelevant privilege when the mental therapist-patient of the claim,32 is mistaken because narrow she to an issue of is relevant the non-physical record reflects that condition or emotional mental physical, enjoyment of aspects of her loss of life patient any proceeding an have caused or exacerbat- claim could been the condition upon relies patient defense); problems.33 her mental health SDCL ed of her claim element Therefore, some Kostel’s mental health (only a waiver of requiring 19-2-3 history relevant and admissible with or mental was physical when the privilege issue). inability enjoy to respect to her claimed any person is in Because health of not life. See id. history was mental health Kostel’s to ability her be relevant to shown to recognized the 101.] The trial court heal, may privi- been it have physically relevancy of this evidence the- issue of liability. Never- leged31 respect with damages, carefully por- excluded those but theless, it my view was admissible history that tions of Kostel’s were irrele- issue damage it was relevant extent overly prejudicial. example, For vant Heeren, Maynard below. See discussed explained the court on numerous occasions ¶ 60, 11, 563 834-35 SD history allowing if the emotional (concluding that even anxiety as depression and relevant plaintiff of a is not element mental state life, enjoyment loss of but the claimed action, mental causes of plaintiffs blackouts, did not allow evidence of court when relevant condition is privileged suicide, syndrome, post-traumatic stress damages). question multiple personality disorders re- Thus, to childhood abuse.34 respect damages, Kos- lated sex With hospital- evidence of Kostel’s compensated for loss of court allowed sought tel to be reflecting lengthy history of de- physical dis- izations a enjoyment of life due her anxiety, and one of which re- pression treat- caused Schwartz’s abilities depression, severe her flected recurrent and Kostel claimed that Although ment. enjoyment of of life is limited appear for claim for loss Privilege not lo be basis does decision, solely physical effects of defendants' not and trial court’s view, regard- questioning alleged malpractice, then appeal. Consequently, my briefed on be im- ing plaintiff's state would dictum. mental discussion this issue is Court's cases, ¶ supra proper). 83. Unlike those See enjoyment of life claim for loss of Kostel’s pleaded dropped her claims 32. Kostel physical solely was not effects limited anguish. Dr. and mental emotional distress surgery. She claimed that as result Kostel's reflecting did offer evidence effects, physical she was unable to of those portions men- of Kostel's that the disallowed family enjoying ac- have "fun” recreation credibility by history her tal affected health Therefore, ¶ supra like our tivities. See illuminating powers perception and her history Maynard, de- decision in accuracy. testify ability to with anxiety on the pression was admissible Maynard, SD damage claim. See mistakenly v. relies on Garbacik 33. The Court ¶ 563 N.W.2d at 834-35. LLC, 500, 504 Transp., 932 So.2d Wal-Mart (stating that the mere (Fla.Dist.Ct.App.2006) life, proffered was re- evidence enjoyment without 34.Some allusion loss of also more, The court determined mote time. place the mental or emotional does not pro- did not literature Dr. Schwartz’s medical plaintiff at issue so as condition of the necessary under Dau- causative link privilege) v. vide and Mora waive the medical neurosurgeon testi- 702 to allow Ctr. New bert Rule Catholic Med. Saint Vincent's multiple York, mony respect suicide and with 8 Misc.3d 800 N.Y.S.2d (2005) (stating plaintiff's personality disorders. in the event the attacks, despondency, panic psychotropic

drug depressed mood prescriptions, difficulties with with variable concentra- tion, sleep, appetite. Another exam- ple of admitted included a 1998

hospitalization progressively worsening

depression, major classified “recurrent

depression, Considering the evi- severe.” allowed, the overly prejudi-

dence that was evidence, cial of the excluded effect lack of foundation on the excluded evi-

dence, and this Court’s deferential stan- review,

dard trial court did not excluding abuse discretion in its some of history. Kostel’s mental health WILBUR, joins Circuit Judge, this special writing.

2008 SD STEINMETZ, Appellant, F. Lewis Dakota, STATE of South DOC ACADEMY, STAR Dakota, of South State Bureau Personnel, Appellees. 24680. No. Supreme Court of South Dakota.

Argued April Sept. Decided

Case Details

Case Name: Kostel v. Schwartz

Court Name: South Dakota Supreme Court

Date Published: Aug 20, 2008

Citation: 756 N.W.2d 363

Docket Number: 24244, 24254

Court Abbreviation: S.D.