[¶ 1.] In this mеdical malpractice appeal, plaintiff contends that the circuit court erred in giving the jury an “error in judgment” instruction and in other respects. We affirm in part, reverse in part, and remand for a new trial.
Background
[¶ 2.] On September 3, 2002, Adeline Papke, age seventy, was outside watering her flowers when her left knee gave out and she fell. She was unable to get up on her own and was taken to the emergency room at Avera St. Luke’s Hospital in Aberdeen, South Dakota. At the hospital, Papke reported a history of degenerative joint disease in both knees. The emergency room physician admitted her and contacted Dr. Thomas Harbert, an orthopedic surgeon, for further evaluation.
[¶ 3.] Dr. Harbert examined Papke and recommended simultaneous bilateral total knee replacement. On October 7, 2002, Dr. Harbert and his partner, Dr. Mark Harlow, performed the dual knee surgeries. Dr. Harbert operated on Papke’s right knee, while Dr. Harlow operated on her left. Three days after her surgery, her right knee dislocated. Dr. Harbert reset the knee. She was still complaining of pain, however, and, on October 16, 2002, she was admitted for inpatient physical therapy. On October 17, 2002, her right knee again dislocated. This time, after resetting her knee, Dr. Harbert applied a cast to her right leg, which extended from her thigh down to her toes. He also scheduled revision surgery for her right knee for November 8, 2002.
*513 [¶ 4.] On October 25, 2002, Papke was discharged from Avera and was admitted to a nursing home to await her surgery. She was readmitted to Avera on November 8, 2002, at which time it was discovered that her left knee was dislocated. The surgery was postponed, and her left knee was placed in proper alignment. Her left leg was also placed in a cast from her thigh down to her toes. She returned to the nursing home on November 9, 2002. On November 22, 2002, she went back to Avera for revision surgery on both knees. Dr. Harbert and Dr. Harlow performed the surgeries. Thereafter, she remained in the hospital.
[¶ 5.] On December 2, 2002, Papke returned to the nursing home. The same day, the nursing home staff documented the presence of multiple “stage 4 pressure ulcers” on her right and left heels. On December 3, the nursing home took pictures of the sores and contacted Dr. Warren Redmond, a dermatologist, who attempted to treat her. Dr. Russell Pietz, Papke’s primary care physician, also treated her while she was in the nursing home. Her knee surgeon, Dr. Harbert, saw her again on December 16, 2002. During that visit, he noted his concern regarding her skin ulcerations. He also noted the presence of “black eschar” in the same area as the ulcerations. As a result of the “increased ulceration of her feet and continued problems” Dr. Harbert brought in Dr. Bryce Iwerks, a surgeon with experience in “vascular studies and examination of the lower extremity[.]”
[¶ 6.] On December 18, 2002, Dr. Iwerks diagnosed Papke with “[ojbvious peripheral vascular disease.” His plan, according to his treatment notes, was to “further evaluate with ultrasound and MRA and [provide] [flurther recommendations pending results.” Dr. Harbert met with Papke on December 30. In his treatment notes, he indicated that based on his consultation with Dr. Iwerks, he would discuss with Papke her “treatment options[,] that being vascular bypass surgery v. amputation of the left lower extremity.”
[¶ 7.] On January 14, 2003, Papke was admitted to the Heart Hospital of South Dakota in Sioux Falls for treatment of her ulcerations. According to her admitting physician, Dr. Felipe Navarro, because of the severity of her condition, he feared that she would lose her left leg. He proposed to assess her situation and provide her with some pain medications to keep her comfortable. She was treated at the Heart Hospital until January 18, 2003, when she was discharged to Avera McKen-nan in Sioux Falls. Her ulcerations were not healing, and, on February 8, 2003, Dr. Robert Suga amputated her left leg above the knee. Thereafter, she continued to receive treatment on her right leg. However, on April 17, 2003, her right leg was also amputated above the knee. After recovering from her surgery, she returned to the nursing home.
[¶ 8.] On January 31, 2005, Papke brought suit against Dr. Harbert, Dr. Harlow, and Aberdeen Orthopedics & Sports Medicine (defendants), alleging medical malpractice. She averred that her medical treatment fell below the standard of care, resulting in her “gangrenous condition and double amputation.” According to Papke, “defendants violated the standard of care when performing the initial surgery by failing to perform a vascular examination and leaving the tissues in the knee weak and globally unstable.” Secondly, she asserted that “defendants misdiagnosed [her] vascular insufficiency following her first surgery and failed to consult a vascular specialist in order to address the worsening problem.” She alleged that if defendants had referred her “to a vascular specialist when they removed the casts оn *514 her legs immediately prior to the second surgery and discovered the large black sores” her legs might still have been saved.
[¶ 9.] A jury trial was held in January 2006. At the settling of instructions, Pap-ke objected to the court’s instruction that stated, “A physician is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful. The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.” (Emphasis added). According to Papke, the instruction erroneously and unnecessarily supplanted the applicable standard of care. Defendants responded that the instruction was proper based on established case law. This instruction, they argued, would give them “the right to present to the jury [their] theory of the case.” They explained that the concept of mistake in judgment was “heard from most of the witnesses who have testified,” and what happened here “was a judgment call, and this jury instruction is vital to our theory of the case.” The court overruled Papke’s objection, concluding that the instruction accurately reflected the state of the law in South Dakota.
[¶ 10.] During closing arguments, defendants drew the jury’s attention to the error in judgment instruction, stating,
So things were going along as Dr. Har-bert thought they would. Unfortunately, as we know he was wrong.... But that did not, ... make him negligent and mean that he breached the standard of care. The instructions clearly say that an error in judgment does not necessarily amount to negligence. And doctors have to make a lot of tough calls. They make judgment calls, and that’s what happened here. And in retrospect, yeah, it wаs wrong; but it’s not negligent.
[¶ 11.] At the close of the case, the jury returned a verdict for defendants. Papke moved for a new trial on three grounds. First, she asserted that jury instruction 16, “absolving the defendants of negligence for an ‘error of judgment’ was misleading, confusing, and prejudicial.” 1 Second, she alleged that “she was unfairly prejudiced by the admission of previously undisclosed expert testimony.” Third, she “contended that even if the expert testimony in question had been properly disclosed she was further unfairly prejudiced by its admission because it was unreliable and lacked scientific foundation.” After a hearing, the circuit court denied Papke’s motion.
[¶ 12.] Papke appeals asserting that the trial court- erred when it (1) gave jury instruction 16; (2) admitted previously undisclosed expert testimony on the issue of causation; and (3) admitted scientifically unreliable expert testimony on the issue of causation. Defendants filed a notice of review alleging that the court erred when it (1) allowed Papke to enter into evidence the amount charged for her medical expenses rather than the amount actually paid by Medicare and Medicaid; and (2) denied defendants’ motion to compel production of a report reviewed by Papke’s expert. We affirm in part, reverse in part, and remand.
Standard of Review
[¶ 13.] We recently clarified our standard of review on jury instructions in
Vetter v. Cam Wal Elec. Coop., Inc.,
*515
A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard.
See Luke v. Deal,
Id.
(internal footnote omitted). A circuit court’s admission of expert testimony falls within its broad discretion and is reviewed under the abuse of discretion standard.
In re Estate of Dokken,
Analysis and Decision
1. Jury Instruction on Error in Judgment
[¶ 14.] Because the theory of Papke’s case was that defendants were negligent in failing to refer her to a specialist, the court gave the jury the following instruction:
It is the duty of a physician to refer a patient to a specialist or recommend the assistance of a specialist if, under the circumstances, a reasonably careful and skillful physician would do so.
If the physician fails to perform that duty and undertakes to or continues to perform professional services without the aid of a specialist, it is a further duty to exercise the care and skill ordinarily used by specialists in good standing in the same field of specialization in the United States and under similar circumstances.
The court also instructed the jury on the applicable standard of care for a specialist:
In performing professional services for a patient, a specialist in a particular field of medicine has the duty to possess that degree of knowledge and skill ordinarily possessed by physicians of good standing engaged in the same field of specialization in the United States.
A specialist also has the duty to use that care and skill ordinarily exercised under similar circumstances by physicians in good standing engaged in the same field of specialization in the United States and to be diligent in an effort to accomplish the purpose for which the physician is employed.
A failure to perform any such duty is negligence.
Instruction 16, the one challenged in this appeal, stated,
*516 A physician is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful.
The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties as defined in these instructions.
(Emphasis added). The jury was also instructed that “[t]he fact that an unfortunate or bad condition resulted to the patient does not alone prove” negligence.
[¶ 15.] Papke argues that the court’s instructions on the “standard of care fully and accurately apprised the jury of the applicable law,” and jury instruction 16, absolving defendants of negligence for an error in judgment, is an erroneous statement of the law. This instruction, she contends, unnecessarily supplants and dilutes the other standard of care instructions. Further, she believes the instruction is confusing and misleading, and injects a subjective element in what is clearly an objective standard of care for medical professionals. Papke asserts that because defendants’ theory of the case focused on the error in judgment language and how defendants did not commit mаlpractice, but only erred in judgment, she was prejudiced by the instruction, warranting reversal and a new trial.
[¶ 16.] Defendants, on the other hand, assert that jury instruction 16 is a correct statement of the law because it was taken from “South Dakota Pattern Jury Instruction 105-01(C).” Defendants cite
Shamburger v. Behrens,
[¶ 17.] In
Shamburger,
the challenged instruction absolved the defendant of liability for a “good faith error of judgment.”
“[T]o use such a phrase in. a charge upon negligence serves only to confuse the jury by implying that only an error of judgment made in bad faith can be actionable. The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of reasonable care, not his mental state at the time of the conduce]”
Id.
(quoting
Logan v. Greenwich Hosp. Ass’n,
[¶ 18.] The same year, in
Magbuhat,
we examined the phrase “bona fide error in judgment.”
The issue on which the jury should be instructed in a medical malpractice action is whether the doctor deviated from the required standard of care. That deviation is not conditioned on bad faith or the physician’s state of mind at the time of the alleged negligence.
Id. Therefore, we declared the “bona fide error in judgment” instruction was also improper. Id.
[¶ 19.] Shamburger and Magbuhat make clear that medical malpractice jury instructions that contain the phrases “bona fide” or “good faith” are improper. However, we have never decided whether the use of “error in judgment” or similar language, not in conjunction with the terms “good faith” or “bona fide,” would also be erroneous. Today, we address the question whether use of error in judgment or similar language is contrary to South Dakota law.
[¶ 20.] Papke directs us to cases from other jurisdictions that have held that use of error in judgment or any similar language is inappropriate. Defendants, in turn, cite cases that hold such language is proper in medical malpractice actions. In examining out-of-state jurisprudence on the issue, we note that not all error in judgment instructions are phrased identically. However, as stated in
Parodi v. Washoe Medical Center, Inc.,
“any instruction specifying nonliability for certain errors in judgment, or the applicability of 'honest’ or ‘best’ judgment, may fall under the rubric of ‘error-in-judgment.’ ”
[¶ 21.] It аppears that there are essentially three prevailing views. Some courts categorically disallow the use of error in judgment or similar language in all circumstances. 2 Others only allow the language if it is first determined that an evidentiary basis exists to do so, depending on the particular facts of the case. 3 The remaining courts permit the use of error in judgment or similar language, as long as the instruction does not contain terms such as “good faith” or “bona fide.” 4
A. “Error in Judgment” Instruction Improper
[¶ 22.] We begin our analysis with those decisions that have declared the use of error in judgment or similar language improper in jury instructions for any medi
*518
cal malpractice case. In
Rogers,
[¶23.] The
Rogers
court noted that multiple jurisdictions have disapproved of the instruction, either partly or entirely.
Id.
at 932 (citing
Logan,
[¶ 24.] In specific regard to the use of the phrase “error of judgment,” the court declared that it
makes it appear that some types of negligence are not culpable. It is confusing to say that a doctor who has acted with reasonable care has nevertheless committed an error of judgment because untoward results occur. In fact, bad results notwithstanding, if the doctor did not breach the standard of care, he or she by definition has committed no error of judgment.”
Id. (first emphasis in original) (remaining emphasis added). According to the court, “[t]he source of the problem is the use of the word ‘error.’ ” Id. This is because “error” by definition could lead a jury to conclude that “a judgment resulting from an ‘ignorant or imprudent deviation from a code of behavior’ is not a breach of the standard of care.” Id. (quoting Webster’s Third New International Dictionary 772 (unabridged 1971)). Moreover, the court opined that “[i]f the term ‘judgment’ refers to choices between acceptable courses of treatment, then the term ‘error in judgment’ is a contradiction in itself [and using] any acceptable alternative would not be an ‘error.’” Id. Thus, the court held that error in judgment or any similar language would no longer be permitted in Oregon medical malpractice actions.
[¶ 25.] Relying on the Oregon Supreme Court’s rationale in
Rogers,
the Hawaii Supreme Court held that “any jury instruction that states that a physician is not
*519
necessarily liable for an ‘error in judgmеnt’ is confusing and misleading and should not be given to the jury.”
Hirahara,
[¶26.] The Iowa Supreme Court also disapproved of an instruction that informed the jury that “[a]n unsuccessful effort, mistake, or error in judgment by a physician is not necessarily negligence but is a circumstance to be considered.”
Peters,
[T]he defendant cannot be found negligent merely because of a mistake in the treatment of his patients. Any error in treatment, if you find any, does not in and of itself constitute negligence. For the defendant to be found negligent, it must be shown by a preponderance of the evidence that the defendant, in treating the patient’s condition, failed to use the degree of skill, care and learning ordinarily possessed and exercised by other general family practitioners in similar circumstances, as explained to you in Instruction No. 13.
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[T]he defendant cannot be found negligent merely because of a mistake in the diagnosis of his patients. Any error in diagnosis, if you find any, does not in and of itself constitute negligence. For the defendant to be found negligent, it must be shown by a preponderance of the evidence that the defendant in diagnosing the patient’s condition, failed to use the degree of skill, care and learning ordinarily possessed and exercised by other general family practitioners in similar circumstances, as explained to you in Instruction No. 13.
Id.
at 712. These instructions, the court held, “are not statements of the law that determine a physician’s duty of care.”
Id.
Rather, “[t]hey are comments on potential factual scenarios in which the standard of care may or may not have been adhered to [and] amount to comments on the evidence, which were determined in
Hutchinson [v. Broadlawns Medical Center,
[¶ 27.] The West Virginia Court of Appeals was asked to decide whether use of the “multiple methods of treatment” or “mistake in judgment” instructions were permitted.
Yates,
[¶ 28.] However, according to the court, the mistake in judgment instruction was improрer, because the West Virginia Supreme Court had already disapproved of the use of “error in judgment.”
Id.
at 690 (citing
Pleasants v. Alliance Corp.,
[¶ 29.] The Connecticut Supreme Court first examined the use of “bona fide error in judgment” in
Logan,
where it noted that in the past use of bona fide or other similar language had been acceptable.
[¶ 30.] Then in
Sleavin,
[¶ 31.] According to the Vermont Supreme Court, the original intent of the best judgment or error in judgment instruction — to inform the jury “that a doctor may choosе among several proper alternatives, even though the one chosen leads to an unfortunate result — is not self-evident.”
Rooney,
[¶ 32.] The Nevada Supreme Court, in reviewing whether an error of judgment or best judgment instruction was proper, recognized that the instruction derived from California.
Parodi,
[¶ 33.] In
Day,
the Mississippi Supreme Court held that use of mere error of judgment language has no place in medical malpractice actions.
[¶ 34.] The Mississippi court then explained that just because an instruction does not use the word “error,” the use of “judgment” in connection with other words can nevertheless lead to a subjective jury instruction.
Bickham,
[¶ 35.] Finally, the Alabama Supreme Court in
Jefferson Clinic, P.C.,
B. “Error in Judgment” Instruction Proper in Limited Circumstances
[¶ 36.] We next review the rationale of those jurisdictions that allow the use of an
*522
error in judgment or similar instruction, provided that there exists an evidentiary-basis to do so. The plaintiffs in
Ouellette,
If there are two methods of treatment for a particular medical condition, both accepted by the medical profession, then it is a matter of professional opinion or judgment which is best, and the doctor’s choice of either is, ordinarily, not negligence.
Id. (emphasis added). Yet, the court, thereafter, held that the honest error in judgment language is inappropriate. The court instead proposed its own language for how a jury should be instructed in a medical malpractice action. 9 Id. at 816.
[¶ 37.] The Wyoming Supreme Court acknowledged that a physician is subject to the “standard of reasonable care.”
Kobos,
[¶ 38.] Similarly, in
Nestorowich,
appropriate in instances where parties present evidence of a choice between or among medically acceptable alternatives or diagnoses. Absent a showing that “defendant physician considered and chose among several medically acceptable alternatives” the error in judgment charge has been found inappropriate.
Id. at 129 (emphasis added) (internal citations omitted). The court wrote,
This limited application of the error in judgment charge preserves the established standard of care. Broader appli *523 cation of the charge would transform it from a protection against second-guessing of genuine exercises of professional judgment in treatment or diagnosis into a cloak for professional misfeasance. The doctrine was intended to protect those medical professionals who, in exercising due care, choose from two or more responsible and medically acceptable approaches. A distinction must therefore be made between an “error in judgment” and a doctor’s failure to exercise his or her best judgment. Giving the “error in judgment” charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability.
Id. at 129. The facts of Nestorowich, however, were not “based on an alleged error of judgment” and the plaintiffs did not “urge that defendant’s mistake was an ‘error of judgment’ occasioned by a choice between two or more medically acceptable treatment alternatives.” Id. at 130. Therefore, the court held that the instruction was improper. Id.
[¶39.] The Arizona Court of Appeals similarly allowed an instruction that used the “error in judgment” or “two schools of thought” language.
Borja,
[¶40.] New Jersey does not employ the precise error in judgment language in its jury instructions; however, in
Das,
*524
[¶41.] In 2003, the Pennsylvania Supreme Court examined whether it was proper for the lower court to grant a new trial because the court provided a mere error in judgment instruction.
Vallone,
[¶ 42.] In North Dakota, the Supreme Court held that because there was evidence that the physician had to choose between one of several treatment alternatives, the error in judgment instruction was proper.
Patterson,
[¶ 43.] Lastly, in
Francoeur,
C. “Error in Judgment” Instruction Proper
[¶ 44.] We now examine the rationale of those jurisdictions that have adopted the third view — allowing the use of error in judgment or similar language in a medical malpractice action. In
Ezell,
[¶ 45.] The Rhode Island Supreme Court stated that “as long as a physician exercises the applicable degree of care, he or she may choose between differing but accepted methods of treatment and not be held liable.”
DiFranco,
[¶ 46.] Lastly, California explicitly allows the use of an error in judgment instruction.
Fraijo v. Hartland Hosp.,
[a] physician is not necessarily negligent because [he][or][she] errs in judgment or because [his][or][her] efforts prove unsuccessful. The physician is negligent if the error in judgment or *526 lack of success is due to a failure to perform any of the duties as defined in these instructions.
California Civil Jury Instructions (BAJI 6.02 “Medical Perfection Not Required”) (emphasis added).
D. “Error in Judgment” in South Dakota Should Be Limited
[¶ 47.] Although we have examined the three general views adopted on this issue, there are also multiple jurisdictions that have settled on a position that does not clearly fit within one of these three categories.
See Somer v. Johnson,
[¶ 48.] Because a physician’s standard of care is no different than that of other professionals, the concerns we expressed in
Shamburger
and
Magbuhat
will not be alleviated if we approve the use of error in judgment or. similar language in jury instructions. It is misleading to instruct a jury that physicians are not negligent when they make an error in judgment. As multiple courts have recognized, if the physician did not breach the applicable standard of care, then he or she by definition has not committed an error in judgment.
See Rogers,
[¶ 49.] While the original intent of the instruction was to inform the jury that a doctor exercises medical judgment when treating a patient, and poor results would not necessarily mean negligence, that intent is not explained with the use of error in judgment or similar language. By using the term error in judgment; a jury could reasonably find a physician not liable in instances where that physician discloses that in hindsight, yes, he or she made a mistake, but that it was only an error in judgment. This is not the standard of care physicians are held to in South Dakota. 14
[¶ 50.] Because error in judgment or any similar language in no way further defines or explains the applicable standard of care to the jury, we hold that such language should not be used in ordinary medical mаlpractice actions.
15
This, however, does not end our inquiry. Even though jury instruction 16 was erroneous, for it to constitute reversible error, Papke must establish that the instruction was prejudicial.
See Vetter,
*528 [¶ 51.] Papke contends that because the defendants centered their defense on the error in judgment language, she was prejudiced by the instruction. Indeed, defense counsel told the court during settlement of jury instructions that the error in judgment instruction was critical to their case. In closing argument, defense counsel drew the jury’s attention to this instruction:
So things were going along as Dr. Har-bert thought they would. Unfortunately, as we know, he was wrong. And as he admitted, his' diagnosis of them being pressure sores, something that would heal up, was wrong. But that did not, ... make him negligent and mean that he has breached the standard of care.
The instructions clearly say that an error in judgment does not necessarily amount to negligence. And doctors have to make a lot of tough calls. They make judgment calls, and that’s what happened here. And in retrospect, yeah, it was wrong; but it’s not negligent.
According to Papke, the instruction “appeared to absolve the defendants of any potential negligence even where, as in this case, the defendants admitted to misdiagnosing [her] condition.” Therefore, she claims that this “in all probability affected the jury’s application of the standard of care in this case,” warranting a new trial.
[¶ 52.] We review the “instructions as a whole to learn if they provide a full and correct statement of the lаw.”
Id.
¶ 10 (quoting
First Premier Bank,
2. Previously Undisclosed Expert Testimony
[¶53.] Papke next argues that the court erred when it admitted previously undisclosed expert testimony on the issue of causation. Defendants’ expert, Dr. Devon Goetz, testified at trial that on November 22, 2002, Papke had a greater than fifty percent chance that she would have lost both her legs even if defendants had properly diagnosed her condition. This opinion on causation, Papke contends, was not disclosed to her until the morning Dr. Goetz testified. Therefore, she asserts that she “was unable to conduct any investigation, prepare any effective cross examination, or retain an expert to disprove or counter that testimony in rebuttal.”
[¶ 54.] Defendants, however, insist that based on “the equities” in this case, Dr. Goetz’s opinion was properly allowed. 16 Defendants claim that on Sep *529 tember 25, 2005, Papke had sent a late disclosure of her expert’s intended opinions and the court remedied this by allowing defendants the opportunity to depose Dr. Michael Holte. Because the court permitted Papke a similar opportunity to depose Dr. Goetz after the late disclosure and allowed her an opportunity for a continuance, the late disclosure was remedied. Defendants further assert that for the expert testimony to be excluded, Papke must establish that there was willfulness or bad faith on the part of defendants and the lack of bad faith is conceded by Papke. Therefore, defendants assert that there was no unfair prejudice to Papke and the testimony was properly allowed.
[¶ 55.] We recently addressed this issue in
Kaiser v. Univ. Physicians Clinic,
[¶ 56.] In
Kaiser,
we noted three areas of concern: (1) the time elemеnt and whether there was bad faith by the party required to supplement; (2) whether the expert testimony or evidence pertained to a crucial .issue; and (3) whether the expert testimony differed substantially from what was disclosed in the discovery process.
Id.
¶ 35 (citations omitted). We also recognized that SDCL 15-6-26(e) is modeled after Federal Rule 26(e) and focused on certain federal cases, which “have found reversible error when testimony is admitted without prior disclosure pursuant to Rule 26.”
Id.
¶ 38 (citing
Smith v. Ford Motor Co.,
[¶ 57.] Here, as in Kaiser, all three areas of concern are present. See id. ¶ 35 (citations omitted). Dr. Goetz’s opinion on causation was not disclosed during the discovery process. Not until the morning of his testimony was Papke notified that he even held an opinion on causation. In Kaiser, the expert expressed an opinion during the discovery process, but then in *530 trial used new evidence to support that opinion, evidence that was untimely submitted. See id. ¶ 20. Here, Dr. Goetz gave no opinion on causation during the discovery process. His late revelation is more troubling than the one in Kaiser. See id. ¶ 35. Secondly, the issue of causation went to the heart of Papke’s case, as she had to prove that defendants’ conduct proximately or legally caused her injuries. Thus, the testimony pertained “to a crucial issue.” See id. Finally, because Dr. Goetz did not have an opinion on causation during his deposition, and then expressed an opinion on causation at trial, his testimony differed substantially. See id.
[¶ 58.] Although Papke was given an opportunity to depose Dr. Goetz immеdiately before his testimony at trial, this remedy conflicted with the purpose of SDCL 15 — 6—26(e). As we stated in
Kaiser,
the purpose of SDCL 15 — 6—26(e) is to provide all parties the opportunity to know the facts before trial.
3. Submission of Medical Expenses
[¶ 59.] By notice of review, defendants contend that a plaintiffs right to recover the “reasonable value” of medical services as a measure of damages does not include amounts “written off’ by the medical care provider because of a contractual agreement between the provider and Medicare and Medicaid. Papke was billed $429,531.28 for her medical care. Medicare paid $79,411.72, and Medicaid paid $133,874.03. The remaining $216,874.03 was written off and will never be paid by anyone. Because neither Papke, nor anyone else, will ever be required to pay the amount written off, defendants assert that Papke should only be able to recover the amount that was actually paid for her medical services. Papke, on the оther hand, argues that she is entitled to recover the “reasonable value” of her medical services as damages, notwithstanding what amount was actually charged or paid. Furthermore, relying on the collateral source rule, she contends that defendants are prohibited from offering in evidence the portion of her medical bills that were written off.
[¶ 60.] Whether a plaintiff in a medical malpractice case is entitled to recover the amount written off by a medical care provider because of a contractual agreement between the provider and Medicare or Medicaid has never been addressed by this Court. We have, however, examined whether a plaintiff is entitled to recover damages for the amount of medical services gratuitously provided.
Degen v. Bayman,
[¶ 61.] In
Degen,
the plaintiff received $13,490 in free care from the Shriners Hospital, which amount would never become due and owing against the plaintiff.
Id.
at 410,
[¶ 62.] We used the collateral source rule based on our holding in
Moore v. Kluthe & Lane Ins. Agency, Inc.,
[¶ 63.] Believing the “rule and the rationale behind it” were sound, the Court in
Degen
held that “a plaintiff who has been injured by the tortious conduct of the defendant is entitled to recover the reasonable value of medical and nursing sendees reasonably required by the injury. This is a recovery for their value and not for the expenditures actually made or obligations incurred.”
Id.
at 410,
[¶ 64.] The Legislature, through two statutes, has chosen to put medical malpractice damages in a special category. First, in SDCL 21-3-11, the total general damages that can be awarded to a plaintiff in a medical malpractice action has been limited to five hundred thousand dоllars. Second, contrary to the collateral source rule, in a medical malpractice action, where a plaintiff seeks an award of special damages, the Legislature has made admissible evidence that “is relevant to prove that any such special damages were paid for or are payable by, in whole or in part, insurance which is not subject to subrogation and which was not purchased privately, in whole or part ... or were paid for, or are payable by, in whole or in part, state or federal governmental programs not subject to subrogation.” SDCL 21-3-12.
[¶ 65.] In
Knowles v. United States,
we observed that by treating medical malpractice differently, the Legislature calculated that malpractice insurance rates would be reduced, thereby lowering the cost of health care to all citizens.
[¶ 66.] Even though today’s case is examined solely within the realm of medical malpractice, decisions outside the area of medical malpractice are instructive. Essentially, whether write offs should be recoverable implicates two concepts — the collateral source rule (when allowing recovery) and the notion that the object of a compensatory damage award is to make an injured party whole (in prohibiting recovery).
[¶ 67.] For those jurisdictions that have allowed recovery based on the collateral source rule, the courts have focused on the two purposes of the rule — one as a rule of evidence and the other as a rule of damages.
Bozeman v. State,
[¶ 68.] Applied as a rule of evidence, the collateral source rule prohibits defendants from offering proof of collateral source benefits received by the plaintiff, independent of the tortfeasor, which compensate the plaintiff, in whole or in part, for his or her injury.
Calva-Cerqueira v. United States,
[¶ 69.] Applied as a rule of damages, the collateral source rule prohibits defendants from reducing their liability because of payments made to the plaintiff by independent sources.
Bynum v. Magno,
*533
[¶70.] Also, while it has been recognized that at times the collateral source rule can produce a windfall for a plaintiff, courts have held that if a windfall occurs, it is better that the innocent plaintiff receive it than the guilty wrongdoer.
Bynum,
[¶ 71.] Courts have also relied on the Restаtement (Second) of Torts when deciding whether the reasonable value of medical services provided equals the amounts paid. 18 Restatement (Second) of Torts § 920A (entitled “Effect of Payments to Injured Party”). Under the Restatement, “Payments made to or benefits conferred on the injured party from other sources are not credited against the tort-feasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” Id. § 902A(2). The comments to the Restatement explain that “it is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become, a windfall for the tortfeasor.” Id. § 920A cmt b. The comment continues, “If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers.” Id. This is because “[t]he law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him.” 19 Id.
[¶ 72.] In accordance with the intent of the collateral source rule and section 920A of the Restatement (Second) of Torts, multiple courts have further held that write offs are akin to gratuitous payments or are a benefit contracted for by the plaintiff through insurance coverage and are therefore recoverable.
20
The Kansas Supreme Court, in particular, compared Medicare to private insurance because “Medicare benefits are purchased by payroll deductions[.]”
21
Rose,
[¶ 73.] Other courts, however, have denied recovery of write offs because the object of a damage award is to compensate the plaintiff only to the full extent of the plaintiffs injuries.
Hanif,
[¶ 74.] Some courts also have denied a plaintiff recovery of amounts written off because a write off is not a “payment” received by a source independent of the tortfeasor, and, therefore, not a collateral source.
Chapman v. Mazda Motor of America, Inc.,
[¶ 75.] Two frequently cited cases for denying a plaintiff recovery for write offs are
Hanif,
[¶ 76.] In reaching this conclusion, the California court relied on the Restatement (Second) of Torts. It did not use section 920A, but instead, drew its support from section 911, entitled, “Value.” It cited comment h in section 911, which exрlains what constitutes the “value of services rendered.” Hanif emphasized a portion of the comment,
When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, hoivever, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.
[¶ 77.] Similarly, in
Moorhead,
the Pennsylvania Supreme Court relied on Restatement (Second) of Torts section 911 comment h and held that the amount accepted as full payment for the medical services was the amount the plaintiff could recover.
[¶ 78.] In South Dakota, it is well settled thаt plaintiffs are entitled to recover the reasonable value of their medical services, and what constitutes a reasonable value for those services is a jury question. We think it unwise for us to make a broad declaration that the reasonable value of medical services equals the amount paid, not the amount billed.
See Hanif,
[¶79.] Nevertheless, when establishing the reasonable value of medical services, defendants in South Dakota are currently prohibited from introducing evidence that a plaintiffs award should be reduced because of a benefit received wholly independent of the defendants.
See Degen,
[¶80.] Although the collateral source rule has a common law origin, and we have consistently applied the rule in a variety of tort cases, our Legislature has intervened to partially limit its scope with respect to medical malpractice “special” damages. 23 See SDCL 21-3-12. Neither side argues that this statute has any applicability to this case. We think it prudent, therefore, as it applies to medical malpractice, to leave any further rule changes to the Legislature. Thus, in this ease, the collateral source rule applies and defendants are precluded from entering into evidence the amounts “written off’ by medical care providers because of contractual agreements with sources independent of defendants.
5. Motion to Compel Production
[¶ 81.] Defendants raise one last issue by notice of review. They argue that the court erred when it denied their motion to compel production of a report reviewed by plaintiffs expert. Plaintiffs expert, Dr. Holte, was given a report from a non-testifying expert for the plaintiff. According to defendants, Dr. Holte relied on this report in forming his opinion, and therefore, the report is discoverable under SDCL 15-6-26. The circuit court denied defendants’ motion to compel production of the report. Because the court’s decision pertains to an evidentiary issue, it is reviewed under the abuse of discretion standard.
See Steffen,
[¶ 82.] Although a non-testifying expert’s opinion is generally not discoverable, a report authored by that expert loses its “protective status” when a testifying expert relies on that report in forming an opinion.
Kuper v. Lincoln-Union Elec. Co.,
[¶ 83.] It is insufficient to declare that just because Dr. Holte reviewed the non-testifying expert’s report, the report is discoverable. Rather, defendants must prove that Dr. Holte relied on the report in forming his opinion, or, under SDCL 15 — 6—26(b)(4)(B), that there are “exceptional circumstances” demonstrating that “it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” The circuit court held that Dr. Holte did not rely on the non-testifying expert’s report in formulating his opinion. We see no reason to disagree with the court’s conclusion. Considering that defendants do not allege that exceptional circumstances exist, the court did not abuse its discretion in denying defendants’ motion to compel.
[¶ 84.] Affirmed in part, reversed in part, and remanded.
Notes
. The appellant's briefs incorrectly refer to jury instruction 19, but the correct instruction number is 16.
. Jefferson Clinic, P.C. v. Roberson,
.
Borja v. Phoenix General Hosp., Inc.,
.
Rainer v. Cmty. Mem’l Hosp.,
. In 1984, use of the phrase “good faith” along with the error of judgment instruction was invalidated because " 'good faith' in the instruction confused matters and had no place in an action for ordinary medical negligence.”
Id.
at 932 (citing
Ellis
v.
Springfield Women's Clinic, P.C.,
.The instruction states,
A doctor is not negligent if he selects one of several or more approved methods of treatment within the standard of care. In other words, if there is more than one generally recognized method of diagnosis or treatment and no one method is used exclusively or uniformly by all physicians, a physician is not negligent if, in the exercise of his medical judgment, he selects one of the approved methods within the standard of care-even if you believe in retrospect that the alternative chosen may not have been the best method of treatment-as long as he utilizes that method of treatment in a non-negligent manner as otherwise instructed by the Court.
Id.
. In
Pleasants,
the court found the instruction to be erroneous, but did not reverse because it concluded that the error was harmless.
. The court did, however, review the instructions as a whole and determined that the erroneous instructions were harmless.
. The court’s proposed instruction stated,
A doctor is not negligent simply because his or her efforts prove unsuccessful. The fact a doctor may have chosen a method of treatment that later proves to be unsuccessful is not negligence if the treatment chosen was an accepted treatment on the basis of the information available to the doctor at the time a choice had to be made; a doctor must, however, use reasonable care to obtain the information needed to exercise his or her professional judgment, аnd an unsuccessful method of treatment chosen because of a failure to use such reasonable care would be negligence.
Id. at 816.
. For example, the court stated, with respect to the facts of Das, that
the jury first should have been instructed that if it believed plaintiff’s expert that defendant deviated from the standard of care by not monitoring plaintiff's pregnancy with ultrasounds, electronic fetal monitoring and biophysical profiles, then it may not excuse defendant’s omissions as medical judgment. Conversely, if it believed defendant’s expert that maternal fetal monitoring complied with the standard of care, then the selection of one of two generally accepted courses of treatment was an exercise of medical judgment for which defendant could not be liable. Stated differently, the jury should have been instructed that in order for defendant to prevail based on the exercise of medical judgment, the jury had to find that maternal fetal monitoring represented an equally acceptable approach to the other, more modern alternatives. The jury instructions must incorporate the evidence and the legal theories of liability and make clear that medical "judgment does not represent a departure from the requirements of accepted medical practice.” Schueler [v. Strelinger,]43 N.J. 330 ,204 A.2d 577 [, 585 (N.J.1964).] That is the only way to make clear to a jury what action may qualify as an acceptable exercise of medical judgment.
*524 Id. at 883-84.
. The instruction stated,
In administering to his patient, a physician must be free to exercise reasonable judgment and is not liable for an error in judgment not arising from his negligencе.
When there is reasonable doubt as to what should be done in accordance with reasonable current practice, he is not responsible for a reasonable decision which turns out to be erroneous. However, this error in judgment does not extend to a case in which the situation precipitating the erroneous decision occurs because of the doctor's lack of the knowledge which he should possess or the failure to exercise that degree of skill and care which it is his duty to apply.
Patterson,
. For other professional malpractice cases besides medical malpractice, California permits the error in judgment instruction, as follows:
[A] [An]_is not necessarily negligent because [he] [or] [she] errs in judgment or because [his] [or] [her] efforts prove unsuccessful. However, [a] [an] - is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties as defined in these instructions.
Id. (quoting BAJI 6.37.2 "Professional Perfection Not Required”) (emphasis added).
. In
Somer,
the Eleventh Circuit Court of Appeals explained that after the Florida Supreme Court Committee on Standard Jury Instructions adopted an instruction setting forth the standard of care for physicians, which did not include error in judgment or similar language and the committee "condemned” the error in judgment language, Florida appellate courts began to express their disapproval of the honest error of judgment and similar instruction language.
The Delaware Supreme Court examined the use of the mere error of judgment language under the plain error doctrine because the plaintiff did not object to the instruction before the jury was charged.
Riggins,
The Georgia Court of Appeals disapproved of an instruction that provided that a physician is not responsible "for a lack of success or an honest mistake or an error in judgment[.]” Hartman, 466 S.E.2d at 35. The court drafted the instruction the jury should have received. In that instruction, nothing excuses a physician from liability for an “error,” "mistake,” or judgment call. Rather, the controlling instruction sets forth the applicable standard of care.
The North Carolina Supreme Court did not specifically address whether the error in judgment or similar language was appropriate. However, it expressly held that use of "honest error” is "potentially misleading and exculpatory” and, therefore, "inappropriate in an instruction on the liability of a doctor for medical malpractice[.]”
Wall,
The Ohio Court of Appeals examined an instruction that used "honest error” or “mistake in judgment” and discussed the inappropriateness of the use of "judgment” in a jury instruction.
Kurzner,
. Although our jury instructions are many times modeled after California’s pattern jury instructions, in this particular instance, California's instruction should not be cited. California, unlike South Dakota, allows an error in judgment instruction to be used in all professional malpractice actions. See supra note 12.
. There may be limited occasions when an error in judgment instruction may still be used. Because medicine is not an exact science and because a physician in some instances may be presented with multiple methods of acceptable treatment for a particular condition, a physician must be allowed to exercise his or her professional judgment. Therefore, there may be instances in which a juiy may be instructed that the physician's choice of treatment from multiple acceptable treatments available is not necessarily negligence. Such instruction, however, cannot propose that the physician may commit a mere error or mistake and not be liable. A proper instruction might contain language similar to the one approved by the Minnesota Supreme Court:
If there are two methods of treatment for a particular medical condition, both accepted by the medical profession, then there is a matter of professional opinion or judgment which is best, and the doctor's choice of either is, ordinarily, not negligence.
See Ouellette,
. Defendants also claim that Papke failed to preserve this issue for appeal because after her motion to exclude was denied she failed to then object when questions on causation were asked of Dr. Goetz and defendants' second expert Dr. Jack Bert. This contention is *529 without merit. The court’s ruling to deny her motion is not akin to a motion in limine, which, under our former rule, required a subsequent objection for preservation on appeal. Papke adequately preserved the issue when she made the motion to exclude the expert testimony. The present rule is SDCL 19-9-3 (Rule 103(a)), which states in part: "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” (Effective July 1, 2006).
. Papke also challenges the reliability of Dr. Goetz’s testimony, but because further discovery will undoubtedly occur on his opinions before this case is retried, we decline to rule on the issue at this time.
. The following cоurts examined Restatement (Second) of Torts, section 920A, in allowing the award of write offs.
Bynum, 101
P.3d at 1154;
Montgomery Ward & Co., Inc.,
. The Restatement further identifies those benefits for which the collateral source rule applies: insurance benefits, employment benefits, gratuities, and social legislation benefits. Id. § 902A cmt c.
. Although not applicable to this case, when a plaintiff procures private medical insurance coverage and the insurance provider contracts with a healthcare provider for a lower rate, the plaintiff, not the defendant, should receive the benefit of that bargain. It is the plaintiff who pays the premium for the insurance coverage and the lower rates.
See Calva-Cerqueira,
.The court, however, recognized that Medicaid was dissimilar, in that it is provided free to all those who qualify.
Rose,
. The court also distinguished the two cases primarily relied upon for disallowing recovery.
Id.
at 804 (citing
Hanif v. Housing Auth.,
. SDCL 21-3-12 makes admissible evidence of certain "special'' damages paid for by insurance. In this case, however, although the plaintiff's complaint generally mentioned the term special damages, such damages were not specifically detailed or itemized as required by SDCL 15—6—9(g). Furthermore, the trial court did not instruct the jury on special damages, and the defendants did not raise SDCL 21-3-12 before the trial court as having a bearing on any special damages. No instruction was proposed to the jury seeking to make these payments admissible because they constituted insurance payments on special damages. Moreover, in this appeal, the defendants in their notice of review do not allege that these medical bills constitute special damages. Indeed, they do not cite SDCL 21-3-12 as controlling in this case.