*1 #27098-a-LSW
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
LITA ST. JOHN, Plaintiff and Appellant,
v. LINDA PETERSON, M.D., Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE JON S. FLEMMER
Judge
* * * *
THOMAS L. SANNES
DAVID A. GEYER of
Delaney, Nielsen & Sannes, PC
Webster, South Dakota Attorneys for plaintiff
and appellant.
REED RASMUSSEN of
Siegel, Barnett and Schutz, LLP
Aberdeen, South Dakota Attorneys for defendant
and appellee. * * * *
CONSIDERED ON BRIEFS ON MARCH 23, 2015 OPINION FILED 06/03/15 *2 WILBUR, Justice
[¶1.] The circuit court entered judgment for Defendant, Dr. Linda Peterson. Plaintiff, Lita St. John, appeals the judgment and challenges the court’s ruling that certain evidence was not relevant and, therefore, was inadmissible. We affirm.
Background
[¶2.]
This is the third appeal of this medical malpractice action.
See St.
John v. Peterson
(
St. John I
),
[¶3.]
On remand, the circuit court concluded that the proffered evidence was
inadmissible and reinstated the original judgment.
St. John II
,
1. On August 16, 2010, the circuit court granted summary judgment in favor of Dr. Peterson on St. John’s claim of informed consent. Later, on April 20, 2014, the court granted partial summary judgment in favor of Dr. Peterson on St. John’s claim that Dr. Peterson negligently caused injury to St. John’s bladder.
[¶6.] Specifically, the circuit court found that evidence regarding Dr. Peterson’s care and treatment of Cheryl was not relevant because it did not make the existence of any fact in St. John’s case more or less probable on the issue of Dr. Peterson’s competence to repair St. John’s vesicovaginal fistula. Dr. Peterson performed an abdominal hysterectomy on Cheryl. During the surgery, Dr. Peterson observed a “rent” on Cheryl’s bladder, but she took no steps to address the “rent” at the time of the surgery. Later, Cheryl developed a vesicovaginal fistula in a different location than the “rent.” Dr. Peterson successfully repaired the fistula. Thereafter, Cheryl developed another fistula in a separate location from the first fistula. Dr. Peterson attempted to repair the second fistula. Following the surgery of the second fistula, Cheryl sought care elsewhere and underwent further surgery. In finding that this evidence was not relevant, the court noted that Dr. Peterson successfully repaired one fistula, and the “results of her attempts to repair the second fistula are unknown.”
[¶7.] In addition, the circuit court found that evidence regarding Dr. Peterson’s care and treatment of Crystal and Ruth was not relevant because Dr. Peterson did not attempt to use the Latzko procedure to repair either Ruth or Crystal’s vesicovaginal fistulas. Instead, “a different surgical procedure” was performed on Crystal and Ruth than was performed on St. John. Accordingly, the court found that Dr. Peterson’s treatment of Crystal and Ruth did “not make the existence of any fact in Plaintiff’s case more or less probable on the issue of Defendant’s competence to repair Plaintiff’s vesicovaginal fistula.” *5 [¶8.] Furthermore, in its April 30, 2014 order regarding Dr. Peterson’s motion in limine, the circuit court reaffirmed most of the redactions to Dr. Wharton’s deposition. At the third jury trial 2 on April 30, 2014, St. John made two offers of proof regarding the redactions to Dr. Wharton’s deposition. The first offer of proof included statements made by Dr. Wharton regarding his review of the medical records for Cheryl, Crystal, and Ruth. Dr. Wharton stated that each of these three women developed vesicovaginal fistulas while under Dr. Peterson’s care within 18 months of each other, and that Dr. Peterson attempted and failed to repair each woman’s fistula. St. John’s counsel asked Dr. Wharton, “[I]n terms of her competency [at] fixing holes in the bladder once they’ve been caused, does the fact that she’s had multiple attempts to fix them that have failed give you an impression one way or the other as to whether she knows how to do that?” Dr. Wharton replied, “Yeah. It simply tells me that this doctor really had no idea what she’s doing or how to repair a fistula appropriately and following standard principle techniques [that are well known] throughout the United States.” [¶9.] The second offer of proof involved statements made by Dr. Wharton about whether Dr. Peterson informed St. John that repairing fistulas was not her specialty. The offer of proof included the following exchange:
Counsel
: Dr. Wharton, I only have a couple of more questions.
And I may have covered this, but I’m not sure. But at any point
along the care, did you ever see anytime where Dr. Peterson
indicated in her records that she’d had any kind of conversation
2. The jury was unable to reach a verdict in the first trial.
St. John I
, 2011 S.D.
58, ¶ 5,
Dr. Wharton : No, I never saw that in the record.
Counsel : If that were the case, if Dr. Peterson knew that it wasn’t her specialty and she knew that there were people whose specialty it was, would the standard of care require her to inform the patient of that and . . . let them make an informed decision?
Dr. Wharton : Yes.
Counsel : And in that regard, did you see any evidence in the records, or from the evidence in the records, did it appear that Dr. Peterson had fallen below the standard of care?
Dr. Wharton : In my opinion . . . that, by definition, ends below the standard of care, to offer a procedure that you’re not comparable doing without informing the patient or giving the patient a choice.
[¶10.] The circuit court rejected both offers of proof. The court stated that it “would deny the [first] offer of proof at this time for the reasons that the [c]ourt has previously set forth in its rulings and memorandum decision that was issued previously.” At an earlier trial, the court ruled that the first offer of proof was inadmissible because the testimony about the three women, as described above, was not relevant. The court denied the second offer of proof because it found that the statements made by Dr. Wharton related to the issue of informed consent, an issue upon which the court had previously granted summary judgment in favor of Dr. Peterson. The jury returned a verdict in favor of Dr. Peterson. St. John appeals
and raises the following issues for our review:
1. Whether the circuit court erred by denying admission of evidence regarding Dr. Peterson’s treatment of other patients.
2. Whether the circuit court erred by denying admission of Dr. Wharton’s testimony that Dr. Peterson breached the standard of care by failing to inform St. John that repairing vesicovaginal fistulas was not her specialty.
Standard of Review
[¶12.]
“‘The trial court’s evidentiary rulings are presumed correct and will not
be overturned absent a clear abuse of discretion. An abuse of discretion refers to a
discretion exercised to an end or purpose not justified by, and clearly against reason
and evidence.’”
St. John I
,
McEldowney
,
Analysis
[¶13.] 1. Whether the circuit court erred by denying admission of
evidence regarding Dr. Peterson’s treatment of other patients. The circuit court denied admission of evidence relating to lawsuits or
claims brought against Dr. Peterson and evidence relating to Dr. Peterson’s
unsuccessful treatment of other patients with vesicovaginal fistulas. The court also
denied admission of Dr. Wharton’s testimony regarding Dr. Peterson’s treatment of
other patients with fistulas. St. John argues that the court erred by denying this
evidence because the evidence was relevant under SDCL 19-12-1 (Rule 401), and
*8
admissible under SDCL 19-12-2 (Rule 403) or, alternatively, under SDCL 19-12-5
(Rule 404(b)). “‘For evidence to be admitted during trial, it must be found to be
relevant. Once the evidence is found to be relevant, it is admissible unless it is
specifically excluded.’”
St. John I
,
[¶16.] First, we consider the exclusion of statements made by Dr. Peterson during a deposition regarding her treatment of Cheryl, Crystal, and Ruth. St. John argues that this evidence is relevant because it addresses Dr. Peterson’s experience, knowledge, and competency in repairing fistulas. St. John asserts, “Dr. Peterson’s failed attempts to repair a similar vesicovaginal fistula in the same location, during the same time frame, make it more probable . . . that she did not possess the necessary skill to perform the repair.” St. John contends that this evidence addresses a “consequential fact that goes to the heart of the case[.]” See SDCL 19- 12-1 (Rule 401).
[¶17.]
The circuit court did not abuse its discretion when it determined that
the evidence pertaining to Dr. Peterson’s treatment of Crystal and Ruth did not
reach the threshold level of relevance under Rule 401.
See id.
;
Supreme Pork
, 2009
S.D. 20, ¶ 43,
admission of evidence of Dr. Peterson’s treatment of Cheryl. Cheryl developed a fistula after Dr. Peterson performed an abdominal hysterectomy on her. Dr. Peterson successfully repaired the fistula. After this surgery, Cheryl developed *10 another fistula in a separate location from the first fistula. Dr. Peterson performed surgery on the second fistula. The circuit court found that “the results of her attempts to repair the second fistula are unknown.” Following the surgery of the second fistula, Cheryl sought care elsewhere and eventually underwent further surgery. The court found that Dr. Peterson’s “post-operative care of [Cheryl] does not make the existence of any fact in [St. John’s] case more or less probable on the issue of [Dr. Peterson’s] competence to repair [St. John’s] vesicovaginal fistula,” and therefore “evidence concerning the care and treatment of [Cheryl] is not relevant.” We agree. All that is clear from this evidence is that Dr. Peterson did in fact successfully repair Cheryl’s first fistula. The results of Cheryl’s second surgery were not made known to the circuit court. Accordingly, the court did not abuse its discretion when it determined this evidence was not relevant. Next, we consider whether the circuit court erred by excluding St.
John’s offer of proof regarding Dr. Wharton’s testimony about Dr. Peterson’s
treatment of former patients. A circuit court has “broad discretion in ruling on the
admissibility of expert opinions.”
Reinfeld v. Hutcheson
,
of proof and excluded a portion of Dr. Wharton’s testimony. Dr. Wharton’s
testimony was neither relevant nor reliable.
See id.
Dr. Wharton relied on Dr.
Peterson’s statements during her deposition to reach the conclusion that she was
not competent to perform the Latzko procedure on St. John. As discussed above,
Dr. Peterson’s statements were not relevant to the case. Furthermore, Dr. Wharton
incorrectly testified that Dr. Peterson had attempted a Latzko repair on Cheryl,
Crystal, Ruth, and St. John, and that all such attempts failed. Dr. Peterson and
two expert witnesses submitted affidavits establishing that Dr. Peterson did not
perform a Latzko repair on Crystal and Ruth. St. John did not submit evidence
refuting these affidavits. Thus, we conclude that the circuit court did not err when
it denied St. John’s offer of proof on grounds of relevance. Therefore, we need not
consider St. John’s arguments as to whether the evidence was admissible under
Rule 403 or Rule 404(b).
See St. John I
,
Dr. Wharton’s testimony that Dr. Peterson breached the standard of care by failing to inform St. John that repairing vesicovaginal fistulas was not her specialty.
[¶22.] The circuit court excluded St. John’s second offer of proof on the grounds that it was not relevant to St. John’s claim that Dr. Peterson was negligent by failing to refer St. John to a specialist. Instead, the court found that the offer of proof related to the issue of informed consent, an issue that the circuit court *12 previously resolved by summary judgment in favor of Dr. Peterson. 3 St. John contends that the court erred when it determined that the offer of proof did not relate to her claim that Dr. Peterson was negligent in failing to refer St. John to a specialist for treatment of her fistula. We disagree.
[¶23.]
The circuit court’s “evidentiary rulings are presumptively correct.”
Cain v. Fortis Ins. Co.
,
A physician has the duty 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.
The offer of proof at issue included the following exchange between Dr. Wharton and counsel at his deposition. Counsel asked Dr. Wharton, “[I]f Dr. Peterson knew that [repairing fistulas] wasn’t her specialty and she knew that there were people whose specialty it was, would the standard of care require her to inform the patient of that and . . . let them make an informed decision ?” (Emphasis added.) Dr. Wharton replied, “In my opinion . . . that, by definition, ends below the standard of 3. Addressing St. John’s motion for reconsideration of the prior limine ruling on the second offer of proof, the court stated during the third trial: The portion of the deposition in question does make reference to being referred to someone else. But the answer that Dr. Wharton gave does not necessarily indicate that that’s what he’s talking about. The second question before Dr. Wharton’s answer indicates that we’re talking about the standard of care required her to inform the patient of that and let them make an informed decision. And it appears to the [c]ourt that the prior ruling in which this evidence was determined to be inadmissible due to the ruling on the summary judgment on informed consent would still be applicable, so the Motion for Reconsideration would be denied.
care, to offer a procedure you’re not comparable doing without informing the patient or giving the patient a choice.” (Emphasis added.)
[¶24.] This offer of proof relates to the issue of whether Dr. Peterson informed St. John that she was not a specialist in repairing vesicovaginal fistulas, not whether Dr. Peterson breached a duty to refer St. John to a specialist. Notably absent from the offer of proof is any opinion from Dr. Wharton on whether, under these circumstances, “a reasonably careful and skillful physician would” have referred St. John or recommended that she see a specialist, as is required to establish negligence in failing to refer to a specialist. Dr. Wharton merely opined that Dr. Peterson’s conduct fell below the standard of care when she failed to inform St. John that repairing fistulas was not her specialty.
[¶25.]
Moreover, a review of the record as a whole establishes that Dr.
Wharton’s testimony did not relate to the issue of negligence in failing to refer to a
specialist. Dr. Wharton’s deposition occurred before the second trial on February
12, 2010. Several months before the deposition, Dr. Wharton submitted an affidavit
to the court alleging that Dr. Peterson’s care fell below the accepted standard of
care due to her failure to obtain informed consent and for her alleged negligent
treatment of St. John’s fistula. Dr. Wharton made no mention of the standard of
care for referring a patient to a specialist in his affidavit. Indeed, St. John did not
claim that Dr. Peterson was negligent in failing to refer her to a specialist until
years later, before the third trial. In fact, at the July 29, 2010 pretrial conference
on Dr. Peterson’s motion for summary judgment on the issue of informed consent,
counsel for St. John stated, “Defendant acknowledges that our expert witness has
*14
testified as to his opinion as to informed consent.” Counsel for St. John specifically
referenced Dr. Wharton’s testimony in an attempt to avoid summary judgment for
informed consent. Now St. John argues that this same testimony relates to the
issue of negligence in failing to refer to a specialist. Consequently, we are not
persuaded that the circuit court abused its discretion when it excluded this
evidence. The exclusion of this evidence did not amount to error, much less
prejudicial error.
See Ruschenberg v. Eliason
,
[¶26.] We affirm. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.