Kaiser v. University Physicians Clinic

• Decision Date: 01 November 2006
• Docket Number: No. 23652.,23652.
• Citation: 2006 SD 95,724 N.W.2d 186
• Parties: Tom KAISER and Laura Kaiser, Plaintiffs and Appellants, v. UNIVERSITY PHYSICIANS CLINIC, and Elizabeth Dimitrievich, Defendants and Appellees.
• Court: South Dakota Supreme Court

724 N.W.2d 186

2006 SD 95

Tom KAISER and Laura Kaiser, Plaintiffs and Appellants, v. UNIVERSITY PHYSICIANS CLINIC, and Elizabeth Dimitrievich, Defendants and Appellees.

No. 23652.

Supreme Court of South Dakota.

Argued April 26, 2006.

Decided November 1, 2006.

Ronald A. Parsons, Jr., Scott A. Abdallah of Johnson, Heidepriem, Miner, Marlow & Janklow, L.L.P., Sioux Falls, South Dakota and Mark W. McNeary of McNeary & Anderson, Aberdeen, South Dakota, Attorneys for appellants.

Melissa Hinton, Edwin E. Evans, Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellees.

GILBERTSON, Chief Justice.

[¶ 1.] Tom and Laura Kaiser (Kaisers) brought a medical malpractice action against University Physicians Clinic and Elizabeth Dimitrievich, M.D. (Defendants). A jury verdict was rendered in favor of Defendants. Kaisers appeal contending the circuit court erred when it admitted a previously undisclosed exhibit into evidence, allowed the use of two other previously undisclosed exhibits for illustrative purposes, and ruled that Defendants' expert witness could testify about the exhibits to the jury. We reverse and remand for a new trial.

FACTS AND PROCEDURE

[¶ 2.] Laura and Tom were married in June 1999, and began trying to conceive a child a year after their marriage. The couple was unable to conceive and sought the assistance of an obstetrics and gynecology (OB-GYN) specialist in Aberdeen, South Dakota. Several attempts with intrauterine (artificial) insemination failed to result in a pregnancy. The couple moved to Sioux Falls, South Dakota, in August of 2000. In early 2002, the couple scheduled an appointment with Keith Hanson, M.D., a fertility specialist in Sioux Falls, to resume trying to start their family. However, the day before the appointment Laura discovered she was already pregnant.

[¶ 3.] Laura remained under Hanson's care through her first trimester and was then referred to Elizabeth Dimitrievich, M.D., a board-certified OB-GYN specialist at University Physicians Clinic in Sioux Falls. The pregnancy progressed fairly normally except the baby was in a breech position during most of the pregnancy. Laura's due date was calculated as September 20, 2002.

[¶ 4.] On Monday, September 16, 2002, Laura saw Dimitrievich for a rash. While at Dimitrievich's office, Laura's blood pressure became slightly elevated and she began having a contraction. Dimitrievich decided to schedule a cesarean section (c-section) for the following morning. Later that evening, Laura began experiencing tightness around her chest and rib cage and telephoned Dimitrievich. Dimitrievich advised Laura to meet her at Sioux Valley Hospital for an evaluation.

[¶ 5.] After examining Laura, Dimitrievich determined that Laura was in early labor. She also determined that Laura had a borderline temperature and an elevated pulse rate of 112 beats per minute. Dimitrievich ordered a complete blood count (CBC), which showed a high white count of 20,000¹ and a "left shift." The "left shift" gave Dimitrievich concern that Laura might have a bacterial infection. Given these findings and the baby's breech presentation, Dimitrievich determined that an immediate c-section was required. Dimitrievich ordered a dose of ampicillin, a broad spectrum penicillin, prior to the c-section to cover the possibility of a bacterial infection.

[¶ 6.] At 1 a.m. on Tuesday, September 17, 2002, Spencer Kaiser was delivered by c-section, weighing nine pounds and five ounces. Following the birth, Dimitrievich brought the uterus outside the abdominal cavity per her standard practice in order to repair the c-section incision. The procedure was routine except Dimitrievich noticed an abnormal vein above the incision in a place blood vessels are normally not seen. Dimitrievich believed the vein was bleeding, so she sutured it. However, the stitches she put in caused more bleeding and Dimitrievich applied a product that assists in halting bleeding. Once the bleeding ceased, Dimitrievich placed the uterus back in the abdominal cavity. Dimitrievich then ordered antibiotics for an additional twenty-four hours after the c-section due to Laura's previously elevated heart rate, white blood cell count, and the bleeding from the uterine abnormality. Because the c-section had been routine, Dimitrievich did not send the placenta to the pathology laboratory for biopsy and it was discarded per routine hospital procedures.

[¶ 7.] Laura's recovery appeared to be progressing normally until Thursday, September 19, approximately two days after the surgery. Laura vomited and reported she felt "like things weren't moving inside," that she felt bloated and nauseous, and that her stomach was hardening. Dimitrievich ordered a change from a normal diet to a liquid diet, suspecting an ileus—a dysfunction of the bowel common after surgical procedures. On Saturday, September 21, Laura spiked a fever of 102.2 degrees Fahrenheit. Dimitrievich ordered a dose of triple antibiotics and demerol for the pain. Later that evening, Dimitrievich called Maria Bell, M.D., a gynecologist with a subspecialty in gynecological surgery, for a surgical consult.

[¶ 8.] After examining Laura on Monday, September 23, Bell advised her that if she did not improve on the antibiotic treatment in the next twenty-four hours, exploratory surgery would be necessary. On Tuesday, September 24, Bell along with surgeon Robert George, M.D., performed exploratory surgery on Laura to determine the cause of her symptoms.

[¶ 9.] The surgeons discovered a massive infection in Laura's peritoneal cavity. The peritoneal cavity and the surface of her organs, including her uterus, bowels, liver and spleen were covered in pus and extensive adhesions, a condition known as peritonitis. Bell and George examined the large and small intestine visually and by "running," meaning examining by hand, the small intestine and most of the large intestine for evidence of injury. No injury to either the large or the small intestine was found, nor did the surgeons find any sign of an injury that might have occurred during the c-section and subsequently healed over. According to George, there were so many adhesions and so much pus that it was not possible to determine whether an injury had occurred.

[¶ 10.] After cleaning out the peritoneal cavity as best they could, Bell and George concluded that it was necessary to perform a total hysterectomy to remove the uterus, cervix, ovaries and fallopian tubes. Laura's appendix was also removed. Bell made the decision to remove the organs because of concerns the organs might be the source of the infection, and that it would not clear up if they were left inside the peritoneal cavity. No portions of the large or the small intestine were removed.

[¶ 11.] Organ tissues and cultures from the infected peritoneal fluid were sent to the pathology laboratory for testing. The pathology report indicated that two of eleven samples taken from Laura's uterus contained microscopic spots of "foreign vegetable matter" measuring six to seven microns² each embedded in the surface of the uterine tissue. The pathologist was able to identify it as plant or vegetable matter due to the cell walls of the material, as only plant or vegetable matter has such cell wall formations. However, the vegetable matter could not be identified as partially digested food, nor could its source be determined from the limited samples taken from the uterus. The only definitive determination that could be made was that it was of plant origin as opposed to animal or mineral in origin. The vegetable matter embedded in the uterus was determined not to be the source of the infection, as very little pus was present at their respective locations. Based on the cultures of the peritoneal fluid it was determined that two bacteria normally found in the large intestine, Bacteroides uniformis and Klebsiella oxytoca, were present in the peritoneal cavity. However, because the placenta had already been disposed of, no further pathological testing could be performed in an attempt to identify the source and cause of the infection, or the nature of the vegetable matter found on the uterus.

[¶ 12.] Laura recovered from the infection and was discharged from the hospital four days after the surgery. She suffered a recurrence of the infection that resulted in a pelvic abscess. However, it was treated without surgical intervention and she recovered.

[¶ 13.] In August 2003, Tom and Laura brought suit against Defendants alleging medical malpractice. Kaisers' theory of the case was that Dimitrievich had perforated Laura's bowel during the c-section and that leakage from the bowel had caused the massive infection. Kaisers contended that the presence of the vegetable matter on the surface of Laura's uterus was a marker that indicated leakage from the bowel had occurred. Kaisers also theorized that the presence of the two bacteria commonly found in the bowel were evidence of the perforation. Although no evidence of a perforation was found by Bell and George when they ran the bowels during the exploratory surgery, Kaisers' theory was that a small perforation caused by Dimitrievich spontaneously healed over after fecal matter was released into the peritoneal cavity.

[¶ 14.] Defendants' theory of the case was that Dimitrievich did not injure Laura's bowel during the c-section. Defendants contended the vegetable matter had been present since before the c-section and its identification as "vegetable" did not identify its source, nor indicate it was food matter ingested by Laura. Identification as vegetable matter only indicated its general character as not being of animal or mineral origin but rather of plant origin. Defendants argued that the source of the vegetable matter was not relevant to the infection as it predated the c-section by at least one week and possibly up to several months.

[¶ 15.] Defendants argued the bacteria found in...