Papke v. Harbert

• Decision Date: 15 August 2007
• Docket Number: No. 24044.,No. 24043.,24043.,24044.
• Court: South Dakota Supreme Court
• Parties: Adeline PAPKE, Plaintiff and Appellant, v. Thomas HARBERT, M.D., Mark Harlow, M.D. and Aberdeen Orthopedics & Sports Medicine, Defendants and Appellees.

738 N.W.2d 510

2007 SD 87

Adeline PAPKE, Plaintiff and Appellant, v. Thomas HARBERT, M.D., Mark Harlow, M.D. and Aberdeen Orthopedics & Sports Medicine, Defendants and Appellees.

No. 24043.

No. 24044.

Supreme Court of South Dakota.

Argued March 19, 2007.

Decided August 15, 2007.

Ronald A. Parsons, Jr., Scott N. Heidepriem, Brendan V. Johnson of Johnson, Heidepriem, Miner, Marlow and Janklow, L.L.P., Chet Groseclose, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Reed Rasmussen of Siegel, Barnett and Schutz, L.L.P., Aberdeen, South Dakota, Attorneys for defendants and appellees.

KONENKAMP, Justice.

[¶ 1.] In this medical 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.

[¶ 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 "[o]bvious peripheral vascular disease." His plan, according to his treatment notes, was to "further evaluate with ultrasound and MRA and [provide] [f]urther 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 McKennan 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 on 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, Papke 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. Harbert 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 was 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., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615.

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, 2005 SD 6, ¶ 11, 692 N.W.2d 165, 168; Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 115. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions: to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial. First Premier Bank v. Kolcraft Enter., Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citations omitted). Erroneous instructions are prejudicial under SDCL 15-6-61 when in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party. Accordingly, when the question is whether a jury was properly instructed overall, that issue becomes a question of law...