Kostel v. Schwartz

• Citation: 756 N.W.2d 363,2008 SD 85
• Decision Date: 20 August 2008
• Docket Number: No. 24254.,No. 24244.,24244.,24254.
• Court: Supreme Court of South Dakota
• Parties: Patricia KOSTEL, Plaintiff and Appellee, v. Steven B. SCHWARTZ, M.D., individually, Steven B. Schwartz, M.D., P.C., d/b/a West River Neurosurgery & Spine, a professional corporation, Defendants and Appellants.

756 N.W.2d 363

2008 SD 85

Patricia KOSTEL, Plaintiff and Appellee, v. Steven B. SCHWARTZ, M.D., individually, Steven B. Schwartz, M.D., P.C., d/b/a West River Neurosurgery & Spine, a professional corporation, Defendants and Appellants.

No. 24244.

No. 24254.

Supreme Court of South Dakota.

Argued on March 26, 2008.

Decided August 20, 2008.

G. Verne Goodsell, Terence R. Quinn, Matthew E. Naasz of Gunderson, Palmer, Goodsell & Nelson, LLP Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Lonnie R. Braun, Timothy L. Thomas, Gregory J. Bernard of Thomas Nooney Braun Solay & Bernard, LLP Rapid City, South Dakota, Attorneys for defendants and appellants.

GILBERTSON, Chief Justice.

[¶ 1.] Patricia Kostel (Kostel) filed suit against Dr. Steven B. Schwartz, M.D. and Steven B. Schwartz, M.D., P.C., d/b/a West River Neurosurgery & Spine (collectively Dr. Schwartz) alleging medical malpractice. The case was tried to a jury May 30 through June 8, 2006, in the South Dakota Seventh Judicial Circuit. The jury entered a verdict for Kostel and on June 27, 2006, the trial court entered a judgment on the verdict. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In March 2002, Kostel consulted with Dr. Schwartz, a Rapid City, South Dakota, neurosurgeon, in regard to a back problem. Following an examination of Kostel and review of her medical records, Dr. Schwartz recommended that she undergo a one-level spinal fusion at the L4-L5¹ vertebral segment. The procedure was to involve an L4 laminectomy² and L4-L5 discectomy³ using posterior lumbar interbody fusion⁴ with pedicle screws.⁵ Dr. Schwartz operated on Kostel on March 8, 2002. In addition to the anticipated fusion at the L4-L5 segment, Dr. Schwartz performed fusions at the L3-L4 and L5-S1⁶ segments as well.

[¶ 3.] Following her surgery, Kostel received an anonymous letter, ostensibly written by a surgical nurse or operating room or scrub technician, which alleged that serious problems had occurred during the surgery.⁷ The letter suggested that Kostel seek legal recourse against Dr. Schwartz and included referrals and Yellow Page advertisements for local attorneys practicing in the field of medical malpractice. Kostel ultimately filed suit against Dr. Schwartz alleging negligence in the performance of her surgery, and that the surgery exceeded the scope of the L4-L5 fusion to which she had given consent.

[¶ 4.] During the jury trial the parties disputed why the surgery went beyond its preoperative scope. Kostel alleged that Dr. Schwartz became "lost in her spine" and mistakenly performed unnecessary fusions in addition to the consented-to, L4-L5 fusion. Kostel elicited testimony from Dr. Schwartz that in the fourteen months prior to her surgery, he had misread X-rays and had conducted surgery at unconsented-to levels. Her suit against Dr. Schwartz, supported by expert testimony, was founded on the claim that such was the case with her procedure and that he had consequently breached the standard of care to which she was entitled.

[¶ 5.] Dr. Schwartz testified that the preoperative examination and X-rays did not reveal problems in the L3-L4 and L5-S1 segments. He stated that it was only after the operation had commenced that the problems in these segments were apparent, and that accordingly, he fused those areas as well. Dr. Schwartz presented expert witnesses who testified that a procedure conducted beyond the scope of consent, to repair spinal problems undetectable through preoperative examination, was consistent with the requisite standard of care.

[¶ 6.] The jury found for Kostel and awarded damages of $551,962.96. Kostel moved for additur, or in the alternative, a new trial on damages. Dr. Schwartz responded and moved for a new trial. The trial court denied the post-trial motions and entered judgment on the verdict on June 27, 2006.

[¶ 7.] Both parties allege error in regard to evidentiary decisions and jury instructions by the trial court. Dr. Schwartz raises six issues on appeal:

1. Whether the trial court abused its discretion when it precluded Dr. Schwartz from testifying to his training, experience and knowledge without opening the door to the disclosure of other allegations of malpractice and associated disciplinary proceedings.

2. Whether the trial court abused its discretion when it allowed Kostel to elicit testimony from Dr. Schwartz pertaining to alleged "other acts" and when the court gave the jury an instruction limiting the applicability of the testimonial evidence obtained during this line of questioning.

3. Whether the trial court abused its discretion when it refused to admit an anonymous letter sent to Kostel, the author of which was a competitor of Dr. Schwartz's and non-testifying expert for Kostel.

4. Whether the trial court abused its discretion by the inclusion of jury instructions objected to by Dr. Schwartz and the denial of others that he requested.

5. Whether the trial court abused its discretion by the sua sponte preclusion of evidence related to Kostel's history of psychiatric disorders.

6. Whether the trial court erred when it excluded evidence that portions of Kostel's medical bills were "written off" pursuant to federal laws governing the billing of Medicare beneficiaries.

We address one issue raised by Kostel on notice of review:⁸

7. Whether the trial court abused its discretion by denying Kostel's request for a jury determination of her claim for punitive damages.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court abused its discretion when it precluded Dr. Schwartz from testifying to his training, experience and knowledge without opening the door to the disclosure of other allegations of malpractice and associated disciplinary proceedings.

[¶ 9.] Within the fourteen-month period prior to the surgery he performed on Kostel, Dr. Schwartz operated on two patients, on both of which Dr. Schwartz mistakenly performed procedures in the wrong locations on the patients' spines. The first of these surgeries took place in July 2001, seven months after Dr. Schwartz completed his residency and started his practice. As a consequence, litigation arising from these two incidents was pending at the time the instant case was at trial.

[¶ 10.] On December 17, 2003, Dr. Schwartz signed a stipulation with the South Dakota State Board of Medical and Osteopathic Examiners (the "Board") wherein he agreed to have his license placed on probationary status. Among the conditions of the probation, Dr. Schwartz agreed to complete one year of advanced clinical training in neurosurgery and three months of advanced training in neuroradiology. He also agreed that he would limit his practice of medicine to the extent required to fulfill the training obligations. Dr. Schwartz further agreed that for a period of five years following the completion of training, he would refrain from practicing on his own and that during that time he would only engage in the practice of neurosurgery through group practice. The stipulation provided that various national data bases and the Federation of State Medical Boards would be notified of the probation and that the "Basis for Action" given in such notification would be "Malpractice."

[¶ 11.] Dr. Schwartz moved in limine to exclude evidence or testimony concerning the other pending malpractice suits and Board proceedings. At a hearing on May 5, 2006, the trial court granted his motion. The exclusion was conditioned, however, on Dr. Schwartz refraining from offering any testimony about his training and experience, or opinions as to the applicable standard of care. Still, Dr. Schwartz was permitted to testify about the surgical procedure he performed on Kostel and the intra-operative pathology that he alleged was the basis for expanding the preoperative scope of the surgery without exposing himself to examination of other pending malpractice claims or proceedings involving the same type of allegations. Nevertheless, Dr. Schwartz contends the ruling was prejudicial and that he should have been able to offer his expert opinion as to the applicable standard of care and to establish for the jury the basis for his opinion by testifying to his training and qualifications without being subject to inquiry into the other pending malpractice suits or the Board proceedings.

[¶ 12.] "The trial courts 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.'" Kaiser v. Univ. Physicians Clinic, 2006 SD 95, ¶ 29, 724 N.W.2d 186, 194 (internal citations and quotations omitted).

[¶ 13.] Dr. Schwartz argues that an inquiry into the other pending malpractice suites or Board proceedings would violate SDCL 19-14-10 (Rule 608(b)). Rule 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in §§ 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:

(1) Concerning his character for truthfulness or untruthfulness; or

(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

In support of this argument, Dr. Schwartz cites Persichini v. William Beaumont Hosp., 238 Mich.App. 626, 607 N.W.2d 100 (1999); Heshelman v. Lombardi, 183 Mich. App. 72, 454 N.W.2d 603 (1990); Nowatske v. Osterloh, 201 Wis.2d 497, 549 N.W.2d 256 (Ct.App.1996); and Roe v. Doe, 160 Misc.2d 1074, 612 N.Y.S.2d 558 (N.Y.Sup. Ct.1994).

[¶14.] These cases are consistent with the precept that inquiry into an expert's alleged mistakes or connection to unrelated adverse claims do not impact on his credibility or...