Frye-Byington v. Rapid City Med. Ctr., LLP

CourtSupreme Court of South Dakota
Citation2021 S.D. 3
Docket Number#28969,#28952
PartiesJODIE M. FRYE-BYINGTON, Plaintiff and Appellant, v. RAPID CITY MEDICAL CENTER, LLP, GARY L. WELSH, M.D., ROBERT C. BURGESS, M.D., and MICHAEL C. RAFFERTY, M.D., Defendants and Appellees.
Decision Date20 January 2021

#28952, #28969-a-MES

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA

THE HONORABLE THOMAS L. TRIMBLE Retired Judge

R. SHAWN TORNOW

Sioux Falls, South Dakota

Attorney for plaintiff

and appellant.

LONNIE R. BRAUN

GREGORY J. BERNARD

KIMBERLY PEHRSON of

Thomas, Braun, Bernard,

& Burke, LLP

Rapid City, South Dakota

Attorneys for defendants and

appellees.

SALTER, Justice

[¶1.] Jodie Frye-Byington brought a negligence claim against Rapid City Medical Center (RCMC) and three of its doctors (collectively, the Appellees), alleging the doctors did not inform her of a mass growing in her chest for six years. Jodie asserts that the mass caused her persistent issues with her throat and chest that continued until the mass was removed. Following a six-day jury trial, the jury returned a verdict in favor of RCMC and the named doctors. On appeal, Jodie argues that the circuit court abused its discretion in refusing to allow her to call two rebuttal witnesses and refusing her proposed jury instruction on agency. The Appellees also raise several issues by notice of review. We affirm.

Background

[¶2.] Jodie Frye-Byington sought medical care at RCMC from 2008 to 2014 for complaints of a constant cough, hoarseness, neck pain and swelling, difficulty breathing, and chest pain. Several radiographic images taken between 2008 and 2014 revealed a mass in her chest, but Jodie asserts she was not told of its presence. Over time, the mass grew to about seven centimeters in length, and doctors at the Mayo Clinic removed the mass in September 2014. The mass, known as a mediastinal mass, was determined to be benign thyroid tissue that regrew after doctors removed her thyroid prior to 2008.1

[¶3.] In July 2016, Jodie commenced this action against RCMC and three of its physicians, alleging malpractice for misdiagnosing her condition and failing to inform her of the mass. Jodie's principal claim was that Dr. Robert Burgess, an ear, nose, and throat specialist (ENT), was negligent for not telling Jodie about the mass in 2008 when it was first seen on a CT scan. Her claims against Dr. Michael Rafferty and Dr. Gary Welsh, both family practice physicians, were that they similarly failed to advise her of the mass. Jodie's expert witness, a family practice physician, concluded that the standard of care for a physician—regardless of specialty—required disclosure of the mass to the patient.

[¶4.] Dr. Burgess moved for summary judgment, arguing that Jodie's claim against him was time-barred under South Dakota's two-year medical malpractice statute of repose. See SDCL 15-2-14.1. The circuit court denied Dr. Burgess' motion based upon the continuing tort doctrine, which, when applicable, operates to delay the commencement of the repose period.

[¶5.] During the six-day jury trial, the Appellees objected to portions of the testimony of Jodie's expert witness, alleging some of her opinions were not previously disclosed and that she was not qualified to render an opinion on the standard of care for Dr. Burgess. The Appellees also objected to Jodie's effort to support her malpractice allegations by claiming negligent conduct by an RCMC doctor not named in her suit. The court overruled these objections.

[¶6.] After the Appellees rested, Jodie's counsel asked to call two radiologists as rebuttal witnesses, arguing they were necessary to rebut Dr. Burgess' testimony that he had not previously seen two draft radiology reports. Thecourt denied the request, explaining that Jodie's counsel should have offered the documents as exhibits in its case-in-chief.

[¶7.] At the close of Jodie's case and again the at the close of the evidence, the Appellees moved for judgment as a matter of law, arguing Jodie's expert failed to produce testimony establishing the correct standard of care for an ENT specialist, such as Dr. Burgess. The Appellees also claimed that Jodie's expert failed to provide sufficient testimony to support the malpractice claims against each of the named providers. The court denied these motions and also denied Jodie's proposed jury instruction describing RCMC's vicarious liability in the event the jury found RCMC's doctors negligent.

[¶8.] The jury returned a verdict in favor of RCMC and the named physicians. Jodie raises the following issues on appeal:

1. Whether the circuit court abused its discretion when it denied her request to call two rebuttal witnesses.
2. Whether the circuit court abused its discretion when it denied her proposed jury instruction regarding RCMC's vicarious liability.

[¶9.] By notice of review, the Appellees also raise the following additional issues:2

1. Whether the circuit court erred when it denied Dr. Burgess' motion for summary judgment.
2. Whether the circuit court erred when it denied Dr. Burgess' motion for judgment as a matter of law.
3. Whether the circuit court erred when it denied the Appellees' motion for judgment as a matter of law.
4. Whether the circuit court abused its discretion when it allowed expert testimony alleged to be previously undisclosed.
5. Whether the circuit court abused its discretion when it allowed evidence of an unnamed provider's alleged negligent care to be attributed to the named defendants.
Analysis
Denial of Jodie's Request for Two Rebuttal Witnesses

[¶10.] "Our standard of review for evidentiary rulings 'requires a two-step process[:] first, to determine whether the trial court abused its discretion in making an evidentiary ruling; and second, whether this error was a prejudicial error that "in all probability" affected the jury's conclusion.'" Johnson v. United Parcel Serv., Inc., 2020 S.D. 39, ¶ 27, 946 N.W.2d 1, 8 (quoting Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491) (alteration in original) (emphasis omitted). "An abuse of discretion is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Id. (quoting Andrews v. Ridco, Inc., 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546).

[¶11.] "Rebuttal evidence is that which explains, contradicts, or refutes the defendant's evidence. Its purpose is to cut down [the] defendant's case and not merely to confirm that of the plaintiff[]." Shrader v. Tjarks, 522 N.W.2d 205, 209 (S.D. 1994) (citation omitted); see also SDCL 15-14-1(6) (explaining how rebuttalevidence may be offered during trial). "Rebuttal is appropriate only when the defense injects a new matter or new facts." Id. (citation omitted).

[¶12.] At the heart of Jodie's request for rebuttal testimony were two draft radiology reports from 2010 and 2011,3 which she claims indicate the mediastinal mass had grown since it was first detected in 2008. The draft reports Jodie sought to offer each contain a "cc" notation indicating Dr. Burgess received a copy. However, RCMC's medical records do not contain the same "cc" notation, and Dr. Burgess flatly denied ever seeing the 2011 draft report when Jodie's counsel asked him at his deposition five months before trial. Jodie's counsel did not show Dr. Burgess the 2010 draft report at his deposition.

[¶13.] At trial, Jodie's counsel attempted to cross-examine Dr. Burgess by comparing the 2010 draft report to the version of the report contained in Jodie's RCMC medical records in an apparent effort to demonstrate that, because the draft report contained the "cc" notation, Dr. Burgess had seen it. However, neither of the draft reports were admitted as evidence, and the circuit court sustained the Appellees' objection for lack of foundation.

[¶14.] After the defense rested, Jodie's counsel sought to offer rebuttal testimony from the two radiologists who prepared the reports which Dr. Burgess denied ever seeing. According to an impromptu offer of proof by Jodie's counsel, the radiologists would testify that their draft reports listed Dr. Burgess as receiving acopy through a "cc" reference. Jodie's counsel did not produce affidavits from the two radiologists, and they were not present in court.4

[¶15.] The circuit court denied Jodie's request to offer the rebuttal testimony, reasoning that Jodie's counsel knew there were foundation issues associated with the draft reports from the two radiologists well in advance of trial. Therefore, in the court's view, Jodie's counsel should have sought to introduce the exhibits with the proper foundation in Jodie's case-in-chief in order to then discuss the records with Dr. Burgess during his cross-examination. Doing so would have removed the evidentiary impediment and allowed the presentation of the draft report evidence during the principal evidentiary portion of the case, as Jodie had contemplated.

[¶16.] We find no abuse of discretion in the circuit court's decision to exclude the proffered testimony of the radiologists and question whether it was rebuttal evidence at all. It appears from the record that Jodie's counsel originally planned to use the radiologists' draft reports during Dr. Burgess' cross-examination to suggest he had seen the draft reports showing the mediastinal mass had grown, not as rebuttal evidence. Prior to trial, counsel for the Appellees anticipated this and specifically advised at the pretrial conference that the Appellees would not stipulate to the authenticity of the draft reports. Although they agreed that all of Jodie's other medical records could be admitted without foundation, Appellees' counsel indicated at the pretrial conference that they were unwilling to accede to theadmission of the draft reports at trial because they were not included in RCMC's official medical records, and counsel expressed uncertainty regarding their origin.

[¶17.] However, at trial, Jodie's ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT