Jorgenson v. Vener

• Decision Date: 06 February 2002
• Docket Number: No. 21896.,21896.
• Parties: David JORGENSON and Laura Jorgenson, Plaintiffs and Appellants, v. Michael J. VENER, M.D., Defendant and Appellee.
• Court: South Dakota Supreme Court

640 N.W.2d 485

2002 SD 20

David JORGENSON and Laura Jorgenson, Plaintiffs and Appellants, v. Michael J. VENER, M.D., Defendant and Appellee.

No. 21896.

Supreme Court of South Dakota.

Argued November 16, 2001.

Reassigned December 21, 2001.

Decided February 6, 2002.

Daniel R. Fritz, Aberdeen, South Dakota, and James R. Welsh, Bradford, Coenen & Welsh, Omaha, Nebraska, Attorneys for plaintiffs and appellants.

Reed Rasmussen, Julia M. Dvorak of Siegel, Barnett and Schutz, L.L.P., Aberdeen, South Dakota, Attorneys for defendant and appellee.

SABERS, Justice (on reassignment).

[¶ 1.] David Jorgenson (Jorgenson) developed an infection in his lower right leg as a result of surgery to repair a shattered tibia and ankle. Jorgenson's attending physician, Dr. Michael Vener (Vener), did not discover the infection for approximately three months. Jorgenson sued Vener for medical malpractice under the loss of chance doctrine. The trial court granted summary judgment for Vener, Jorgenson appealed, and we reversed. Jorgenson v. Vener, 2000 SD 87, ¶ 24, 616 N.W.2d 366, 373 (Jorgenson I.) Now, Jorgenson pursues damages for the loss of a ten-fifteen percent chance that he could have saved his leg from amputation. The trial court granted summary judgment for Vener again, Jorgenson appeals again, and we reverse and remand for trial.

FACTS

[¶ 2.] On August 16, 1997, while visiting relatives in Wisconsin, Jorgenson jumped from a 7 foot high ledge, landing on a cement sidewalk. The impact shattered his right tibia and ankle. Jorgenson was taken to a nearby hospital where a doctor surgically inserted pins into the fractured bone and stabilized the injury with external fixators. After five days, Jorgenson was released from the hospital and returned home to Waubay, South Dakota.

[¶ 3.] Jorgenson continued treatment with Vener, a Watertown physician specializing in orthopedic surgery. On August 26, about one month after the surgery, Vener noticed some drainage around the pins in Jorgenson's leg and placed him on a week-long course of antibiotics. An open sore of about one and a half inches had developed on Jorgenson's lower right shin.

[¶ 4.] In late October, Jorgenson began feeling feverish. He also noticed drainage and a foul odor coming from the sore on his leg. Vener prescribed another course of antibiotics.

[¶ 5.] On November 10, 1997, Vener removed the external fixator. Approximately two weeks later, Jorgenson again noticed the drainage and foul odor coming from his open sore. This time, however, he could also see a portion of bone at the surface of the wound. Jorgenson immediately contacted Vener, who again prescribed a course of oral and topical antibiotics. Vener also recommended scheduling an appointment with a doctor in Fargo to determine whether a "free flap" procedure should be done "in order to salvage the limb."

[¶ 6.] Jorgenson opted, instead, to make an appointment at the Mayo Clinic in Rochester, Minnesota. On December 4, he was told that he had two alternatives concerning the treatment of his leg: (1) an attempted bone and skin graft, which would require two years of treatment with a sixty percent chance of success; or (2) an immediate amputation of the lower portion of Jorgenson's right leg. On December 9, 1997, Jorgenson underwent a below-the-knee amputation of his right leg.

[¶ 7.] Jorgenson and his wife subsequently filed a medical malpractice action against Vener for negligently failing to diagnose a chronic infection in the bone and negligently failing to refer Jorgenson to an infectious disease specialist. Jorgenson alleged that Vener's negligence caused the loss of a ten-fifteen percent chance that Jorgenson could have saved his leg.¹

[¶ 8.] On June 28, 1999, the trial court granted Vener's summary judgment motion on grounds that "the loss of chance doctrine is not compatible with South Dakota Law." As indicated, this Court reversed and remanded the case, for the first time recognizing a cause of action for loss of chance in South Dakota. Jorgenson I, 2000 SD 87 at ¶ 17, 616 N.W.2d at 371. On remand, the trial court again granted Vener's summary judgment motion, this time in response to Jorgenson's testimony that, given a ten-fifteen percent increase in his chance to save his leg, Jorgenson stated he would choose amputation. The trial court determined that Jorgenson had "abandoned any chance of saving his leg" by choosing amputation and was not entitled to collect on a loss of chance claim. Jorgenson appeals again and we reverse again.

STANDARD OF REVIEW

[¶ 9.] Our standard of review for summary judgment is well established:

Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 792(quoting SDCL 15-6-56(c)) (citations omitted). Thus, we independently review the record without being bound by the trial judge's factual assessments. Carpenter v. City of Belle Fourche, 2000 SD 55, ¶ 6, 609 N.W.2d 751, 756; Fritzel v. Roy Johnson Constr., 1999 SD 59, ¶ 7, 594 N.W.2d 336, 338; Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609.

[¶ 10.] WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT JORGENSON'S DEPOSITION TESTIMONY PRECLUDED A CAUSE OF ACTION FOR LOSS OF CHANCE.

[¶ 11.] This Court recognized a cause of action for loss of chance in Jorgenson I and reversed the trial court's grant of summary judgment. 2000 SD 87 at ¶ 17, 616 N.W.2d at 371. Vener now argues that Jorgenson is precluded from asserting a cause of action for loss of chance because he testified that, under the circumstances, he would have chosen amputation. Even if that statement were relevant and admissible to determine damages for loss of chance, it would not be sufficient to eliminate genuine issues of material fact.

[¶ 12.] The issue in this case is not whether Jorgenson's deposition testimony negates the possibility of a different outcome precluding his recovery on a loss of chance claim. Rather, the issue is whether Jorgenson should be given the opportunity to prove to a jury the amount of damages he suffered as a result of the doctor's negligence. To uphold the trial court's grant of summary judgment would effectively reverse our first Jorgenson decision because it defeats the purpose of adopting the loss of chance doctrine.

[¶ 13.] In Jorgenson I, this Court stated that "[t]he loss of chance doctrine involves the idea that a doctor, by doing something wrong, has decreased the patient's chance of recovery or survival." Id. at ¶ 12 (citing Margaret T. Mangan, Comment, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 SDLRev 279, 283 (1997)). A plaintiff may then be entitled to recover damages for this lost chance. Jorgenson has the right to prove the existence and value of his damages to a jury. Article VI § 6 of the South Dakota Constitution guarantees the right to trial by jury. Article VI § 6 provides: "[t]he right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy[.]" (emphasis added). "A jury determination of the amount of damages is the essence of the right to trial by jury[.]" In re Certif. of Questions of Law: Knowles v. United States, 1996 SD 10, ¶ 10, 544 N.W.2d 183, 187 (quoting Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 161 (Ala.1991)). Jorgenson should not be deprived of the opportunity to prove the value of such damages simply because of an after-the-fact statement. Accordingly, we reverse and remand for jury trial.

[¶ 14.] GORS, Acting Justice, concurs.

[¶ 15.] AMUNDSON, Justice, concurs specially.

[¶ 16.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, dissent.

AMUNDSON, Justice (concurring specially).

[¶ 17.] The issue in this case is whether Jorgenson had an opportunity for a better result during the time of his treatment by Vener. The New Mexico Supreme Court discussed the lost chance doctrine in Alberts v. Schultz and held as follows:

The injury is the lost opportunity of a better result, not the harm caused by the presenting problem. It is not the physical harm itself, but rather the lost chance of avoiding the physical harm.... [t]he causal connection between the negligence and the resultant injury must be medically provable.

The chance of a better result may be conceptualized as a window of time that existed before the malpractice took place; in that window of time the healthcare provider had an opportunity to timely implement proper medical treatments that would avoid or minimize the occurrence of the injury. Through negligent misdiagnosis, inappropriate therapy, or unnecessary delay, the window of time was closed. The act of malpractice may have immediately shut the window of time, or it may have caused a delay during which the window of time expired. The claim is not for the subsequent injury, but for the fact that it is now too late to do anything to avoid the injury. Correcting the problem is no longer possible....

Rather, the patient must present evidence that the harm for which he or she originally sought treatment—the presenting medical problem—was in fact made worse by the lost chance.

126 N.M. 807, 975 P.2d 1279, 1284-85 (N.M.1999).

[¶ 18.] In this case the plaintiff should be allowed to prove that his window of opportunity for a better result was closed due to negligent treatment, which in fact is shown to have made the...