Lita St. John v. Peterson

• Decision Date: 14 September 2011
• Docket Number: No. 25772.,25772.
• Citation: 804 N.W.2d 71,2011 S.D. 58
• Parties: Lita ST. JOHN, Plaintiff and Appellant,v.Linda PETERSON, M.D., Defendant and Appellee.
• Court: South Dakota Supreme Court

804 N.W.2d 71

2011 S.D. 58

Lita ST. JOHN, Plaintiff and Appellant,

v.Linda PETERSON, M.D., Defendant and Appellee.

No. 25772.

Supreme Court of South Dakota.

Argued on May 25, 2011.Decided Sept. 14, 2011.

Thomas L. Sannes, Gordon P. Nielsen of Delaney, Vander Linden, Delaney, Nielsen & Sannes, PC, Webster, South Dakota, Attorneys for plaintiff and appellant.Reed Rasmussen of Siegel, Barnett and Schutz, LLP, Aberdeen, South Dakota, Attorneys for defendant and appellee.GILBERTSON, Chief Justice.

[¶ 1.] Lita St. John sued Dr. Linda Peterson alleging medical malpractice in repairing a vesicovaginal fistula. The jury entered a verdict for Dr. Peterson. St. John appeals, arguing that the trial court erred in excluding evidence of other cases where Dr. Peterson had failed to repair vesicovaginal fistulas. We reverse and remand.

FACTS

[¶ 2.] Dr. Peterson was treating St. John for stress incontinence and menstrual problems. In May 2006, Dr. Peterson performed a hysterectomy on St. John. The parties agree that the hysterectomy was medically necessary. Within two weeks of the hysterectomy, St. John began experiencing uncontrollable urination. On May 24, 2006, Dr. Peterson diagnosed St. John with a vesicovaginal fistula.¹ A vesicovaginal fistula is “an abnormal fistulous tract extending between the bladder and the vagina that allows the continuous involuntary discharge of urine into the vaginal vault.” John Spurlock, Medscape Reference, http:// emedicine. medscape. com/ article/ 267943– overview (last visited September 8, 2011).

[¶ 3.] On June 9, 2006, Dr. Peterson attempted to repair St. John's fistula utilizing what she called a “Latzko” procedure. Her attempt failed and the leaking continued. Dr. Peterson again attempted to repair the fistula by way of a vaginal stitch on June 14 without utilizing any anesthetic. The attempt was not finished because St. John could not tolerate the pain. On June 20, Dr. Peterson tried a vaginal stitch again, this time with an epidural. The stitch failed. Dr. Peterson's fourth and final attempt to repair the fistula, again using the “Latzko” procedure, was made on July 13. It too failed. St. John's fistula was eventually repaired by another physician using traditional techniques, not the “Latzko” procedure.

[¶ 4.] St. John and three other women sued Dr. Peterson. They alleged that they were injured when Dr. Peterson performed hysterectomies that caused vesicovaginal fistulas. They further alleged that Dr. Peterson was negligent and her efforts to repair the fistula deviated from the standard of care. The trial court severed the claims after finding that there would be undue prejudice against Dr. Peterson if all four cases were presented to the jury at the same time.

[¶ 5.] Before trial, Dr. Peterson made a motion in limine to prevent St. John from introducing testimony of evidence of prior claims or other lawsuits brought against her. The motion was granted by the trial court. After a three-day trial in November 2009, the jury was unable to reach a verdict.

[¶ 6.] Another trial was scheduled for August 2010. Before this second trial, St. John's counsel requested clarification of the trial court's grant of the motion in limine from the first trial. St. John wanted to be able to question Dr. Peterson about her experience repairing vesicovaginal fistulas. The trial court again granted Dr. Peterson's motion. By written order on August 16, 2010, the trial court ordered that “[St. John] is prohibited from offering any testimony or evidence concerning other lawsuits or claims brought against [Dr. Peterson] and the facts involved in those other lawsuits and claims.... [St. John] is prohibited from offering any testimony or evidence regarding [Dr. Peterson's] treatment of other patients for vesicovaginal fistulas.”

[¶ 7.] At the pretrial hearing, St. John also asked the court if she would be allowed to ask Dr. Peterson: “Have you had problems with this procedure in the past? Yes or no.” The trial court prohibited this question because “whether or not there's been problems in the past still doesn't provide evidence of whether there was a problem in this case.” In doing so, St. John argues that the trial court improperly expanded Dr. Peterson's motion in limine.

[¶ 8.] At trial, St. John made an offer of proof of testimony by expert witness Dr. Arnold Wharton in which he discussed his review of some of the medical records for other patients treated by Dr. Peterson.² Dr. Wharton testified that he had reviewed the records of the other three women who were co-plaintiffs with St. John before the cases were severed. He testified that all four women developed fistulas while under Dr. Peterson's care within 18 months of each other. Dr. Peterson attempted to repair each woman's fistula, but failed on all four. Dr. Wharton was asked, “in terms of her competency and fixing holes in the bladder once they've been caused, does the fact that she's had multiple attempts to fix them that have failed give you an impression one way or the other as to whether she knows how to do that?” He responded, “Yeah. It simply tells me that this doctor really had no idea what she's doing or how to repair a fistula appropriately and following standard principle techniques that's well-known throughout the United States.”

[¶ 9.] The second trial was held in August 2010. The jury found in favor of Dr. Peterson. St. John raises one issue on appeal:

Whether the trial court abused its discretion in precluding evidence regarding Dr. Peterson's experience with similar medical procedures.

STANDARD OF REVIEW

[¶ 10.] “The trial court's 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.” Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10, 756 N.W.2d 345, 350 (quoting Kaiser v. Univ. Physicians Clinic, 2006 S.D. 95, ¶ 29, 724 N.W.2d 186, 194). “An evidentiary ruling will not be overturned unless error is demonstrated and shown to be prejudicial error.” Novak v. McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912 (quoting State v. Smith, 1999 S.D. 83, ¶ 39, 599 N.W.2d 344, 353).

ANALYSIS

[¶ 11.] Before the first trial, the trial court granted Dr. Peterson's motion to sever. The trial court found that: 1) “[t]he four cases involve different medical diagnoses and issues”; 2) “[t]here has been no showing that the testimony of each of the Plaintiffs would be admissible at the trials of the other Plaintiffs”; and, 3) “judicial economy which might be promoted by a joint trial is outweighed by the potential prejudice that would be suffered by [Dr. Peterson] should the four cases be tried together.” Before the second trial, in granting Dr. Peterson's motion to exclude evidence or testimony concerning other lawsuits or claims brought against Dr. Peterson, the trial court stated that it had severed the trials to avoid the possibility of testimony from one case affecting the other cases:

[T]he [c]ourt first addressed this issue of the four pending cases when the Motion to Sever was brought and the [c]ourt did grant that motion because of concern ... that there would be undue prejudice against [Dr. Peterson] in presenting all four cases to the jury at the same time.... The issue is whether or not Dr. Peterson committed malpractice as concerns Lita St. John. And whether or not there are other claims of malpractice from other patients isn't necessarily probative of what happened or didn't happen in this case.... [W]hile there may be some relevancy in other procedures conducted by Dr. Peterson, that doesn't appear to the court that there is sufficient relevancy to outweigh the prejudice that would be caused. [I]t would appear that allowing [St. John] to inquire of other patients or actions taken with other patients ... is simply going to lead back to the same issue that the [c]ourt intended to avoid by severing the trials initially.... It does leave open the possibility for some evidence to be introduced as impeachment evidence [i]f the [c]ourt's approval is granted.... But as to the other patients who are involved in lawsuits at this time, the court doesn't believe that there is—sufficient relevancy to overcome the prejudice that would be caused by the introduction of that evidence.

In its written order before the first trial, the trial court stated that: “[s]hould [St. John] seek to present any evidence regarding other claims against [Dr. Peterson] as impeachment evidence, [St. John's] counsel is instructed to bring the matter before the [c]ourt prior to offering any such evidence.” This written order was referenced and clarified before the first trial.

[¶ 12.] “For evidence to be admitted during trial, it first must be found to be relevant. Once the evidence is found to be relevant, it is admissible unless it is specifically excluded.” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 30, 764 N.W.2d 474, 484. “ ‘Relevance’ and ‘admissibility’ are separate concepts.” Id. ¶ 43, 764 N.W.2d at 487. We analyze each in turn.

Relevance

[¶ 13.] Relevance is defined by SDCL 19–12–1 (Rule 401). “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19–12–1 (Rule 401). As we have previously noted, “Rule 401 uses a lenient standard for relevance. Any proffered item that would appear to alter the probabilities of a consequential fact is relevant, although it may be excluded because of other factors.” Supreme Pork, 2009 S.D. 20, ¶ 46, 764 N.W.2d at 488 (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 401.04[2][c] ( Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2008)).

[¶ 14.] It is unclear from the record whether the trial court found St. John's proffered...