Martinmaas v. Engelmann, No. 20953-20955.

CourtSupreme Court of South Dakota
Writing for the CourtMILLER, Chief Justice.
PartiesAudra K. MARTINMAAS, n/k/a Audra Martinmaas Sparks, Plaintiff and Appellee, v. Gary ENGELMANN, Defendant and Appellant. Nancy and Greg Froning, Plaintiffs and Appellees, v. Gary Engelmann, Defendant and Appellant. Natalie and Brian Bertsch, Plaintiffs and Appellees, v. Gary Engelmann, Defendant and Appellant.
Decision Date28 June 2000
Docket Number No. 20953-20955.

612 N.W.2d 600
2000 SD 85

Audra K. MARTINMAAS, n/k/a Audra Martinmaas Sparks, Plaintiff and Appellee,
v.
Gary ENGELMANN, Defendant and Appellant.
Nancy and Greg Froning, Plaintiffs and Appellees,
v.
Gary Engelmann, Defendant and Appellant.
Natalie and Brian Bertsch, Plaintiffs and Appellees,
v.
Gary Engelmann, Defendant and Appellant

Nos. 20953-20955.

Supreme Court of South Dakota.

Argued January 13, 2000.

Decided June 28, 2000.


612 N.W.2d 603
A. Russell Janklow, Ronald A. Parsons, Jr. of Johnson, Heidepriem, Miner, Marlow, and Janklow, Sioux Falls, SD, and Sheila S. Woodward of Johnson, Heidepriem, Miner, Marlow, and Janklow, Yankton, SD, Attorneys for plaintiffs and appellees

Reed Rasmussen of Siegel, Barnett and Schutz, Aberdeen, SD, Attorneys for defendant and appellant.

MILLER, Chief Justice.

[¶ 1.] In this appeal we affirm jury verdicts in three consolidated medical malpractice actions against a former physician. We hold that for tort liability purposes, sexual misconduct falls within the definition of malpractice. We also see no error in the consolidation of these actions, in permitting access to hearing transcripts on defendant's application for re-issuance of a medical license, or in permitting comments that defendant was no longer a physician.

FACTS

[¶ 2.] This appeal involves former physician Gary Engelmann of Miller, South Dakota. On July 1, 1994, while Engelmann was conducting a pelvic examination, the patient1 allegedly sat up and noticed his exposed penis. She ran from the examination room and later filed rape charges, claiming Engelmann had inserted his penis inside her vagina during the examination. Soon after this incident, other alleged victims came forward with similar stories. Included among them were Audra Martinmaas, Natalie Bertsch and Nancy Froning. [hereinafter Martinmaas, Bertsch, Froning, or collectively, "Plaintiffs"]

[¶ 3.] Engelmann denied the rape allegations. He originally entered an Alford plea (whereby he pled guilty while maintaining his innocence) to the charges, but later withdrew it.2 After the rape charges were initiated, Engelmann voluntarily surrendered his medical license. He went to trial and was acquitted. After his acquittal, Engelmann sought to have his medical license returned. The South Dakota Board of Medical and Osteopathic Examiners refused, stating that certain gynecological examinations performed by Engelmann were performed in a manner constituting "gross incompetence" and "unprofessional conduct."

[¶ 4.] In addition to the criminal charges stemming from Engelmann's actions, Martinmaas, Bertsch, and Froning each filed separate civil suits. Finding common factual and legal issues among the cases, the trial court consolidated them for trial.

612 N.W.2d 604
The complaints originally filed alleged both negligence and intentional torts. However, the intentional tort allegations were dropped prior to trial, and the trial proceeded only on claims of professional negligence and negligent infliction of emotional distress. The negligence claims were based on two separate theories: utilization of improper positions, procedures, and methods, and engaging in improper and inappropriate sexual contact. The individual facts of each case are presented as follows

[¶ 5.] Bertsch. Bertsch saw Engelmann for a gynecological exam on February 28, 1994. She testified that during the examination, Engelmann told her he was going to use a procedure called a uterine massage in order to obtain a sample of some suspicious discharge. This procedure allegedly involved the insertion of some gauze into her vagina along with some massaging back and forth, both externally on her lower abdomen and inside her vagina. Bertsch claimed that the procedure lasted three to four minutes, and during that time she felt an in-and-out motion, as if she were having sex. She also noticed Engelmann's breathing was irregular and his eyes were glassy. She related the experience to her husband immediately after the exam.

[¶ 6.] The next day, Bertsch told a female co-worker about the incident. The co-worker told Bertsch that she had the same experience during a gynecological exam by Engelmann. Shortly thereafter, Bertsch learned she was pregnant. Fearing Engelmann might be the father of the child, she and her husband arranged for a paternity test, which confirmed that Bertsch's husband was the child's father. Other than her husband and the co-worker, Bertsch did not discuss this incident with anyone until she spoke to another doctor at the clinic on July 11, 1994, and to law enforcement on July 27, 1994.

[¶ 7.] As a result of this incident, Bertsch claimed to have experienced significant anxiety and emotional distress. Between May 1995 and May 1997, she attended nine professional counseling sessions. According to her husband, the incident had a negative effect on their marriage.

[¶ 8.] Engelmann denied ever having inserted his penis into Bertsch's vagina. He claimed that because of the nature of Bertsch's exam, he did not intend to insert a speculum. However, after Bertsch allegedly expressed concern over some discharge, he decided to obtain a sample. Engelmann claimed he used a piece of gauze to obtain the sample, rather than inserting the speculum, because he believed the instrument was uncomfortable for his patients.

[¶ 9.] Martinmaas. Martinmaas' alleged inappropriate examination took place on January 20, 1994. According to her testimony, Engelmann told her that he needed to conduct a uterine massage with a piece of gauze in order to collect a sample of discharge discovered during the exam. She claims that while he was collecting the sample, which took approximately two to three minutes, she felt him moving back and forth and believed he was having sex with her. She later told her boyfriend and her mother of her belief, but told no one else until reporting it to law enforcement on August 30, 1994.

[¶ 10.] As a result of this incident, she claimed to have experienced nightmares, depression and paranoia. She received counseling in early 1995 and again from October 1996 to October 1998. In addition to the psychological effects she suffered, Martinmaas reportedly felt very uncomfortable in Miller because of the town's reaction to the entire incident. As a result, her wedding was held in another town.

[¶ 11.] Engelmann could not recall whether he had used the "gauze procedure" on Martinmaas, but denied ever inserting his penis inside her. Engelmann later acknowledged the "gauze procedure" was one he made up. He had never seen

612 N.W.2d 605
anyone perform it, it was not taught in medical school, nor had he ever read about it in any medical literature

[¶ 12.] Two physicians called as expert witnesses also testified to the dubiousness of the gauze procedure. One testified that he was familiar with the "uterine massage" procedure, but had only used it to stop unusually heavy hemorrhaging after the delivery of a baby when a woman's uterus failed to tighten. Furthermore, the physician said he had never heard of using gauze to collect a sample from the vagina. Such a procedure would not only be uncomfortable to the patient, but any attempt to alleviate the discomfort by applying lubricant to the gauze or the fingers would contaminate the sample. In the physician's opinion, such a method of collecting a sample would fall below the appropriate standard of care. The other physician corroborated the first physician's testimony, adding that any procedure to collect a sample which lasted three to four minutes would fall below the standard of care, especially when combined with the questionable "gauze procedure."

[¶ 13.] Froning. Engelmann performed pelvic exams on Froning on two occasions, November 9 and December 13, 1993. In order to facilitate the exam, he asked her to assume a position on her hands and knees, called the knee-chest position. In this position, her "rear end" stuck up in the air and her gown fell down over her shoulders leaving her essentially naked. The use of this unusual procedure was not documented in Froning's medical records. She claims that being examined in the knee-chest position was unnecessary and caused her extreme embarrassment and humiliation.

[¶ 14.] As a result of this experience, Froning claimed to have suffered depression and felt uncomfortable about going to Miller. She received counseling between October 1994 and March 1997, and claimed the incident with Engelmann caused memories of childhood sexual abuse to re-surface.

[¶ 15.] Engelmann explained he used the knee-chest position in order to get a better view of Froning's cervix and to palpate an ovary. He denied asking her to assume this position for any deviant sexual purpose. However, the two physicians called as expert witnesses refuted Engelmann's justification for using the position. One doctor who had performed over 30,000 pelvic exams in his 34 years of practice testified that he had never used such a position on a patient. He had seen it described in some texts, but understood that it was only sometimes used with pregnant women to facilitate labor, not to facilitate an exam or for any other diagnostic purpose. Another physician provided essentially the same opinion, additionally testifying that there would be no medical reason to use the knee-chest position on a non-pregnant woman, and that the use of such a position would be unusual and should have at least been documented in the patient's records.

[¶ 16.] At the close of Plaintiffs' case-in-chief and at the close of all the evidence, Engelmann moved the court for a directed verdict, based on his contention that evidence presented related to intentional torts rather than negligence. The court denied both motions. This argument was also the basis for Engelmann's motion for judgment n.o.v., which was likewise denied.

[¶ 17.] The jury returned a verdict in favor of Plaintiffs, and each was awarded $450,000. Additionally, Bertsch's and Froning's...

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113 practice notes
  • State v. Fifteen Impounded Cats, No. 25408.
    • United States
    • Supreme Court of South Dakota
    • June 23, 2010
    ...(quoting In re Guardianship and Conservatorship for T.H.M. and M.M.M., 2002 SD 13, ¶ 7, 640 N.W.2d 68, 71 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611)) (additional citation omitted). "The intent of a statute is determined from what the Legislature said, rather th......
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...a statute is determined from what the legislature said, rather than what the courts think it should have said[.]'" Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quotation omitted). [¶ 17.] These rules create an insurmountable barrier to Sale Barn's argument. The statute fa......
  • Benson v. State, No. 23492.
    • United States
    • Supreme Court of South Dakota
    • January 24, 2006
    ...U.S. West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993)) (citations omitted). Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, [¶ 72.] In the instant case, we may not resort to these external resources to interpret the statute, as the words of SDCL......
  • Plains Commerce Bank v. Long Family Land & Cattle Co., No. CIV 12–3021–RAL.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 28, 2012
    ...Fed. Jury Prac. & Instr. § 106:01 (6th ed.) (referring to this rule as the “general verdict rule”); but see Martinmaas v. Engelmann, 612 N.W.2d 600, 615 (S.D.2000) (Konenkamp, J., concurring) (calling the federal rule the “two-issue rule”). The underlying rationale for the approach followed......
  • Request a trial to view additional results
113 cases
  • State v. Fifteen Impounded Cats, No. 25408.
    • United States
    • Supreme Court of South Dakota
    • June 23, 2010
    ...(quoting In re Guardianship and Conservatorship for T.H.M. and M.M.M., 2002 SD 13, ¶ 7, 640 N.W.2d 68, 71 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611)) (additional citation omitted). "The intent of a statute is determined from what the Legislature said, rather th......
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...a statute is determined from what the legislature said, rather than what the courts think it should have said[.]'" Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quotation omitted). [¶ 17.] These rules create an insurmountable barrier to Sale Barn's argument. The statute fa......
  • Benson v. State, No. 23492.
    • United States
    • Supreme Court of South Dakota
    • January 24, 2006
    ...U.S. West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993)) (citations omitted). Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, [¶ 72.] In the instant case, we may not resort to these external resources to interpret the statute, as the words of SDCL......
  • Plains Commerce Bank v. Long Family Land & Cattle Co., No. CIV 12–3021–RAL.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • December 28, 2012
    ...Fed. Jury Prac. & Instr. § 106:01 (6th ed.) (referring to this rule as the “general verdict rule”); but see Martinmaas v. Engelmann, 612 N.W.2d 600, 615 (S.D.2000) (Konenkamp, J., concurring) (calling the federal rule the “two-issue rule”). The underlying rationale for the approach followed......
  • Request a trial to view additional results

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