Mousseau v. Schwartz
| Decision Date | 20 August 2008 |
| Docket Number | No. 24125.,No. 24109.,24109.,24125. |
| Parties | Diane MOUSSEAU, Plaintiff and Appellant, v. Steven SCHWARTZ, M.D., and, Steven Schwartz, M.D., P.C., d/b/a West River Neurosurgery & Spine, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
South Dakota, Attorneys for plaintiff and appellant.
Lonnie R. Braun, Timothy L. Thomas of Thomas Nooney Braun Solay & Bernard, LLP, Rapid City, South Dakota, Attorneys for defendants and appellees.
[¶ 1.] On November 15, 2002, Diane Mousseau (Mousseau) filed suit against 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 on February 12-15, 2006, in the South Dakota Seventh Judicial Circuit. The jury entered a verdict for Dr. Schwartz and on February 21, 2006, the trial court entered judgment on the verdict. We reverse and remand.
[¶ 2.] On June 5, 2001, Mousseau consulted with Dr. Schwartz, a Rapid City, South Dakota, neurosurgeon, about a problem she was having with pain in her back and lower extremities. Dr. Schwartz at that time was new to the practice of neurosurgery in Rapid City having only commenced his practice in June 2000, shortly after he was issued his license to practice medicine. Dr. Schwartz conducted an examination and diagnosed Mousseau with the following condition, as he testified to at trial:
I found that there was a severe degree of spinal stenosis1 at the L3-42 level with associated neuro foraminal stenosis,3 that being the tunnel the nerve roots traveled through. I found there was a moderate to severe degree of spinal stenosis at the next level down, which was L4-5, also, with foraminal stenosis, and I found some foraminal stenosis on the left at the lowest segment, the L5-S1 level and along with that a grade one spondylolisthesis at the L5-S1 level which was a slight slippage of the L5 vertebral body forward on the sacrum.
Based on his diagnosis, Dr. Schwartz testified that he made the following recommendation to Mousseau:
[B]ased on the severity of her pain, the duration of her symptoms, the severe limitation that she had with her walking and standing and the generalized discomfort that she had because of this that the treatment would be my recommendation which could consist of opening up those compressed areas and that was the laminectomy4 that I recommended, which was an L3-L4 and L5 laminectomy with foraminotomies5 which is opening up the tunnels that the nerve roots ran through....
Dr. Schwartz conducted the procedure on Mousseau the following day.
[¶ 3.] After experiencing some initial relief, Mousseau began having renewed pain in her back and lower extremities within two months of the surgery. On October 10, 2001, she underwent another examination. During the trial, Dr. Schwartz testified that he diagnosed her condition at that time as follows:
The findings noted ... that there was evidence of a Retrolisthesis6 of the L3 on L4 which appeared to increase from the flexion to the extension view by several millimeters. In addition, there was loss of the disk space height at this level with concomitant ... neuro foraminal stenosis. I noted that there was a slight spondylolisthesis, grade one, of L5 on S1 which appeared to be stable and did not move from flexion to extension and I gave my impression and that was instability demonstrated at the L3-4 level with disk space collapse.
On November 1, 2001, Dr. Schwartz performed a second surgery on Mousseau. He described the procedure as "an L3-4 redo, discectomy7 with posterior lumbar interbody fusion8 at L3-L4, L3-L4, pedicle screw fusion9 and [postero-] lateral autograft fusion."10
[¶ 4.] Mousseau, who testified that she continued to suffer back pain as well as pain and weakness in the lower extremities following the second surgery, filed a malpractice suit against Dr. Schwartz on November 15, 2002. At the February 12-15, 2006 trial, Mousseau presented evidence through the expert testimony of a Rapid City neurosurgeon, Dr. Larry Teuber, that Dr. Schwartz had failed to deliver the applicable standard of care in three ways.
[¶ 5.] First, Dr. Teuber testified that Dr. Schwartz failed to decompress spinal nerves in the L5-S1 vertebral segment, thereby leaving a stenosis condition in that location at the conclusion of the initial surgery on June 6, 2001. Second, Dr. Teuber stated that the November 1, 2001 fusion surgery was necessary because of the procedures that Dr. Schwartz performed on Mousseau on June 6. Dr. Teuber testified that the laminectomy performed at the L3-L4 vertebral segment on June 6, actually weakened the spine in that location with the predictable result that the L3 vertebra slid back in relation to the L4 vertebra resulting in a "clinically significant retrolisthesis" at that segment. Dr. Teuber further indicated that a complete diagnosis prior to surgery would have taken into account the need for fusion in addition to laminectomy at the L3-L4 segment. Dr. Teuber stated that this should have been discussed with Mousseau prior to the June 6 surgery and that she should have been advised that if the fusion was not performed during the initial surgery, it would have to be undertaken later.
[¶ 6.] Finally, Dr. Teuber testified that Dr. Schwartz breached the applicable standard of care when he excessively retracted Mousseau's spinal nerve roots during the November 1, 2001 fusion surgery, thereby causing nerve damage. Dr. Teuber stated that excessive manipulation of the nerve roots during the fusion surgery resulted from the increased difficulty in performing the procedure due to the growth of scar tissue around the affected nerves subsequent to the June 6 surgery. Dr. Teuber indicated that the nerve retraction injury was the avoidable result of not performing the L3-L4 fusion coincident with laminectomy on June 6, 2001, and thus, constituted a breach of the standard of care.
[¶ 7.] In a pretrial motion to exclude evidence of other malpractice claims against Dr. Schwartz, defense counsel acknowledged that Dr. Schwartz was the subject of "numerous claims" alleging malpractice. Two suits, filed by Bobbi Gay and Sharon Sowards,11 were specifically addressed in Mousseau's response to defense counsel's pretrial motion and at a pretrial motions hearing.12 Subsequent to the initiation of Mousseau's suit against Dr. Schwartz, the South Dakota State Board of Medical and Osteopathic Examiners (the "Board") brought disciplinary proceedings against him to address allegations of malpractice. On December 17, 2003, three and one half years after Dr Schwartz commenced his practice and two and one half years after his first surgery on Mousseau, the Board entered its "Stipulation On Agreed Disposition And Order Of Probation" (the Stipulation) in regard to the licensure of Dr. Schwartz. Therein, his license was placed on probationary status. As a condition of the probation, Dr. Schwartz was required to complete one year of "advanced clinical training" in neurosurgery and a minimum of three months in neuroradiology. His practice of medicine was restricted to only that required to fulfill his training requirement. Further conditions of his probation provided that for a period of five years, following the successful completion of his training, Dr. Schwartz was prohibited from solo practice, thereby limiting himself to a neurological group practice setting. The Stipulation also stated:
This Agreement for the disposition of the above entitled contested case is a mater of public record and the obligations of the Board with respect thereto shall be governed by the laws of South Dakota and current Board policy.
(Emphasis added). Moreover, the Stipulation provided that "the Board will report its disciplinary action to the National Practitioner Data Bank, the Healthcare Integrity and Protection Data Bank, and the Federation of State Medical Boards." The Board therein stated that the reason given for Dr. Schwartz's license probation was "Malpractice."
[¶ 8.] Prior to trial, Dr. Schwartz filed a motion to exclude the Stipulation evincing his licensure probation and the conditions thereon. Mousseau sought to admit the Stipulation as evidence that Dr. Schwartz lacked the necessary knowledge, skill and training to provide the applicable standard of care. Moreover, Mousseau sought to use the Stipulation to impeach Dr. Schwartz's testimony. The trial court granted Dr. Schwartz's motion and excluded the Stipulation.
[¶ 9.] The jury returned a verdict for Dr. Schwartz and Mousseau raises the following issue on appeal:
Whether the trial court abused its discretion by excluding the Board's order of probation and agreed stipulation, including sanctions and conditions imposed therein.
[¶ 10.] Kaiser v. Univ. Physicians Clinic, 2006 SD 95, ¶ 29, 724 N.W.2d 186, 194 (internal citations omitted).
[¶ 11.] Whether the trial court abused its discretion by excluding the Board's order of probation and agreed stipulation, including sanctions and conditions imposed therein.
[¶ 12.] Mousseau asserts that the trial court's decision to exclude the Stipulation and evidence about the status of Dr. Schwartz's licensure and conditions placed thereon constituted prejudicial error. Mousseau argues that, had she been able to use the Stipulation in her case-in-chief or to cross-examine Dr. Schwartz, the outcome of the trial would have likely been different. See Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419,...
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