Ronan v. Sanford Health

• Decision Date: 01 February 2012
• Docket Number: No. 25813.,25813.
• Citation: 809 N.W.2d 834,2012 S.D. 6
• Parties: Kevin RONAN, M.D. and Patricia Ronan, Plaintiffs and Appellants, v. SANFORD HEALTH d/b/a Sanford Hospital, Sanford Clinic, Bradley E. Hruby, M.D., Wendell W. Hoffman, M.D., Richard D. Hardie, M.D., and David A. Thomas, M.D., Defendants and Appellees.
• Court: South Dakota Supreme Court

2012 S.D. 6

809 N.W.2d 834

Kevin RONAN, M.D. and Patricia Ronan, Plaintiffs and Appellants,

v.SANFORD HEALTH d/b/a Sanford Hospital, Sanford Clinic, Bradley E. Hruby, M.D., Wendell W. Hoffman, M.D., Richard D. Hardie, M.D., and David A. Thomas, M.D., Defendants and Appellees.

No. 25813.

Supreme Court of South Dakota.

Argued Oct. 3, 2011.Decided Feb. 1, 2012.

Michael A. Henderson, Stephen C. Landon of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

Reed Rasmussen, Jeff L. Bratkiewicz of Siegel, Barnett & Schutz, LLP, Aberdeen, South Dakota, Attorneys for defendants and appellees.

GILBERTSON, Chief Justice.

[¶ 1.] A doctor and his wife filed suit against Sanford Health and several of its treating physicians (collectively “Defendants”) alleging medical malpractice. The jury entered a verdict for Defendants. The plaintiffs appeal two evidentiary rulings. We affirm.

FACTS

[¶ 2.] In 2006, Dr. Kevin Ronan was an anesthesiologist practicing in Sioux Falls, South Dakota. Dr. Ronan vacationed in Phoenix, Arizona with friends from February 21—26, 2006. On the evening of March 8, 2006, Dr. Ronan began to feel ill. The next day he went to see his physician, who suspected Dr. Ronan had the flu.

[¶ 3.] Dr. Ronan's condition worsened and he went to the emergency room on March 10. He was seen by various physicians, including Dr. Bradley E. Hruby. Dr. Ronan was admitted to the hospital and given antibiotics. He was referred to a specialist in infectious diseases. The specialist's diagnosis recognized that Dr. Ronan might have coccidioidomycosis (cocci), or “valley fever.” Cocci is a fungal disease endemic in the southwestern United States. ¹ The specialist was unable to confirm the diagnosis, as tests for cocci often come back negative during the first few days of an infection.

[¶ 4.] Despite his failure to significantly improve, Dr. Ronan was released from the hospital. Dr. Ronan continued to suffer high fevers, chills, headaches, chest pains, rashes, and neck stiffness.

[¶ 5.] Throughout March, Dr. Ronan was referred to more physicians, including another infectious disease specialist, Dr. Wendell Hoffman. Despite repeated inquiries by the Ronans, Dr. Hoffman did not immediately order further diagnostic tests to determine if Dr. Ronan had cocci. Dr. Ronan's condition worsened and he began to develop breathing problems. After another visit to the emergency room, he was treated with steroids. His condition did not improve. Eventually, Dr. Richard Hardie, a pulmonologist, recommended a lung biopsy and ordered diagnostic blood tests. Dr. Ronan ultimately had a lung biopsy before the results of the blood tests returned.

[¶ 6.] On March 28, 2006, Dr. Hoffman informed the Ronans that the blood tests confirmed that Dr. Ronan had cocci. Since his diagnosis, Dr. Ronan has continued to have severe medical problems. Dr. Ronan and his wife filed suit against Defendants, alleging medical negligence in failing to properly and timely pursue a diagnosis. The Ronans also allege negligence in administering steroids to a patient with acute, undiagnosed, and untreated cocci. The jury returned a verdict in favor of Defendants.

[¶ 7.] On appeal, the issues presented are:

1. Whether the circuit court abused its discretion in excluding alleged statements made by employees of Defendants under SDCL 19–12–14.

2. Whether the circuit court erred in precluding the impeachment of a defense expert witness.

STANDARD OF REVIEW

[¶ 8.] “We afford broad discretion to circuit courts in deciding whether to admit or exclude evidence.” Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 409. “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.” St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74. “We review the circuit court's construction of statutes de novo.” People ex rel. J.L., 2011 S.D. 36, ¶ 4, 800 N.W.2d 720, 722.

ANALYSIS

[¶ 9.] 1. Whether the circuit court abused its discretion in excluding alleged statements made by employees of Defendants under SDCL 19–12–14.

[¶ 10.] On September 22, 2006, the Ronans met with two Sanford Health employees, Becky Nelson, Chief Operations Officer, and Jeannie Schwarting, Risk Manager. Patricia Ronan took notes at the meeting. Her notes indicate that Schwarting said, “I am so sorry we failed you” and “we let you down.” The notes also attribute several comments to both Nelson and Schwarting, including that “[Dr.] Hruby got the whole thing off on the wrong track and it snowballed” and that the situation was an example of how things can go “when people don't do their jobs.” ² Defendants conceded at oral argument that the notes were properly admitted for the court to rule on the issue.

[¶ 11.] At the pretrial hearing, Defendants noted that the Ronans had listed Nelson and Schwarting as witnesses. Defendants argued that evidence of this meeting was inadmissible under SDCL 19–12–14. SDCL 19–12–14 provides:

No statement made by a health care provider apologizing for an adverse outcome in medical treatment, no offer to undertake corrective or remedial treatment or action, and no gratuitous act to assist affected persons is admissible to prove negligence by the health care provider in any action for damages for personal injury or death alleging malpractice against any health care provider. Nothing in this section prevents the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making such statement.³

This statute was adopted in 2005. This is the first opportunity this Court has had to examine this statute.

[¶ 12.] The circuit court took the issue under advisement. Immediately before trial, the court concluded the evidence concerning the September 2006 meeting was inadmissible. The court reasoned that the notes went to the issue of negligence, which was specifically prohibited under the statute. The court also indicated that at that pretrial stage of the proceedings, the court was not aware if the notes were really being offered under the impeachment exception because the court did not know what was supposed to be impeached.

[¶ 13.] On appeal, the Ronans argue that not all the statements from the meeting fall within the scope of SDCL 19–12–14. In other words, not all the statements are “apologizing for an adverse outcome in medical treatment,” an “offer to undertake corrective or remedial treatment or action,” or a “gratuitous act to assist affected persons.” SDCL 19–12–14. Defendants respond that this argument was waived because it was not raised at the lower level. Alternatively, Defendants assert that the statements in the notes were properly excluded under SDCL 19–12–14.

[¶ 14.] “Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level.” State v. Gard, 2007 S.D. 117, ¶ 15, 742 N.W.2d 257, 261. “The trial court must be given an opportunity to correct any claimed error before we will review it on appeal.” Id. The Ronans have not directed us to a location in the record where this argument was raised below. In reviewing the record, we cannot find a ruling by the circuit court on this issue. It appears that this issue was waived.

[¶ 15.] Moreover, even if this argument was not waived, there was no offer of proof that provides factual context to demonstrate that the statements should not have been excluded under SDCL 19–12–14. Although the notes were provided to the court, there is no context to understand them. ⁴ The Ronans did not offer their own testimony regarding the meeting. Instead, the Ronans' offers of proof were testimony from Schwarting and Nelson. When questioned, however, neither Schwarting nor Nelson could recall making the statements in Patricia Ronan's notes. Schwarting and Nelson characterized the meeting as a time for the Ronans to discuss Dr. Ronan's clinical course. The Ronans failed to show that the statements did not fit within SDCL 19–12–14. Therefore, even if the issue was not waived, the Ronans did not demonstrate that the circuit court erred in excluding the statements under SDCL 19–12–14.

[¶ 16.] The Ronans also argue that the statements are admissible as “admissions against interest for purposes of impeachment” under the final sentence of SDCL 19–12–14. That sentence provides: “Nothing in this section prevents the admission, for the purpose of impeachment, of any statement constituting an admission against interest by the health care provider making such statement.” (Emphasis added.) There is, however, no dispute that the Ronans' offers of proof were made in their case-in-chief when there was no defense evidence to impeach; and Schwarting and Nelson were not called as rebuttal witnesses. Nevertheless, the Ronans assert that they were entitled, during their case-in-chief, to use Schwarting's and Nelson's “admissions” in the notes to impeach the Defendants' “general position and defenses.”

[¶ 17.] Concededly, statements of witnesses may be admissible as admissions against interest. See SDCL 19–16–32 (Rule 804(b)(3)). They may also be admissible as admissions of a party opponent. See SDCL 19–16–3 (Rule 801(d)(2)). But these rules only govern their substantive admissibility as hearsay, and the last sentence of SDCL 19–12–14 imposes an additional restriction on the use of health care apology statements. They may only be used for the purpose of impeachment. See id. And, to admit extrinsic evidence of statements for purposes of impeachment, the proponent must comply with SDCL 19–14–25 (Rule 613(b)). Under that rule, the (“[e]xtrinsic evidence of a prior inconsistent statement by a witness is [generally] not admissible unless the witness is afforded an opportunity to explain or deny the same....”). See also 4 ...