Sander v. Geib, Elston, Frost Professional Ass'n

Citation506 N.W.2d 107
Decision Date15 September 1993
Docket Number17818,17804,17803,Nos. 17763,17769,17811,s. 17763
PartiesTimothy J. SANDER and Rebecca Lee Holloway, Co-Executors of the Estate of Kimberlee J. Sander, Deceased, Plaintiffs and Appellants, v. The GEIB, ELSTON, FROST PROFESSIONAL ASSOCIATION d/b/a Clinical Laboratory of the Black Hills; J.A. Rud, M.D., Defendants and Appellants.
CourtSupreme Court of South Dakota

Glen H. Johnson of Johnson Huffman P.C., Rapid City, SD, Timothy J. Vander Heide of Bakewell, Hauge & Vander Heide, Custer, SD, for plaintiffs and appellants.

William G. Porter and Lonnie Braun of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, SD, for defendants and appellants.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, SD, for amicus curiae State of S.D.

Gary D. Jensen of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, for amicus curiae South Dakota Trial Lawyers Ass'n.

MILLER, Chief Justice.

This case arises out of a medical malpractice action initiated by Kimberlee Sander (Kim) against a clinical laboratory and certain of its employees. A jury found against the defendants and awarded damages of $3.7 million, which the parties had stipulated should be entered only against the laboratory, a professional association under South Dakota law. The trial court applied SDCL 21-3-11, which places a cap on the medical malpractice damages which may be awarded to a plaintiff. Based on that statute, the jury award was reduced to $1 million and judgment was entered thereon. By way of plaintiffs' notices of appeal and defendants' notices of review, this Court is called upon to examine the conduct of the trial below and to determine the scope, application and constitutionality of SDCL 21-3-11. We find no reversible error in the conduct of the trial. We reverse the trial court's application of SDCL 21-3-11 to cap the damages awarded against the professional association and reinstate the jury's award of $3.7 million. We do not reach the constitutional issues.


Kim was just three days past her thirty-fourth birthday when she died of cancer of the cervix on September 5, 1988. She had lived near Custer, South Dakota, with her husband and children ages 15, 12 and 8. During the thirteen years prior to Kim's death, her medical needs had been attended to primarily by Dr. Dennis Wicks, a Custer area general practitioner. Part of her care included routine gynecology examinations which included pap smears. Kim had pap smears taken in Dr. Wicks' office in 1977, 1978, twice in 1980, and again in 1984, 1986 and 1987. All of these pap smears were submitted for evaluation to The Geib, Elston, Frost Professional Association, d/b/a Clinical Laboratory of the Black Hills (Clinical Lab).

Clinical Lab processes approximately 18,000 pap smear slides per year. Its usual procedure during the time relevant to this appeal was to have a clerk assign each smear a number upon its receipt. A stain was then applied and one of two cytotechnologists 1 would "screen," or examine, each slide under a microscope. In the event the cytotechnologist determined there were abnormal cells present, the sample was marked for later review by a pathologist. If the cytotechnologist felt the abnormality was significant, an additional mark was placed across a label affixed to the slide. At best, only one in ten pap smears screened as "normal" by the cytotechnologists was actually viewed by a pathologist. 2 All pap smears, whether or not actually viewed by a pathologist, were reported out over the signature of one of Clinical Lab's pathologists.

Clinical Lab's cytology reports 3 classified the cells discovered and its pathologists made a recommendation to the patient's physician depending upon the classifications made. The recommendation ranged from a low of "no recommendation" for a Class I screen to (by agreement among Clinical Lab's pathologists) placing a telephone call to the patient's physician in order to quickly obtain additional information. In the event its highest classification was screened (a Class IV), Clinical Lab's pathologists would also recommend a biopsy. Class IV meant malignant cells were present. Occasionally, lower classifications would result in a telephone call to the patient's physician. Clinical Lab frequently received biopsies back on patients following all screenings other than Class I screenings.

Each analysis by Clinical Lab of Kim's pap smears, except its last one in 1987, resulted in a report of "Class I Negative." This classification meant no abnormal/atypical cells were found in the examined pap smear. Clinical Lab's 1987 pap smear reported a "Class IIB," which was suggestive of mild to moderate dysplasia. In other words, pre-malignant cellular changes were present.

In 1986, Clinical Lab included an additional notation on its "Class I Negative" cytology report to Dr. Wicks, Kim's physician, that there was "moderate inflammation" present. Ordinarily, this "Class I Negative" pap smear would not have been viewed by a pathologist unless by chance it happened to be randomly viewed for purposes of quality control. However, it was the personal practice of Dr. James Rud, Clinical Lab's assigned pathologist at the time, to review all slides where "inflammation" was noted by a cytotechnologist, regardless of whether abnormal cells were also marked for review. Dr. Rud looked at the slide only to determine the extent of "inflammation"; he did not look at the entire slide nor did he look for abnormal cells. Dr. Wicks was at that time treating Kim with antibiotics for an inflammation resulting from a puncture wound to her foot and felt those antibiotics would probably take care of the noted "inflammation" as well.

In September, 1987, Kim returned to Dr. Wicks with complaints of pelvic pain, erratic periods and tiredness. Dr. Wicks conducted a pelvic exam and was disturbed by the results. He could neither feel nor see Kim's cervix, could not feel her ovaries, and could not evaluate her uterus; the entire area was firm, irregular and nodular. He took a pap smear, which he sent to Clinical Lab, and immediately referred her to Dr. Ralph Heirigs, a Rapid City, South Dakota, gynecologist.

On September 17, 1987, Dr. Frost, rather than a cytotechnologist, screened and interpreted Kim's pap smear. In his report to Dr. Wicks, he recommended a biopsy as a result of what he determined was a "Class IIB" smear. At about the time Dr. Frost made his report, Dr. Heirigs examined Kim and took biopsies. These revealed squamous cell carcinoma. He then "staged" her cancer as "IIIB invasive," which meant her cancer had spread to her pelvic bones or lower one- third of her vagina. 4 He considered her chances of surviving the next five years to be only twenty-five percent. Dr. Heirigs referred Kim to Dr. Ronald Drummond, a radiation oncologist, who also staged Kim's cancer at "IIIB." He considered her chances of survival to be only twenty percent.

Dr. Drummond asked Clinical Lab to review Kim's 1986 pap smear. Upon re-examination, a pathologist and cytotechnologist from Clinical Lab reported, contrary to the original "Class I Negative" report to Dr. Wicks, that the 1986 smear showed "Class III" cells were present. This classification means cancer is either present or has not invaded, or that cellular changes are present which indicate that malignancy is highly likely.

At Dr. Drummond's request, Dr. Rud also re-examined Kim's 1986 pap smear. His new determination was that the smear contained "Class IIB" cells. This indicated there were mild to moderate dysplastic cells present. This was different, both from his own initial determination of "Class I Negative" and from the recent determination of the other pathologist from Clinical Lab.

When Kim's cancer was finally diagnosed in the fall of 1987, she initially underwent radiation therapy. She was then referred to the University of Minnesota to determine whether she was a viable candidate for radical treatment procedures. However, the cancer had spread and the procedures were not undertaken; Kim had no chance of surviving her cancer.

Clinical Lab was asked by the pathologists at the University of Minnesota to let them examine Kim's prior pap smears. Smears prior to 1984 were not available as Clinical Lab destroys "Negative" slides after three years. However, the smears from 1984, 1986 and 1987 were available and were sent. The interpretations of those slides by the University's pathologists differed significantly from those of Clinical Lab's pathologists. Regarding the 1984 pap smear, the University's pathologists diagnosed cellular changes which, under Clinical Lab's classification system, would be classified "Class IIB," not "Class I Negative" as Clinical Lab reported to Dr. Wicks. The University pathologists also upgraded the 1986 and 1987 pap smears and stated unequivocally that the 1987 pap smear contained malignant cells.

Kim started this lawsuit in July, 1988, ten months after she had been diagnosed with an advanced stage of cancer. Her claims alleged the failure of Clinical Lab and its pathologists to detect and report the presence of cellular changes in routine pap smears in sufficient time to prevent the spread of her cancer. Two months after filing this action, Kim died. After her death, the co-executors of her estate (her husband and sister) were substituted as plaintiffs (Sander). The complaint was amended to include a wrongful death claim in addition to a claim for Kim's pain, suffering and medical expenses.

Trial began October 15, 1991. At the close of the evidence, the trial court dismissed one of the defendants 5 and the remaining parties stipulated that any judgment against any other individual defendant would be entered only against Clinical Lab. The case then went to the jury, which found against Clinical Lab. Sander was awarded damages of $3.7 million.

Prior to the entry of judgment, Clinical Lab's counsel wrote the trial...

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