Shamburger v. Behrens

Decision Date20 February 1986
Docket NumberNo. 14626,14626
Citation380 N.W.2d 659
PartiesElston SHAMBURGER and Signe Shamburger, Plaintiffs and Appellants, v. Clayton L. BEHRENS and Rapid City Regional Hospital, Inc., Defendants and Appellees.
CourtSouth Dakota Supreme Court

Donald R. Shultz and Steven J. Helmers of Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiffs and appellants.

William G. Porter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Clayton L. Behrens.

Thomas E. Simmons of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee Rapid City Regional Hosp., Inc.

MORGAN, Justice.

Plaintiffs Elston and Signe Shamburger (hereinafter Shamburgers collectively or Elston or Signe individually) appeal from a jury verdict rendered in favor of defendant Dr. Clayton Behrens (Behrens) in a medical malpractice action. Shamburgers also appeal from a summary judgment granted defendant Rapid City Regional Hospital, Inc. (Hospital). We affirm in part, reverse in part, and remand for new trial.

In March of 1980, Elston was hospitalized for diverticulitis. 1 Since this was Elston's third bout with diverticulitis, it was determined that colon surgery was necessary. Behrens performed surgery on Elston on April 24, 1980. Following surgery, Elston's condition continued to deteriorate. Between May 3 and May 5, 1980, Behrens and other physicians at Hospital were unable to pinpoint the cause of Elston's deterioration. On May 6, the doctors concluded that Elston had developed infectious abscesses at the point where his colon had been resected. Further surgery became necessary. On that same day, prior to surgery, Behrens was dismissed by Signe as Elston's surgeon. Signe alleges that she dismissed Behrens because she smelled alcohol on his breath.

Shamburgers later instituted this suit alleging, inter alia, negligent preoperative care, failure to adequately inform and disclose, negligent surgery and negligent postoperative care. Prior to trial, the trial court granted summary judgment in favor of Hospital. As noted above, following a jury trial, a verdict was rendered in favor of Behrens on all issues.

Initially, Shamburgers claim the trial court erred in refusing to allow them to place testimony before the jury concerning alcohol on Behrens' breath. Shamburgers contend that the testimony of three witnesses that they smelled alcohol on Behrens' breath was admissible on the issue of Behrens' negligence.

During discovery depositions, Shamburgers elicited testimony from three individuals that on two separate occasions Behrens had alcohol on his breath. A nurse testified that she smelled alcohol on Behrens' breath on May 3. Signe and another physician testified that they detected the odor of alcohol on Behrens' breath on May 6, just prior to Signe's discharge of Behrens. No other testimony was elicited concerning possible alcohol consumption by Behrens. Elston did not detect alcohol on Behrens' breath at any time.

Prior to trial, Behrens filed a motion in limine urging the trial court to issue a protective order barring any mention of alcohol on Behrens' breath during trial. In ruling on the motion, the trial court granted a protective order barring such testimony; finding that any allegation that alcohol consumption affected Behrens' performance was not supported by the facts and that in any event any marginal relevance of the evidence was substantially outweighed by its prejudicial effect.

The rulings of the trial court are presumptively correct; we have no duty to seek reasons to reverse. The party alleging error must show prejudicial error affirmatively from the record. See Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976). In making the ruling concerning the alcohol odor, the trial court relied upon SDCL 19-12-3. 2 In reviewing this order, we must determine whether the trial court abused its discretion. State v. Holland, 346 N.W.2d 302 (S.D.1984).

The trial court may exclude evidence under SDCL 19-12-3 if the evidence, as admitted, would provide the jury with an undue tendency to decide the case on an improper basis. See State v. Dunton, 396 A.2d 1001 (Me.1979) (construing Fed.R.Evid. 403, the statute upon which SDCL 19-12-3 is patterned).

The trial court found that there was no evidence that alcohol had any effect on diagnosis, treatment, preoperative or postoperative care. The Supreme Court of Montana considered alcohol use in a situation similar to this. Mydlarz v. Palmer/Duncan Const. Co., 682 P.2d 695 (Mont.1984). In Mydlarz, the court stated:

Evidence that [Behrens] might have been an alcoholic when the accident occurred may have some probative value regarding the cause of the accident. However, the indirect relevance of this evidence requires us to find that the probative value of the evidence is clearly outweighed by the prejudicial effect on [Behrens]. We find that the jury could have been misled by evidence indicating [Behrens] was an alcoholic and erroneously presume the accident was caused by such disease.

682 P.2d at 704. We agree with the Montana Court that the jury could have been misled concerning alcohol use. The trial court's refusal to admit this evidence did not hamper Shamburgers' efforts to show Behrens acted negligently. Therefore, we conclude the trial court did not abuse its discretion in granting Behrens' motion in limine.

Additionally, Shamburgers claim error in that they were not allowed to discover hospital records concerning Behrens' subsequent hospitalization for alcoholism treatment. Several months after Elston's surgery, Behrens was hospitalized for alcohol treatment. Shamburgers moved to produce the records of this treatment. The trial court denied this motion on two theories: (1) that the records were protected by the patient/physician privilege of SDCL 19-13-7 3 and (2) that the prejudice caused by exposing the treatment records outweighed their probative value.

First, we note that our discussion concerning the motion in limine could dispense with this issue also. See Mydlarz, supra. We believe, however, that the treatment records are also protected by the SDCL 19-13-7 privilege.

Shamburgers claim that the exception in SDCL 19-13-11 4 applies to Behrens' records. We disagree. "[SDCL 19-13-11] creates an exception to the [SDCL 19-13-7] privilege if the person for whom such privilege exists asserts a particular physical, mental, or emotional condition as an element of a claim or defense." Betty J.B. v. Division of Social Services, 460 A.2d 528, 531 (Del.1983) (emphasis added). Behrens did not assert his physical condition as an element of his defense. He simply denied he was negligent in the care of Elston. It is Shamburgers who attempt to place his physical condition into issue. The exception of SDCL 19-13-11 does not apply, and Behrens' treatment records are privileged under SDCL 19-13-7, and not discoverable.

Shamburgers also contend that the trial court erred in the giving of jury instruction number 7. 5 First, they claim that the "good faith error of judgment" language contained in the instruction confuses the jury by suggesting that no liability will attach to a physician if he acts in "good faith." In this regard, Shamburgers claim the instruction unduly burdens the plaintiff in a medical malpractice suit by requiring him to show the doctor acted in "bad faith."

In examining claims of incorrect jury instructions, the instructions must be considered as a whole to determine if error was committed. Wheeldon v. Madison, 374 N.W.2d 367 (S.D.1985). It is the burden of the appellant to show the instruction was prejudicial. Wheeldon, supra.

It appears that the basis for the "good faith error of judgment" language in this instruction rests in our decision, Block v. McVay, 80 S.D. 469, 126 N.W.2d 808 (1964). In Block, we stated:

"If a physician brings to his patient care, skill, and knowledge, he is not liable to him for damages resulting from a bona fide error of judgment of which he may be guilty. The law requires a physician to base any professional decision he may make on skill and careful study and consideration of the case, but when the decision depends on an exercise of judgment, the law requires only that the judgment be bona fide. A physician is not an insurer of the correctness of his judgment[.]"

80 S.D. at 475-76, 126 N.W.2d at 811 quoting 41 Am.Jur. Physicians and Surgeons Sec. 103. As recently as 1978, we upheld use of a similar instruction. Fjerstad v. Knutson, 271 N.W.2d 8 (S.D.1978).

Several courts have chosen to reexamine the use of instructions of this type. Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984); Ellis v. Springfield Women's Clinic, 67 Or.App. 359, 678 P.2d 268 (1984) rev. denied 297 Or. 228, 683 P.2d 91 (1984); Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294 (1983); Somer v. Johnson, 704 F.2d 1473 (11th Cir.1983); Veliz v. American Hosp., Inc., 414 So.2d 226 (Fla.App.1982); Teh Len Chu v. Fairfax Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820 (1982). These courts have held that the use of such terms as "honest mistake," "bona fide error in judgment," or "good faith error in judgment" have no place in a medical malpractice instruction.

[T]o use such a phrase in a charge upon negligence serves only to confuse a jury by implying that only an error in judgment made in bad faith can be actionable. The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of reasonable care, not his mental state at the time of the conduct[.]

Logan, 465 A.2d at 303.

We agree with the reasoning expressed in these cases and hold that the use of such terms as "good faith error in judgment" unduly confuses the issues in a negligence action. Hereafter, such instructions should not be given. Any language to the contrary in prior decisions is expressly overruled. We find the...

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