St. John v. Peterson

• Citation: 865 N.W.2d 125
• Decision Date: 03 June 2015
• Docket Number: No. 27098.,27098.
• Parties: Lita ST. JOHN, Plaintiff and Appellant, v. Linda PETERSON, M.D., Defendant and Appellee.
• Court: Supreme Court of South Dakota

865 N.W.2d 125

Lita ST. JOHN, Plaintiff and Appellant

v.Linda PETERSON, M.D., Defendant and Appellee.

No. 27098.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2015.

Decided June 3, 2015.

Thomas L. Sannes, David A. Geyer of Delaney, Nielsen & Sannes, PC, Webster, South Dakota, Attorneys for plaintiff and appellant.

Reed Rasmussen of Siegel, Barnett and Schutz, LLP, Aberdeen, South Dakota Attorneys for defendant and appellee.

Opinion

WILBUR, Justice.

[¶ 1.] The circuit court entered judgment for Defendant, Dr. Linda Peterson. Plaintiff, Lita St. John, appeals the judgment and challenges the court's ruling that certain evidence was not relevant and, therefore, was inadmissible. We affirm.

Background

[¶ 2.] This is the third appeal of this medical malpractice action. See St. John v. Peterson (St. John I ), 2011 S.D. 58, 804 N.W.2d 71; St. John v. Peterson (St. John II ), 2013 S.D. 67, 837 N.W.2d 394. The subject of the first appeal involved an appeal of the 2010 jury verdict in favor of Dr. Peterson. St. John I, 2011 S.D. 58, ¶ 19, 804 N.W.2d at 74. The circuit court denied the admission of testimony from St. John's expert witness, Dr. Arnold Wharton, regarding Dr. Peterson's experience with similar medical procedures. Id. ¶ 8. We held that the circuit court “misstated and apparently misapplied the balancing test of Rule 403.” Id. ¶ 18, 804 N.W.2d at 77. As a result, we reversed and remanded to the circuit court. Id. ¶ 19.

[¶ 3.] On remand, the circuit court concluded that the proffered evidence was inadmissible and reinstated the original judgment. St. John II, 2013 S.D. 67, ¶ 11, 837 N.W.2d at 397. The court issued a memorandum decision on June 4, 2012, and findings of fact and conclusions of law on July 9, 2012. We held on appeal that the circuit court erred when it reinstated the judgment against Dr. Peterson. Id. ¶ 23, 837 N.W.2d at 400. Consequently, we reversed and remanded for a retrial, stating that “[t]he restoration of a reversed jury verdict based on a trial court's review of a pre-trial motion in limine on an evidence issue subverts the trial process.” Id.

[¶ 4.] This third appeal concerns St. John's claim that Dr. Peterson was negligent for failing to refer St. John to a doctor who specialized in repairing vesicovaginal fistulas

.¹ On April 10, 2014, Dr. Peterson filed a motion in limine with the circuit court. Dr. Peterson requested that the court preclude, inter alia, (1) “Plaintiff from offering any testimony or evidence concerning other lawsuits or claims brought against Defendant or the facts involved in those other lawsuits or claims[;]” and (2) “Plaintiff from offering any testimony or evidence regarding Defendant's unsuccessful treatment of other patients with vesicovaginal fistulas.” Dr. Peterson further requested that the court “reaffirm its Order regarding Dr. Wharton's deposition filed August 18, 2010, and order the redaction of the same portions of his deposition that were redacted during the last trial of this matter.”

[¶ 5.] On April 24, 2014, the circuit court conducted a pretrial hearing on the motion in limine. The court granted Dr. Peterson's motion in limine on April 30, 2014. This precluded St. John from proffering statements from Dr. Peterson's deposition regarding her treatment of three former patients who suffered vesicovaginal fistulas

: Cheryl, Crystal, and Ruth. Moreover, the court reaffirmed its July 9, 2012 findings of fact and conclusions of law, wherein the court found that St. John's proffered evidence regarding Dr. Peterson's treatment of Cheryl, Crystal, and Ruth, was not relevant.

[¶ 6.] Specifically, the circuit court found that evidence regarding Dr. Peterson's care and treatment of Cheryl was not relevant because it did not make the existence of any fact in St. John's case more or less probable on the issue of Dr. Peterson's competence to repair St. John's vesicovaginal fistula

. Dr. Peterson performed an abdominal hysterectomy on Cheryl. During the surgery, Dr. Peterson observed a “rent” on Cheryl's bladder, but she took no steps to address the “rent” at the time of the surgery. Later, Cheryl developed a vesicovaginal fistula in a different location than the “rent.” Dr. Peterson successfully repaired the fistula. Thereafter, Cheryl developed another fistula in a separate location from the first fistula. Dr. Peterson attempted to repair the second fistula. Following the surgery of the second fistula, Cheryl sought care elsewhere and underwent further surgery. In finding that this evidence was not relevant, the court noted that Dr. Peterson successfully repaired one fistula, and the “results of her attempts to repair the second fistula are unknown.”

[¶ 7.] In addition, the circuit court found that evidence regarding Dr. Peterson's care and treatment of Crystal and Ruth was not relevant because Dr. Peterson did not attempt to use the Latzko procedure to repair either Ruth or Crystal's vesicovaginal fistulas

. Instead, “a different surgical procedure” was performed on Crystal and Ruth than was performed on St. John. Accordingly, the court found that Dr. Peterson's treatment of Crystal and Ruth did “not make the existence of any fact in Plaintiff's case more or less probable on the issue of Defendant's competence to repair Plaintiff's vesicovaginal fistula

.”

[¶ 8.] Furthermore, in its April 30, 2014 order regarding Dr. Peterson's motion in limine, the circuit court reaffirmed most of the redactions to Dr. Wharton's deposition. At the third jury trial² on April 30, 2014, St. John made two offers of proof regarding the redactions to Dr. Wharton's deposition. The first offer of proof included statements made by Dr. Wharton regarding his review of the medical records for Cheryl, Crystal, and Ruth. Dr. Wharton stated that each of these three women developed vesicovaginal fistulas

while under Dr. Peterson's care within 18 months of each other, and that Dr. Peterson attempted and failed to repair each woman's fistula. St. John's counsel asked Dr. Wharton, “[I]n terms of her competency [at] fixing holes in the bladder once they've been caused, does the fact that she's had multiple attempts to fix them that have failed give you an impression one way or the other as to whether she knows how to do that?” Dr. Wharton replied, “Yeah. It simply tells me that this doctor really had no idea what she's doing or how to repair a fistula appropriately and following standard principle techniques [that are well known] throughout the United States.”

[¶ 9.] The second offer of proof involved statements made by Dr. Wharton about whether Dr. Peterson informed St. John that repairing fistulas

was not her specialty. The offer of proof included the following exchange:

Counsel: Dr. Wharton, I only have a couple of more questions. And I may have covered this, but I'm not sure. But at any point along the care, did you ever see anytime where Dr. Peterson indicated in her records that she'd had any kind of conversation with Ms. St. John where she said something to the effect of “fixing a hole in your bladder is not my subspecialty, you're really better off getting referred to someone whose specialty is fixing this type of thing”?

Dr. Wharton: No, I never saw that in the record.

Counsel: If that were the case, if Dr. Peterson knew that it wasn't her specialty and she knew that there were people whose specialty it was, would the standard of care require her to inform the patient of that and ... let them make an informed decision?

Dr. Wharton: Yes.

Counsel: And in that regard, did you see any evidence in the records, or from the evidence in the records, did it appear that Dr. Peterson had fallen below the standard of care?

Dr. Wharton: In my opinion ... that, by definition, ends below the standard of care, to offer a procedure that you're not comparable doing without informing the patient or giving the patient a choice.

[¶ 10.] The circuit court rejected both offers of proof. The court stated that it “would deny the [first] offer of proof at this time for the reasons that the [c]ourt has previously set forth in its rulings and memorandum decision that was issued previously.” At an earlier trial, the court ruled that the first offer of proof was inadmissible because the testimony about the three women, as described above, was not relevant. The court denied the second offer of proof because it found that the statements made by Dr. Wharton related to the issue of informed consent, an issue upon which the court had previously granted summary judgment in favor of Dr. Peterson.

[¶ 11.] The jury returned a verdict in favor of Dr. Peterson. St. John appeals and raises the following issues for our review:

1. Whether the circuit court erred by denying admission of evidence regarding Dr. Peterson's treatment of other patients.

2. Whether the circuit court erred by denying admission of Dr. Wharton's testimony that Dr. Peterson breached the standard of care by failing to inform St. John that repairing vesicovaginal fistulas

was not her specialty.

Standard of Review

[¶ 12.] “ ‘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 I, 2011 S.D. 58, ¶ 10, 804 N.W.2d at 74 (quoting Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10, 756 N.W.2d 345, 350). We will not overturn an evidentiary ruling unless the error is prejudicial. Id. (quoting Novak v. McEldowney, 2002 S.D. 162, ¶ 7, 655 N.W.2d 909, 912). “ ‘Error is prejudicial when, in all probability, it produced some effect upon the final result and affected rights of the party assigning it.’ ” State v. Kvasnicka, 2013 S.D. 25, ¶ 56, 829 N.W.2d 123, 135 (quoting State v. Vatne, 2003 S.D. 31, ¶ 10, 659 N.W.2d 380, 383).

Analysis

[¶ 13.] 1. Whether the circuit court erred by denying admission of evidence regarding Dr. Peterson's treatment of other patients.

[¶ 14.] The circuit...