Wells v. Billars

• Citation: 391 N.W.2d 668,70 A.L.R.4th 589
• Decision Date: 24 July 1986
• Docket Number: No. 15085,15085
• Parties: Bonnie WELLS, Plaintiff and Appellant, v. Dr. Tom BILLARS, Defendant and Appellee.
• Court: Supreme Court of South Dakota

Page 668

391 N.W.2d 668

70 A.L.R.4th 589

Bonnie WELLS, Plaintiff and Appellant, v. Dr. Tom BILLARS, Defendant and Appellee.

No. 15085.

Supreme Court of South Dakota.

Argued April 22, 1986.

Decided July 24, 1986.

Bradley G. Bonynge, Sioux Falls, for plaintiff and appellant.

Carleton R. Hoy, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee.

SABERS, Justice.

Appeal from trial court's decision holding plaintiff's medical malpractice action time-barred. We reverse and remand.

Statement of Facts

In May of 1982, appellant Bonnie Wells (Bonnie), began to experience problems with her eyes. Specifically, she was unable to see out of her right eye while the left one was closed when applying eye makeup. Shortly thereafter, she made an appointment to be examined by appellee, Dr. Tom Billars (Billars), an optometrist.

Bonnie visited Billars at his Optometric Clinic in Sioux Falls, South Dakota, on May 27, 1982. She reported her symptoms as being cloudiness, blurriness, and seeing squiggly lines in relation to her right eye. Bonnie also told Billars about her experience when applying eye makeup, that her right-sided vision was distorted, and that she couldn't see above a certain area of her right eye.

Billars then conducted an eye examination. He used an opthalmoscope to look through the pupil and into the back of Bonnie's eyes to examine each retina for any deviations or tears. According to Billars' notes, Bonnie's left eye checked-out negative, i.e., no indication of retinal damage. However, due to the fact that the right eye was cloudy, Billars placed a question mark next to the abbreviation "neg" [negative], in reference to the right eye.

The examination report contains the following notes: "If flutter continues dilate, Tschetter, if detach, (will call tomorrow)." Billars explained these notations to mean that if Bonnie's flutter (squiggly lines) continued, then he would want to dilate her pupil and check for a detached retina. If a detachment was indicated, then he would refer Bonnie to Dr. Tschetter, a local opthalmologist, for treatment. Billars further stated that he advised Bonnie to call him if her symptoms continued, or if for any reason she noticed changes. It is undisputed that her symptoms persisted and that Bonnie failed to contact Billars as requested.

Because there were no observable retinal detachments through the opthalmoscope, Billars' initial diagnosis was that of a possible ocular migraine, and he so noted this on the examination report. An ocular migraine is a common and temporary restriction of blood vessels in the retinal area, which is often accompanied by headaches. However, because a flutter can also indicate a detachment, Billars stated that the proper course was to observe and monitor Bonnie, which is why he made the above referenced notes on the examination report.

During this examination, Billars prescribed glasses as the solution to Bonnie's eye problems even though he suspected, among other things, a detached retina. Bonnie's symptom of flutter and the other symptoms she had continued. However, Bonnie thought she should wait and see how the glasses that Dr. Billars prescribed would solve her visual problems before recontacting him as requested. In keeping with regular procedure, Bonnie was scheduled for a progress appointment six weeks after May 27, 1982, for which she was charged $5.00. The follow-up appointment was scheduled for late June or early July.

On the day of the initial examination, Bonnie chose new frames. She returned to the Optometric Clinic (Clinic), on June 18, 1982, to order the glasses and put down a deposit on them. According to the Clinic's records, the glasses were ordered on June 21, 1982. Bonnie again returned to the Clinic's dispensary on June 25, 1982, at which time she was fitted with her new glasses and paid the balance on her bill. Although she did not see Billars personally on these visits, Bonnie was seen by his employees in the dispensary which is run by the Optometric Clinic. The Clinic is a professional corporation of which Billars is a stockholder.

Bonnie testified that she returned to the Clinic for her follow-up appointment and told Billars that she was still unable to see out of her right eye. According to Bonnie's testimony, Billars told her that "it was something that she would have to learn to live with." Billars testified that he never saw Bonnie again after her first and only examination conducted on May 27, 1982. He further stated that had she returned for the follow-up, then progress notes would have appeared on her examination card in his records. Billars' records do not show a second examination.

Bonnie's symptoms persisted despite the new eyeglasses prescribed by Billars. On September 12, 1983, Bonnie was examined by Sioux Falls Opthalmologist Dr. Thomas White, who detected a detached retina in both her right and left eyes. He recommended immediate surgery. On September 16, 1983, surgery was performed on Bonnie's right detached retina at the Metropolitan Medical Center in Minneapolis, Minnesota. The left detachment was corrected with lazer beam surgery in March, 1984. Bonnie is now legally blind in her right eye.

Bonnie stated that her doctors advised her that had the detachment in her right eye been detected earlier, then her sight may have been preserved. Bonnie contends that Billars' malpractice caused the delay in diagnosis and resultant treatment of her right eye. She commenced this action against Billars on June 15, 1984.

Billars moved to dismiss the action on the basis that the statute of limitations had run. The trial court denied this motion and ordered a trial limited to the issue of the statute of limitations. On June 26, 1985, trial was commenced, and the following question was posed to the jury, "Did Dr. Billars examine or treat Bonnie Wells professionally on or after June 15, 1982?" The jury returned a negative answer and judgment was entered for Billars. The trial court further denied Bonnie's motion for a directed verdict, judgment notwithstanding the verdict, and a new trial.

On appeal, Bonnie argues that the special jury question was too restrictive and that the trial court erred in failing to grant her motions.

DID THE ALLEGED MALPRACTICE, ERROR, MISTAKE OR FAILURE TO

CURE OCCUR AFTER JUNE 15, 1982?

If so, this action is not barred by the statute of limitations.

1. Special Jury Question

Bonnie claims that the special jury question was too limited because it was restricted to the issue of whether Billars professionally "treated" or "examined" her. She contends that the jury could very well have found that Billars "saw" her on the subsequent Clinic visits, even though he did not treat or examine her professionally. However, the record is clear that Bonnie failed to object to the form of the instruction at the time of the special trial, and consequently, is now precluded from raising this issue on appeal. See: Hogg v. First National Bank of Aberdeen, 386 N.W.2d 921, 924-925 (S.D.1986). In Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977), we wrote:

The failure of a court to correctly or fully instruct the jury is not reviewable unless an objection or exception to the instruction identifying the defect therein with sufficient particularity was taken or a written instruction correctly stating the law was requested.

Id. at 116, citing SDCL 15-6-51; Lang v. Burns, 77 S.D. 626, 632, 97 N.W.2d 863,866 (1959) [SDCL 15-6-51(b) clearly makes it the burden of the objecting party to inform the trial judge of the grounds which justify the objection.]; Englebert v. Ryder, 77 S.D. 333,339-340, 91 N.W.2d 739,742-743 (1958).

2. Continuing Treatment

Bonnie next argues that the trial court erred in refusing to grant her motions for a directed verdict, judgment notwithstanding the verdict or a new trial, and in ruling that both the June 18 and 25, 1982, visits to the Clinic did not amount to "treatment." These arguments present legal questions as opposed to the factual question presented to the special jury.

This action is governed by the statute of limitations found in SDCL 15-2-14.1 which provides:

An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake or failure to cure shall have occurred ...

Bonnie commenced this action on June 15, 1984. Therefore, Billars' malpractice, error, mistake or failure to cure must have occurred after June 15, 1982, in order for this action to be tenable under SDCL 15-2-14.1.

"Optometrists are trained to recognize symptoms of many diseases which may be discovered by eye examination. They are not permitted under recognized optometric standards to undertake a definite diagnosis but recognize this as the responsibility of a medical doctor. Obviously it is foreseeable that failure to refer to a qualified medical practitioner, when required to do so, will result in delay of diagnosis and the institution of treatment[.]" Steele v. United States, 463 F.Supp. 321, 333 (D.Alaska 1977). SDCL 36-7-25(11) defines one of the acts of unprofessional conduct relative to the profession of optometry as:

11. The failure to refer a patient to a physician ... if examination of the eye indicates a substantial likelihood of pathology which required the attention of a physician ...

The practice of optometry is defined in SDCL 36-7-1, and includes "the prescribing or employment of lenses, prisms, frames, mountings ... and any other means or method for the correction, remedy or relief of any insufficiencies or abnormal conditions of the visual processes of the human eye ..."

Bonnie contends that the services rendered to her by Billars' employees at the Clinic on June 18 and June 25, 1982,...