Wuest ex rel. Carver v. McKennan Hosp.

• Decision Date: 06 December 2000
• Docket Number: No. 20905, No. 20914.
• Citation: 2000 SD 151,619 N.W.2d 682
• Parties: George WUEST as Guardian Ad Litem for Perry CARVER, Plaintiff and Appellant, and Shirley Carver, individually and as Guardian Ad Litem for Jesse Carver and Tina Wilson, Plaintiff, v. McKENNAN HOSPITAL, a South Dakota Corporation, Defendant and Appellee, and Laurie M. Hill, M.D., and Bernie Bahnson, M.D. and Central Plains Clinic, Ltd., Defendants.
• Court: South Dakota Supreme Court

619 N.W.2d 682

2000 SD 151

George WUEST as Guardian Ad Litem for Perry CARVER, Plaintiff and Appellant, and Shirley Carver, individually and as Guardian Ad Litem for Jesse Carver and Tina Wilson, Plaintiff, v. McKENNAN HOSPITAL, a South Dakota Corporation, Defendant and Appellee, and Laurie M. Hill, M.D., and Bernie Bahnson, M.D. and Central Plains Clinic, Ltd., Defendants.

Nos. 20905, 20914.

Supreme Court of South Dakota.

Argued March 21, 2000.

Decided December 6, 2000.

Michael A. Wilson of Quinn, Day & Barker, Rapid City, SD, Attorneys for appellant Wuest.

James E. McMahon and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD, Attorneys for appellee McKennan Hospital.

TIMM, Circuit Judge

[¶ 1.] Perry Carver's guardian ad litem, George Wuest, and Shirley Carver (collectively Carver) filed suit against McKennan Hospital (McKennan) and Perry Carver's physicians alleging medical negligence. The claim centered on McKennan's staffing policies and whether Carver's bathroom door should have been locked. The case was tried before a jury which returned a verdict in favor of all defendants. Carver now appeals only the verdict in favor of McKennan. We affirm on all issues.

FACTS

[¶ 2.] On the afternoon of November 19, 1993, Perry Carver walked into the Sioux Falls police station, claiming he was suicidal. Police officers transported him to McKennan's emergency room, where he was immediately admitted into the hospital's Acute Adult Unit on a 24 hour mental illness hold. He was diagnosed with depression, suicidal thoughts and alcohol intoxication.

[¶ 3.] At 6:00 p.m., a nurse in the Acute Adult Unit assessed Carver who continued to express suicidal tendencies. Later that evening, another nurse heard a loud noise in Carver's room. Upon investigating, she found a chair lying on its side and Carver sitting on his bed. He had removed his hospital gown, torn it into pieces and tied them back together. Carver told the nurse that if the chair had not slipped, he would have been dead by the time she found him. The nurse viewed this incident as a suicide attempt and, after consulting with Carver's physician, imposed a continuous one-to-one observation over him. The one-on-one observation continued until 11:30 p.m., when the observing nurse's shift ended. After that time, Carver was checked every 15 minutes. In addition, the nurse on duty positioned her chair so that she could see into his room. Carver slept for the remainder of the night.

[¶ 4.] At 7:00 a.m., on November 20th, the morning shift arrived for duty. The staff continued making 15 minute observations of Carver. At 8:00 a.m., Carver again expressed suicidal tendencies to a nurse. She encouraged him to take a shower, because she believed that he would feel much better if he cleaned up. The bathroom door in Carver's room was unlocked in order to allow him to clean up. At approximately 8:45 a.m., a psychiatrist went into Carver's room to conduct an assessment of his condition. When the doctor finished, he left the room, entered a room near the nurse's station, and began writing his report.

[¶ 5.] The nurse did not see the psychiatrist leave Carver's room. After she noticed him writing his report, she went to check on Carver. At 8:59 a.m., she discovered him in his bathroom, hanging by his robe. He was not breathing and his heart had stopped. He was resuscitated, but by then had suffered severe, permanent brain damage. Carver currently resides in a nursing home.

[¶ 6.] On appeal, Carver raises the following issues:

Did the trial court err by refusing to instruct the jury on the adverse inference rule?

Did the trial court err by refusing to instruct the jury on the doctrine of res ipsa loquitur?

Did the trial court fail to clearly instruct the jury regarding liability and causation?

Did the trial court err in replacing a juror with an alternate juror?

Did McKennan's counsel make unfairly prejudicial statements in its closing argument, thereby requiring a new trial?

ISSUE ONE

[¶ 7.] Did the trial court err by refusing to instruct the jury on the adverse inference rule?

[¶ 8.] This Court reviews a trial court's refusal of an instruction under the abuse of discretion standard. State v. Wright, 1999 SD 50, 593 N.W.2d 792. To establish error, the appellant must establish that the proffered instruction was a correct statement of the law applicable to the facts. Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808. In addition, it must be established that the "jury might and probably would have returned a different verdict if the proposed instruction had been given." Bauman v. Auch, 539 N.W.2d 320, 323 (S.D. 1995).

[¶ 9.] During the course of jury instruction settlement, Carver requested an instruction on the adverse inference rule. Carver claims he was entitled to the adverse inference instruction because McKennan destroyed the policy regulating staff to patient ratios for the Acute Adult Unit after Carver hung himself. More significantly, Carver claims McKennan destroyed the policy in spite of knowledge that staffing issues were critical in the events leading to Carver's hanging. Carver claims such conduct amounted to spoliation¹ and that an adverse inference instruction is appropriate when a party commits spoliation.

[¶ 10.] McKennan asserts that the policy was destroyed as a matter of business routine after Carver's hanging, but prior to the commencement of this lawsuit. It argues that since the destruction was due to a matter of routine procedure, the adverse inference instruction was not appropriate.

In South Dakota, we recognize and use the "adverse inference rule." This rule provides that if a party has evidence under its control and does not present that evidence, an inference may be drawn that the evidence would not support that party's claim. Amert v. Lake County Bd. of Equalization, 1998 SD 66, ¶ 28, 580 N.W.2d 616, 621 (quoting Sabhari v. Sapari, 1998 SD 35, ¶ 14, 576 N.W.2d 886, 891, n. 6 (quoting Matters v. Custer County, 538 N.W.2d 533, 536 (S.D.1995))). See also Klinker v. Beach, 1996 SD 56 ¶ 15, 547 N.W.2d 572, 576, n. 2

(stating that because a relevant document was not offered in support of any claims made by the plaintiff, the court will "assume it would not provide such support")(citing Matters, 538 N.W.2d at 536).

In re Estate of Klauzer, 2000 SD 7, ¶ 17, 604 N.W.2d 474, 478.

[¶ 11.] The burden was on the spoliator, McKennan, to show it acted in a non-negligent, good faith manner in destroying the document sought. An adverse inference is not automatic, it simply creates a presumption that the evidence sought would be unfavorable to the spoliator. See DeLaughter, 601 So.2d at 823 (finding that the adverse inference instruction failed to inform the jury that the hospital had the burden to show it did not destroy or misplace the hospital record); 29 Am.Jur.2d Evidence § 244 (1980) (stating any presumption that arises from the spoliation of evidence is rebuttable and open to explanation). The spoliator must provide an explanation for the disappearance of any documentary evidence. A duty is imposed upon a hospital such as McKennan to give an "adequate explanation for the absence of the [staffing procedure policy]." DeLaughter, 601 So.2d at 821. "Therefore, the jury was entitled to be told why the [staffing procedure policy] was missing, ... a relevant fact." Id.

[¶ 12.] The trial court, as gatekeeper of evidence, must use its discretion in deciding whether an adverse inference instruction should be given. The DeLaughter court explained:

As with any other evidence, the explanation for the original record's absence may be fully satisfying either that it was lost through no fault of the hospital, that the hospital deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue. For example, where the evidence is positive that the hospital had been destroyed by fire, such circumstance would adequately account for the loss of the original medical record without fault attributable to the hospital, and there would be no reason for the jury to be instructed on a presumption or inference arising from the loss.

Id. But if the trial court concludes the spoliator maliciously destroyed the document, it is unavailable because of negligence, or for some other reason evidencing a lack of good faith, the jury should be given an adverse inference instruction. Id. at 822. The jury must then determine if the explanation given is reasonable, and if it finds it is reasonable, then the jury may not infer the missing document contained unfavorable information to the opposing party. Id.

[¶ 13.] One factor to consider in determining whether a spoliator acted in good faith is an explanation that the evidence sought was destroyed as part of routine destruction in the course of business. McKennan asserts that its policy regulating staff to patient ratios for the Acute Adult Unit was updated as a matter of annual business routine. Many courts provide a safe harbor for a party who destroys a document before litigation commences if the destruction was done in the ordinary course of business, which indicates a degree of good faith so that an adverse inference should not be drawn. Scott M. Kline, Advising Clients on the Destruction of Documents Prepared and Used to Formulate Discovery Responses: Perils and Pitfalls, 11 Rev.Litig. 47 (Winter 1991).²

[¶ 14.] Allowing a defendant business such as McKennan to offer the routine or formal document destruction policy as an explanation for loss of evidence is simply realistic for many companies, especially large corporations who cannot as a practical matter afford the time or expense to retain every single document involved in its business.³ If a trial court deems an adverse inference instruction is necessary for the jury, then it will be up to the jury to decide whether a defendant's explanation for loss or destruction of documentary evidence due...