#26296-a-JKK

2013 S.D. 8

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                    ****
BETTE THOMPSON,                             Plaintiff and Appellant,

      v.

AVERA QUEEN OF PEACE HOSPITAL
and CHRIS KROUSE, M.D.,                     Defendants and Appellees.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    DAVISON COUNTY, SOUTH DAKOTA

                                    ****

                THE HONORABLE TIMOTHY W. BJORKMAN
                              Judge

                                    ****

CASEY N. BRIDGMAN
Wessington Springs, South Dakota

      and

RONALD K. MILLER
Plankinton, South Dakota                    Attorneys for plaintiff
                                            and appellant.

ROGER A. SUDBECK
MEGHANN M. JOYCE of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota                   Attorneys for defendants
                                            and appellees.

                                    ****
                                            ARGUED NOVEMBER 7, 2012

                                            OPINION FILED 01/16/13
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KONENKAMP, Justice

[¶1.]        After her surgeon performed wrist surgery, plaintiff went to a second

doctor complaining of ongoing wrist pain. She had to undergo another surgery.

Plaintiff brought suit for medical malpractice against the first surgeon. A jury

returned a verdict for the surgeon. Plaintiff appeals.

                                    Background

[¶2.]        On September 29, 2007, Bette Thompson, 70 years old at the time, fell

while pruning a tree and fractured her left wrist. She was treated in the emergency

room at Avera Queen of Peace Hospital in Mitchell, South Dakota, after which her

arm was placed in a sling and she was directed to make an appointment with a

surgeon. On October 1, 2007, Dr. Chris Krouse, an orthopedic surgeon, ordered an

x-ray, which revealed that Thompson fractured her left distal radius — the radius

being the larger of the two bones in the forearm and the distal being the end toward

the wrist. At first, Dr. Krouse chose to treat the fracture conservatively, but later

recommended surgery.

[¶3.]        On October 20, 2007, Dr. Krouse operated on Thompson’s left wrist.

He intended to reduce the fracture with the goal of placing her wrist as close as

possible in its natural alignment. He implanted a metal plate and screws to hold

the bone in place. Using a fluoroscope during the surgery, he rotated Thompson’s

wrist to confirm that the screws were holding the metal plate in the proper position.

He considered the surgery a success.

[¶4.]        Thompson returned to Dr. Krouse’s office for follow-up care. At each

visit, he ordered x-rays of her wrist and discussed these x-rays with her. At


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Thompson’s last visit on January 16, 2008, he ordered an x-ray, which he believed

confirmed that he achieved a satisfactory reduction of the distal radius and that the

alignment of the wrist post surgery had not collapsed.

[¶5.]        On March 24, 2008, Thompson visited another orthopedic surgeon, Dr.

Blake Curd. She had continued to experience pain in her left wrist. Dr. Curd

ordered an x-ray, which revealed that the reduction and alignment of her wrist had

collapsed. Dr. Curd was concerned that the screws were penetrating Thompson’s

wrist joint space. A CT scan led Dr. Curd to recommend another surgery to remove

the metal plate and screws, which was accomplished on May 1, 2008.

[¶6.]        After Dr. Krouse refused Thompson’s request to reimburse her for the

costs she incurred for the surgery performed by Dr. Curd, Thompson brought suit

for medical malpractice against Dr. Krouse and Avera Queen of Peace. She alleged

that Dr. Krouse negligently failed to achieve a satisfactory reduction of her left

wrist and negligently left one screw protruding into the wrist space.

[¶7.]        Shortly before the trial, Thompson’s expert, Dr. Charles Clark,

testified by deposition that in addition to failing to satisfactorily reduce the distal

radius and negligently placing a screw, Dr. Krouse failed to inform Thompson about

the status of her condition following surgery. Dr. Clark repeated this opinion later

in the deposition, and counsel for Dr. Krouse objected asserting that Dr. Clark was

testifying to a previously undisclosed expert opinion. Counsel moved in limine to

exclude Dr. Clark’s opinion that Dr. Krouse failed to inform Thompson about the

status of her condition. After a hearing, the circuit court granted the motion in part

and ordered that certain portions of Dr. Clark’s testimony be redacted. At the close


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of trial, Thompson requested a jury instruction on the doctrine of res ipsa loquitor.

The court refused the instruction, finding that it was unsupported in the record.

The jury returned a verdict for Dr. Krouse. Thompson appeals on the grounds that

the court abused its discretion when it excluded portions of Dr. Clark’s testimony

and rejected the jury instruction on res ipsa loquitor. 1

                               Analysis and Decision

[¶8.]         Counsel for Dr. Krouse did not object the first time Dr. Clark broached

his opinion that Dr. Krouse breached the standard of care when he failed to inform

Thompson on the condition of her wrist after surgery. Because there was no

objection when the offending statement was made, Thompson insists that Dr.

Krouse waived his right to object to this testimony after the deposition concluded.

In Thompson’s view, had Dr. Clark testified live at trial, the jury would have heard

his statement when no objection was made. Thompson further argues that if

deposition testimony can be objected to after the fact, parties will be able to sit on

their right to object, only to later scour the deposition for errors and move for

exclusion. Apparently, the parties did not enter the common stipulation before the

deposition that all objections, except as to form, would be reserved.

[¶9.]         “[E]rrors of any kind which might be obviated, removed, or cured if

promptly presented, are waived unless seasonable objection thereto is made at the



1.      Standard of Review: The circuit court has discretion in admitting or
        excluding expert testimony, and therefore, we review a court’s evidentiary
        ruling on expert testimony for an abuse of discretion. Zepp v. Hofmann, 444
        N.W.2d 28, 31 (S.D. 1989). When a court refuses a requested instruction, we
        review for prejudicial error. Carpenter v. City of Belle Fourche, 2000 S.D. 55,
        ¶ 27, 609 N.W.2d 751, 762 (citations omitted).

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taking of the deposition.” SDCL 15-6-32(d)(3)(B). This rule gives “the erring party

an opportunity to correct the mistake, and to prevent waste of time and money by a

subsequent claim that a deposition must be suppressed because of some technical

error long ago.” Zepp, 444 N.W.2d at 33 (quoting 8 C. Wright and A. Miller, Federal

Practice and Procedure § 2153 (1970)). When a timely objection is made during a

deposition, counsel gains the opportunity to rephrase the question, provide

clarification, or a better foundation.

[¶10.]       Here, an objection by Dr. Krouse at the time of the question and

answer would not have obviated, removed, or cured the objectionable testimony.

Whether Dr. Clark’s standard-of-care answer constituted a previously undisclosed

expert opinion required a ruling by the circuit court. An objection before admission

of the deposition testimony at trial gave the court an opportunity to rule. Indeed,

“[t]he ideal in any trial is to keep improper and inflammatory questions or evidence

from the jury.” See id. Therefore, a deposition that contains improper evidence

“should be stricken prior to reading to the jury.” Id. The court did not abuse its

discretion in excluding the previously undisclosed opinion.

[¶11.]       Thompson next argues that Dr. Clark’s testimony was not a new

opinion because Dr. Clark was merely expanding on his previous opinion that “[i]t is

the whole treatment of the fracture that is below” the standard of care. A review of

the deposition testimony and discovery produced reveals otherwise. Before the

deposition, Dr. Clark opined that Dr. Krouse breached the standard of care when he

(1) failed to recognize that he did not perform an adequate reduction, (2) did not

correct the ulna being longer in comparison to the radius, and (3) failed to recognize


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that a screw was in the wrist joint space. There was no opinion offered on a duty to

inform or failure to inform Thompson. In his deposition, Dr. Clark specifically

opined, for the first time, that “the standard of care required [Dr. Krouse] to let the

patient know that [she] has an incomplete reduction and that may cause problems.

And that there’s a screw that’s prominent there and that should have been

investigated further.” This opinion was new and previously undisclosed.

[¶12.]         Thompson next contends that, even if Dr. Clark’s testimony

constituted previously undisclosed expert opinion, “the proper course would have

been to allow [Dr. Krouse] to obtain a continuance[.]” Thompson argues that by

excluding the evidence, the court “in effect” dismissed her case and entered a

default judgment against her. She further maintains that the court prevented her

from having “her day in court” and proving her claim that Dr. Krouse breached the

standard of care.

[¶13.]         When a party attempts to offer a previously undisclosed expert

opinion, that party may not “use as evidence at trial,” the “information not so

disclosed.” SDCL 15-6-37(c)(1). Here, the court properly excluded the specific

opinion of Dr. Clark that Dr. Krouse breached the standard of care when he failed

to inform Thompson on the condition of her wrist after surgery. 2 Such exclusion did




2        The court did not exclude all evidence related to Dr. Krouse’s failure to
         inform Thompson on the condition of her wrist. Specifically, the court
         overruled Dr. Krouse’s objection to the following testimony by Dr. Clark:

               you should let the patient know that you’ve got a problem, that
               you have an inadequate reduction, just so she could know.

                                                                   (continued . . .)
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not effectively enter a default judgment against Thompson or otherwise prevent her

from presenting expert testimony that Dr. Krouse breached the standard of care

when he failed to perform an adequate reduction and failed to notice the screw in

Thompson’s wrist joint area.

[¶14.]        Lastly, Thompson contends that the court abused its discretion when it

rejected her requested instruction on the doctrine of res ipsa loquitor. She contends

the instruction was warranted because Dr. Krouse had full management and

control of the operation, the medical procedure failed and had to be corrected by

another surgeon, and she incurred damages as a result. She argues that

“reasonable people do not go into surgery expecting to come out of the surgery with

screws protruding into a joint,” and when such happens, it is because the doctor

with full management and control of the operation was negligent.

[¶15.]        Under the doctrine of res ipsa loquitor, negligence is inferred from

surrounding circumstances because the specific act of negligence is not known and

the type of injury in and of itself provides evidence of negligence. Schmeling v.

Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957). But if the negligence is known

the doctrine has no application. Malloy v. Commonwealth Highland Theatres, Inc.,


__________________
(. . . continued)
               The appropriate thing I believe would have been to say I’m
               worried about the screw, maybe we should get a CT scan here
               and make sure it is not in the joint, and if it is then take that
               screw out. But the option as far as the shortening is concerned
               is to tell the patient it is short here and let’s see how you do, but
               down the road I may have to either cut the bone or shorten the
               ulna, but the patient should be informed about what’s going on
               with their wrist.


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375 N.W.2d 631, 636 (S.D. 1985). Moreover, the doctrine of res ipsa loquitur

“should be invoked sparingly and only when the facts and demands of justice make

the application essential.” Barger v. Chelpon, 60 S.D. 66, 73, 243 N.W. 97, 100

(1932); see also Shipley v. City of Spearfish, 89 S.D. 559, 561, 235 N.W.2d 911, 913

(1975).

[¶16.]       Here, Thompson alleged that Dr. Krouse was negligent when he

inadequately reduced her fracture and failed to notice that a screw protruded into

her wrist joint space. As support, Thompson presented direct evidence through

expert testimony that Thompson’s wrist did not collapse as a risk and consequence

of surgery, but as a result of Dr. Krouse’s specific negligence. “Although a plaintiff

does not waive instructions on res ipsa loquitur by trying to establish specific acts of

negligence through the introduction of some evidence which does not clearly and

definitely establish the exact cause of the injury, Fleege v. Cimpl, 305 N.W.2d 409,

414 (S.D. 1981), res ipsa loquitur is a rule founded on the absence of specific proof of

omissions or facts which constitute negligence.” Malloy, 375 N.W.2d at 636 (citing

Barger, 60 S.D. at 73, 243 N.W. at 100). There being specific proof of negligence in

this case, the court did not err in refusing the instruction.

[¶17.]       Affirmed.

[¶18.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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