#27320-a-SLZ

2015 S.D. 95

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
NICHOLAS SHAWN KLEIN,                        Plaintiff and Appellant,

      v.

SANFORD USD MEDICAL CENTER,                  Defendant and Appellee.

                                    ****
                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****
                   THE HONORABLE PATRICIA C. RIEPEL
                               Judge

                                    ****

PETER J. BENDORF
Sioux Falls, South Dakota

and

ANDREW BIRKELAND of
Hovland & Rasmus, PLLC
Edina, Minnesota                             Attorneys for plaintiff
                                             and appellant.

MELISSA C. HINTON
REECE M. ALMOND of
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellee.

                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON OCTOBER 5, 2015

                                             OPINION FILED 12/09/15
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ZINTER, Justice

[¶1.]        Nicholas Klein sued Sanford USD Medical Center for damages

allegedly caused by his claimed premature discharge from the hospital. The circuit

court granted Sanford summary judgment. The court concluded that Sanford was

entitled to good faith immunity under SDCL 34-12C-7 because Klein demanded to

be discharged against medical advice. Klein appeals, asserting that SDCL 34-12C-7

does not apply, and that if it does apply, there was a genuine dispute of material

fact whether Sanford acted in good faith. We affirm.

                            Facts and Procedural History

[¶2.]        On January 16, 2011, at approximately 1:00 a.m., thirty-eight-year-old

Nicholas Klein drove to the Sanford USD Medical Center emergency department

after being struck in the throat and head during an altercation at a bar. The

nurse’s notes recorded Klein “has a normal mood and effect. . . . His mood appears

not anxious. He does not exhibit a depressed mood. He expresses no homicidal and

no suicidal ideation.” At approximately 2:00 a.m., Klein complained of increasing

pain in his neck and throat. Sanford performed a CT scan and recommended that

Klein be intubated to protect his airway. Klein was intubated and admitted to the

intensive care unit. The nurse’s notes indicated that Klein “tolerated the procedure

well. There were no complications.”

[¶3.]        While intubated, Sanford staff administered sedation medication—

Propofol, Versed, and Fentanyl. The record is not clear, but it suggests that Klein

began to receive sedation medication at 2:30 a.m. To assess the condition of his

airway and determine whether Klein should remain intubated, Dr. Ashraf Elshami


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obtained consent from Klein to perform a bronchoscopy. The bronchoscopy revealed

no compromise to Klein’s airway. At approximately 11:00 a.m., after Klein had

been intubated for approximately eight hours, Sanford staff extubated Klein and

discontinued administration of sedation medication.

[¶4.]        At 11:55 a.m., Klein asked Sanford Nurse Kelli Kolander when he

would be allowed to leave the hospital. She informed Klein that a physician would

have to discharge him sometime during the week. Klein became agitated and

started to pull at his heart rate monitor, IV, and tubing. Klein insisted on leaving

the hospital. Kolander informed Klein that he would be leaving against medical

advice. She asked that Klein allow her to consult with his physicians, and Klein

agreed. Kolander contacted Dr. Curtis Peery (the on-call trauma surgeon) and Dr.

Elshami. Dr. Peery did not object to Klein leaving against medical advice. Dr.

Elshami informed Kolander that he wanted Klein to drink fluids before leaving.

Klein refused. Kolander related Klein’s refusal to Dr. Elshami, and Dr. Elshami

informed Kolander that Klein could not be forced to drink fluids. Dr. Elshami

approved Klein leaving against medical advice. Kolander also contacted Klein’s

regular physician, Dr. Schaefer, and spoke with Dr. Schaefer’s resident. Dr.

Schaefer’s resident approved Klein leaving against medical advice. According to the

nurse’s notes, Klein informed Kolander that he had an appointment scheduled with

Dr. Schaefer for the next week.

[¶5.]        After consulting with Klein’s physicians, Kolander obtained Klein’s

signature on a release form reflecting his desire to leave against medical advice.

Kolander also obtained Klein’s signature on additional paperwork related to his


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discharge. Klein refused to take any discharge paperwork with him. He also

refused any assistance with his dressings after the IV was removed. Kolander

offered to contact Klein’s family. Klein refused, although he gave Kolander

permission to inform his family that he had left if his family were to contact the

hospital. Klein told Kolander that he would drive himself home. She informed

Klein that his judgment and ability to drive could be impaired because he had

received sedation medication within the last four hours. The nurse’s notes indicated

that Klein said he did not care and would drive anyway. The nurse’s notes further

indicated that Klein “was agitated through this time.”

[¶6.]        After leaving Sanford at 12:30 p.m., Klein drove to his mother’s home,

retrieved a bottle of alcohol, and drove to his home in Hills, Minnesota. At some

point between 12:30 p.m. and 2:30 p.m., Klein drank the alcohol and overdosed on

his HIV medication (Ritonavir and Darunavir) and acetaminophen. Klein then

walked out of his house and brutally assaulted his neighbors. Klein later explained

that he had no clear memory of his actions after leaving Sanford. Klein had a

history of depression, anxiety, and prior suicide attempts.

[¶7.]        Klein pleaded guilty to multiple charges related to the assault. As part

of his criminal prosecution, a Minnesota court ordered a psychiatric evaluation. Dr.

Michael Harlow examined Klein and issued a mental health hold. Dr. Harlow

opined that at the time of the assault, Klein was “mentally ill secondary to delirium

from medication administration.” He concluded that Klein “was laboring under

such a defect of reason at the time of the offenses that he did not know the nature of




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the acts or that they were wrong.” The Minnesota court found Klein “not guilty by

reason of mental illness[.]”

[¶8.]        In January 2013, Klein brought this suit against Sanford. He alleged

that at the time of his discharge, he was suffering from a state of substance-induced

delirium and Sanford should have been aware of his changed mental condition.

Klein claimed that Sanford negligently failed to assess his mental condition after he

insisted on leaving against medical advice, which failure made him a danger to

himself and others. Klein alleged that, as a result of Sanford’s discharge, he

suffered economic and noneconomic damages.

[¶9.]        Sanford moved for summary judgment, asserting immunity under

SDCL 34-12C-7. That statute provides good faith immunity to health care

providers who follow a patient’s direction for his or her own health care. Sanford

claimed that its health care providers acted in good faith when they followed Klein’s

demand to leave against medical advice. Klein responded that SDCL 34-12C-7 did

not apply to his decision to refuse health care and that he did not have the capacity

to make the decision to leave against medical advice. In deciding the immunity

question, the circuit court asked Klein, “[W]hat factors have you shown me of bad

faith?” Klein argued that he was not required to show bad faith to defeat a medical

provider’s claim of good faith immunity under SDCL 34-12C-7. Klein further

argued that Sanford did not act in good faith because Sanford should have known

Klein was a danger to himself and others based on his mental health history, the

medications administered, and the change in his behavior post-extubation.




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[¶10.]       The circuit court granted Sanford summary judgment. The court

reasoned that SDCL 34-12C-7 applied and that although there were facts alleging

negligence, there were “no facts . . . alleging bad faith.” Klein appeals, arguing

SDCL 34-12C-7 does not apply. If the statute does apply, Klein argues that he

presented sufficient evidence to create a disputed issue of material fact whether

Sanford acted in good faith.

                                       Decision

[¶11.]       Summary judgment is proper when “the moving party demonstrate[s]

the absence of any genuine issue of material fact and show[s] entitlement to

judgment on the merits as a matter of law.” Brandt v. Cty. of Pennington, 2013 S.D.

22, ¶ 7, 827 N.W.2d 871, 874 (quoting Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746

N.W.2d 739, 745). The evidence is viewed “most favorably to the nonmoving party

and reasonable doubts should be resolved against the moving party. The

nonmoving party, however, must present specific facts showing that a genuine,

material issue for trial exists.” Id. “The circuit court’s conclusions of law are

reviewed de novo.” Tolle v. Lev, 2011 S.D. 65, ¶ 11, 804 N.W.2d 440, 444 (quoting

Johnson v. Sellers, 2011 S.D. 24, ¶ 11, 798 N.W.2d 690, 694).

[¶12.]       Klein first contends that SDCL 34-12C-7 applies only to a person’s

decision to receive medical treatment, not when a person refuses medical treatment.

SDCL 34-12C-7 grants good faith immunity for a health care provider’s

determination that a person is able to give consent and for following a patient’s

directions regarding health care.

             A health care provider who in good faith believes that a person
             is capable of giving informed consent for his own health care is

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             not subject to . . . civil liability . . . for following that person’s
             direction or for making such determination.

Id. (emphasis added). “Health care” is defined as “any care, treatment, service, or

procedure to maintain, diagnose, or treat a person’s physical or mental condition.

The term also includes admission to . . . a licensed health care facility[.]” SDCL 34-

12C-1(3). But the statute does not specifically mention the refusal to accept health

care. Klein argues that the statute does not apply to a “refusal” to accept health

care because the definitional words “care, treatment, service, procedure, maintain,

diagnose, and treat” all relate to the actual receipt of various types of health care.

[¶13.]       We do not read words or phrases in isolation; rather, “the words of a

statute must be read in their context and with a view to their place in the overall

statutory scheme.” Expungement of Oliver, 2012 S.D. 9, ¶ 9, 810 N.W.2d 350, 352

(quoting Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133, 120 S. Ct. 1291, 1301, 146 L. Ed. 2d 121 (2000)). Furthermore, we do not

interpret a statute to reach an absurd result. Doe v. Quiring, 2004 S.D. 101, ¶ 18,

686 N.W.2d 918, 923.

[¶14.]       Klein’s interpretation fails to read the words of the statute in context.

SDCL 34-12C-7 provides immunity to a provider who makes a good faith decision to

follow a patient’s “direction” regarding his or her “health care.” The phrase “health

care” is broad, and SDCL 34-12C-1(3) defines “health care” to specifically include

“admission[s].” Because an admission direction is based on a patient’s decision to

receive or refuse care in a facility, the statutory scheme contemplates immunity for

good faith decisions honoring a patient’s decision to refuse further health care at a

health care provider’s facility. Klein’s contrary interpretation is illogical and would

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lead to an absurd result. Under Klein’s interpretation, the statutory scheme would

provide immunity for following a patient’s direction to undergo a recommended

surgery or treatment, but no immunity would be provided for the same patient’s

direction to forego that recommended surgery or treatment. The circuit court did

not err in concluding that SDCL 34-12C-7 applied to Klein’s decision to leave the

hospital against medical advice.

[¶15.]       Because SDCL 34-12C-7 applies, we next determine whether the

circuit court erred in ruling that there was no disputed issue of material fact

whether Sanford acted in good faith. Klein points out that the circuit court granted

summary judgment, stating that “there are no facts that are alleging bad faith.”

Klein argues that the court erred in granting summary judgment on this basis

because the absence of bad faith is not necessarily synonymous with the presence of

good faith. He further contends that the court improperly imposed upon him the

initial evidentiary burden to present facts regarding Sanford’s good faith.

[¶16.]       To address these issues, we must first determine the meaning of “good

faith” under SDCL 34-12C-7. Klein contends that “good faith” means “being faithful

to one’s duty or obligation.” See Kunkel v. United Sec. Ins. Co., 84 S.D. 116, 121,

168 N.W.2d 723, 726 (1969) (quoting Hilker v. W. Auto. Ins. Co., 235 N.W. 413, 414

(Wis. 1931)) (involving an insurance contract claim). He further contends that good

faith means “faithfulness to an agreed common purpose and consistency with the

justified expectations of the other party.” See Garrett v. BankWest, Inc., 459 N.W.2d

833, 841 (S.D. 1990) (involving a breach of contract claim). In Klein’s view, these




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definitions of good faith properly take into account that “health care providers have

specialized knowledge and base their decisions on objective evidence[.]”

[¶17.]       Sanford responds that “accepting Klein’s definition of good faith would

totally gut SDCL 34-12C-7” and afford “health care providers no greater protection

than the common law of negligence.” Sanford contends that good faith should be

defined consistently with this Court’s decisions defining good faith in other

immunity contexts, such as in making a report of child abuse under SDCL 26-8A-

14. See Purdy v. Fleming, 2002 S.D. 156, ¶ 24, 655 N.W.2d 424, 432-33 (citing

cases).

[¶18.]       From our review of the cases cited by Klein and Sanford, and

considering the language of SDCL 34-12C-7, we find persuasive this Court’s

definition of good faith in the context of the statutory immunity provided in SDCL

26-8A-14. We do so because both good faith for abuse reporting and good faith for

health care decision-making implicate immunity considerations, unlike the

business-contract considerations at issue in the cases cited by Klein. See B.W. v.

Meade Cty., 534 N.W.2d 595, 597 (S.D. 1995) (“[i]mmunity is critical to South

Dakota’s evident public policy”).

[¶19.]       In B.W., we held that “good faith is a defendant’s honest belief in the

suitability of the actions taken.” Id. at 598. It means “performing honestly, with

proper motive, even if negligently.” Id. Good faith is not, however, simply the

absence of bad faith. Therefore, the circuit court erred in requiring evidence of bad

faith in order to resist Sanford’s motion for summary judgment. The court also

improperly imposed on Klein the initial burden to produce evidence of Sanford’s bad


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faith. SDCL 34-12C-7 is an affirmative defense, and because Sanford was the

moving party, Sanford—rather than Klein—had the initial burden of establishing

entitlement to immunity under the statute. See Dakota Indus., Inc. v. Cabela’s.com,

Inc., 2009 S.D. 39, ¶¶ 12-13, 766 N.W.2d 510, 513-14 (stating that the party

asserting an affirmative defense has the initial burden).

[¶20.]       Nonetheless, “even if the circuit court ‘relied upon a wrong ground or

gave a wrong reason[,]’” summary judgment may be affirmed. Strassburg v.

Citizens State Bank, 1998 S.D. 72, ¶ 5, 581 N.W.2d 510, 513 (quoting Helvering v.

Gowran, 302 U.S. 238, 245, 58 S. Ct. 154, 158, 82 L. Ed. 224 (1937)); see also

Saathoff v. Kuhlman, 2009 S.D. 17, ¶ 19, 763 N.W.2d 800, 806. We give no

deference to the circuit court’s legal conclusions. “If there exists any basis which

supports the ruling of the trial court, affirmance of a summary judgment is proper.”

Jacobson, 2008 S.D. 19, ¶ 24, 746 N.W.2d at 745 (quoting Cooper v. James, 2001

S.D. 59, ¶ 6, 627 N.W.2d 784, 787).

[¶21.]       The question then is whether the record indicates that Sanford carried

its initial summary judgment burden of establishing good faith. This required a

factual showing by Sanford that it acted in good faith when it determined that Klein

was capable of giving informed consent and when it decided to follow Klein’s

direction to leave against medical advice. See Masad v. Weber, 2009 S.D. 80, ¶ 15,

772 N.W.2d 144, 152-53 (explaining that the party raising the affirmative defense of

immunity has the burden of proving entitlement to that protection). See also

Doctors Hosp. of Augusta, LLC v. Alicea, 774 S.E.2d 114 (Ga. Ct. App. 2015)

(providing that defendants had burden of proving entitlement to summary


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judgment on affirmative defense of statutory, good faith immunity); Carey v. New

England Organ Bank, 843 N.E.2d 1070, 1083 (Mass. 2006) (explaining that the

burden is on the plaintiff “to identify competent evidence sufficient for a reasonable

jury to find to the contrary” after a defendant moves for summary judgment and

makes at least a minimal showing on its affirmative defense that it acted in good

faith). We have required that the evidence be sufficient to establish a prima facie

case. Dakota Indus., 2009 S.D. 39, ¶ 13, 766 N.W.2d at 514. “A prima facie case is

established for summary judgment purposes when there ‘are facts in evidence which

if unanswered would justify persons of ordinary reason and fairness in affirming the

question which the plaintiff is bound to maintain.’” Id. ¶ 14 (quoting Fin-Ag, Inc. v.

Pipestone Auction Livestock Mkt., Inc., 2008 S.D. 48, ¶ 33, 754 N.W.2d 29, 43). We

explained in Cotton v. Stange that “[t]he presence or absence of good faith requires

an examination of the mental state of the person under scrutiny.” 1998 S.D. 81,

¶ 11, 582 N.W.2d 25, 29. It “is the actual belief or satisfaction of the criterion of the

‘pure heart and empty head.’” Id. (quoting Garvis v. Scholten, 492 N.W.2d 402, 404

(Iowa 1992)).

[¶22.]       With these principles in mind, we review the evidence Sanford

submitted to determine if it established a prima facie case of good faith. Sanford

relied on the depositions of Klein, Dr. Elshami, and Nurse Kolander. Sanford also

relied on the hospital records and notes relating to Klein’s emergency department

visit, an informed consent form signed by Klein, the release of responsibility form

signed by Klein, and a copy of Klein’s medical records from Avera McKenna

Hospital and University Health Center. We focus particularly on Nurse Kolander’s


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deposition testimony as she was the Sanford employee caring for Klein when he

insisted on leaving against medical advice.

[¶23.]       Kolander testified that she did not believe the medication administered

to Klein played any part in his request to leave. She explained that “I did not

observe him to be under the influence of any medications.” She further explained

that it would not be unusual for someone to want to leave against medical advice

after just being extubated. In her view, people leave against medical advice “in all

different sorts of situations. It’s just situational.” Kolander conceded that she was

not aware of Klein’s mental health history but testified that she “did not know that

it would have changed anything.”

[¶24.]       Kolander further testified that she informed Klein “[t]hat since he

[was] making decisions on his own and [he was] alert and oriented and cognizant,

that we [could not] hold him against his will and he [had] the right to leave but that

I would have to inform his physicians.” Although Klein acted “anxious because he

was wanting to leave the hospital,” he did allow Kolander to contact his physicians.

Kolander contacted Dr. Peery, Dr. Elshami, and Dr. Schaefer’s resident. Kolander

indicated that Dr. Peery recalled Klein being alert and oriented, and therefore, he

had no objection to Klein’s departure. Although Dr. Elshami wanted Klein to drink

fluids, Dr. Elshami told her, “[I]f the patient’s oriented and able to make decisions

on his own, we cannot keep him here.” Finally, Dr. Schaefer’s resident approved

Klein’s departure.

[¶25.]       With respect to Klein’s mental status, Kolander testified that Klein’s

agitation “probably waxed and waned some; not, you know, constant agitation.


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Once I said, you know, just - - you have to give us a minute to get our things

together, he calmed but was still like, I said, anxious about leaving the hospital.”

She further explained that Klein received sedation medications only during

intubation and that the medications were fast acting with very short half-lives.

Kolander testified that “per his neurological standpoint, there’s no - - I had no

reason I could keep him in the facility.”

[¶26.]       The foregoing evidence established a prima facie case of good faith. If

unanswered, Kolander’s testimony would justify persons of ordinary reason and

fairness to conclude that Sanford acted in good faith in: (1) determining that Klein

was capable of giving informed consent for his health care, and (2) honoring Klein’s

direction to be discharged against medical advice. Therefore, the burden of

production shifted to Klein to identify facts creating a genuine dispute whether

Sanford acted in good faith. See Dakota Indus., Inc., 2009 S.D. 39, ¶ 14, 766 N.W.2d

at 514 (noting that one opposing summary judgment “must set forth specific facts

showing that there is a genuine issue for trial” (quoting SDCL 15-6-56(e))).

[¶27.]       Klein argues that the objective medical evidence created a material

dispute of fact regarding Sanford’s good faith. Klein emphasizes that Sanford was

in physical control of him while it administered sedatives several hours before he

became agitated and demanded to leave the hospital. According to Klein, Sanford

should have been aware that his HIV medications could increase or prolong the

sedative effects of the hospital’s medications. Klein further contends that Sanford

should have been aware, based on his history of mental health issues, that he was

suffering from a substance-induced delirium when he insisted on leaving. Klein


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relies on Dr. Lynn Maskel’s opinion that the sedation medications “can create

paradoxically in patients upon awakening, high levels of agitation, delirium, which

is reflected in high levels of agitation, erratic behaviors and illogical thought

processes.” According to Dr. Maskel, “Delirium is a disorder which is not

uncommon in medical settings such as ICUs with intubated patients.” Dr. Maskel

considered that Klein’s medical records contained a notation that mental health

should sign off on his case prior to his departure. Therefore, she opined that,

“[b]ased on the information known at the time,” Klein should have “been directly

evaluated for delirium” in light of his “request for discharge within an hour of

extubation with a resulting significant fluctuation of mental status that included

‘very agitated’ and ‘verbally aggressive[.]’”

[¶28.]       Klein also relies on Dr. Christopher Hanley’s deposition testimony

that, based on Klein’s “behavior and sensorium leading up to [his departure], he

should have been seen by a medical or mental health provider to assess whether or

not he had the capacity to make that decision.” In Dr. Hanley’s opinion, the

medications administered by Sanford were the cause and source of Klein’s delirium,

and therefore, Sanford had a duty to assess Klein’s capacity to leave against

medical advice. Lastly, Klein asserts that Sanford was aware that he was a risk to

others because Kolander advised him prior to his departure that the medication

could affect his judgment and ability to drive.

[¶29.]       We agree that Klein’s evidence includes numerous, objective facts

suggesting negligence. But these objective facts are not “material,” thus precluding

summary judgment, “unless [they] would affect the outcome of the suit under the


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governing substantive law[.]” Niesche v. Wilkinson, 2013 S.D. 90, ¶ 9, 841 N.W.2d

250, 253-54 (quoting A-G-E Corp. v. State, 2006 S.D. 66, ¶ 14, 719 N.W.2d 780, 785).

And here, the evidence of negligence would not affect the outcome of the suit under

the governing substantive law because “negligence and lack of good faith are not

equivalent. Simply put, if good faith immunity can be overcome by establishing

negligence, then good faith immunity is a meaningless concept as one would have to

be free from negligence, and thus not liable in any event, to also avail one’s self of

the doctrine of good faith immunity.” See B.W., 534 N.W.2d at 598. Therefore,

Klein’s evidence that Sanford employees were negligent was not material for

purposes of resisting summary judgment on Sanford’s claim that it acted in good

faith. See id. The circuit court correctly ruled that Klein failed to identify specific

facts showing that there was a genuine issue of disputed fact for trial on the

question of Sanford’s good faith.

[¶30.]       We conclude that SDCL 34-12C-7 applies. Further, there is no

disputed issue of material fact that Sanford acted in good faith. Therefore, the

circuit court correctly granted summary judgment.

[¶31.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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