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Lita St. John, Plaintiff and Appellant v. Linda Peterson

September 14, 2011

LITA ST. JOHN, PLAINTIFF AND APPELLANT,
v.
LINDA PETERSON, M.D., DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA HONORABLE JON S. FLEMMER Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

ARGUED ON MAY 25, 2011

[¶1.] Lita St. John sued Dr. Linda Peterson alleging medical malpractice in repairing a vesicovaginal fistula. The jury entered a verdict for Dr. Peterson. St. John appeals, arguing that the trial court erred in excluding evidence of other cases where Dr. Peterson had failed to repair vesicovaginal fistulas. We reverse and remand.

FACTS

[¶2.] Dr. Peterson was treating St. John for stress incontinence and menstrual problems. In May 2006, Dr. Peterson performed a hysterectomy on St. John. The parties agree that the hysterectomy was medically necessary. Within two weeks of the hysterectomy, St. John began experiencing uncontrollable urination. On May 24, 2006, Dr. Peterson diagnosed St. John with a vesicovaginal fistula.*fn1 A vesicovaginal fistula is "an abnormal fistulous tract extending between the bladder and the vagina that allows the continuous involuntary discharge of urine into the vaginal vault." John Spurlock, Medscape Reference, http://emedicine.medscape.com/article/267943-overview (last visited September 8, 2011).

[¶3.] On June 9, 2006, Dr. Peterson attempted to repair St. John's fistula utilizing what she called a "Latzko" procedure. Her attempt failed and the leaking continued. Dr. Peterson again attempted to repair the fistula by way of a vaginal stitch on June 14 without utilizing any anesthetic. The attempt was not finished because St. John could not tolerate the pain. On June 20, Dr. Peterson tried a vaginal stitch again, this time with an epidural. The stitch failed. Dr. Peterson's fourth and final attempt to repair the fistula, again using the "Latzko" procedure, was made on July 13. It too failed. St. John's fistula was eventually repaired by another physician using traditional techniques, not the "Latzko" procedure.

[¶4.] St. John and three other women sued Dr. Peterson. They alleged that they were injured when Dr. Peterson performed hysterectomies that caused vesicovaginal fistulas. They further alleged that Dr. Peterson was negligent and her efforts to repair the fistula deviated from the standard of care. The trial court severed the claims after finding that there would be undue prejudice against Dr. Peterson if all four cases were presented to the jury at the same time.

[¶5.] Before trial, Dr. Peterson made a motion in limine to prevent St. John from introducing testimony of evidence of prior claims or other lawsuits brought against her. The motion was granted by the trial court. After a three- day trial in November 2009, the jury was unable to reach a verdict.

[¶6.] Another trial was scheduled for August 2010. Before this second trial, St. John's counsel requested clarification of the trial court's grant of the motion in limine from the first trial. St. John wanted to be able to question Dr. Peterson about her experience repairing vesicovaginal fistulas. The trial court again granted Dr. Peterson's motion. By written order on August 16, 2010, the trial court ordered that "[St. John] is prohibited from offering any testimony or evidence concerning other lawsuits or claims brought against [Dr. Peterson] and the facts involved in those other lawsuits and claims. . . . [St. John] is prohibited from offering any testimony or evidence regarding [Dr. Peterson's] treatment of other patients for vesicovaginal fistulas."

[¶7.] At the pretrial hearing, St. John also asked the court if she would be allowed to ask Dr. Peterson: "Have you had problems with this procedure in the past? Yes or no." The trial court prohibited this question because "whether or not there's been problems in the past still doesn't provide evidence of whether there was a problem in this case." In doing so, St. John argues that the trial court improperly expanded Dr. Peterson's motion in limine.

[¶8.] At trial, St. John made an offer of proof of testimony by expert witness Dr. Arnold Wharton in which he discussed his review of some of the medical records for other patients treated by Dr. Peterson.*fn2 Dr. Wharton testified that he had reviewed the records of the other three women who were co-plaintiffs with St. John before the cases were severed. He testified that all four women developed fistulas while under Dr. Peterson's care within 18 months of each other. Dr. Peterson attempted to repair each woman's fistula, but failed on all four. Dr. Wharton was asked, "in terms of her competency and 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?" He responded, "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's well-known throughout the United States."

[¶9.] The second trial was held in August 2010. The jury found in favor of Dr. Peterson. St. John raises one issue on appeal:

Whether the trial court abused its discretion in precluding evidence regarding Dr. Peterson's experience ...


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