LITA ST. JOHN, Plaintiff and Appellant,
LINDA PETERSON, M.D., Defendant and Appellee.
CONSIDERED ON BRIEFS ON FEBRUARY 12, 2013
REASSIGNED JULY 5, 2013
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge.
THOMAS L. SANNES DAVID A. GEYER of Delaney, Nielsen & Sannes, PC Webster, South Dakota Attorneys for plaintiff and appellant.
REED RASMUSSEN of Siegal, Barnett & Schutz, LLP Aberdeen, South Dakota Attorneys for defendant and appellee.
[¶1.] In the first appeal of this medical malpractice suit, we reversed and remanded a judgment for the defendant, Dr. Linda Peterson, holding that the trial court abused its discretion when it misconstrued the rules of evidence on the relevancy and admissibility of plaintiff Lita St. John's proffered evidence. St. John v. Peterson (St. John I), 2011 S.D. 58, 804 N.W.2d 71. On remand, Dr. Peterson sought reconsideration of the evidentiary rulings and reinstatement of the judgment. Concluding that our opinion still left open the question whether the evidence was admissible, and ruling that it was not, the trial court declined to grant St. John a new trial and reinstated the judgment for Dr. Peterson. We reverse and remand.
[¶2.] After a 2010 jury verdict for Dr. Peterson in a negligence suit, St. John appealed. In our decision, we framed the issue as "[w]hether the trial court abused its discretion in precluding evidence regarding Dr. Peterson's experience with similar medical procedures." Id. ¶ 9. From the trial court's ruling, we could not determine whether it deemed St. John's proffered evidence relevant, because the "court only said that it did not appear that there was 'sufficient relevancy' to overcome or outweigh the prejudice that would be caused." Id. ¶ 14. We declared that on remand, "the court must determine whether the proffered evidence was relevant before considering whether it is admissible." Id.
[¶3.] Returning to the trial court at the end of 2011, Dr. Peterson sought to exclude plaintiff's proffered evidence, arguing that if the trial court determined that the evidence was admissible, it could then proceed with a new trial. But if, using the correct standard, the trial court concluded that the evidence was inadmissible, it could reenter the judgment.
[¶4.] St. John responded that the trial court must order a new trial regardless, because this Court's decision to reverse and remand meant the parties stood as if no trial had yet been held. Alternatively, St. John argued that if the trial court decided to reconsider the issue, Dr. Peterson's admissions "that she had several failed attempts repairing vesicovaginal fistulas involving multiple patients" made it more probable that she breached the standard of care when she treated St. John. Additionally, St. John argued that the evidence was admissible under SDCL 19-12-5 (Rule 404(b)) as other acts evidence: Dr. Peterson's past failures were relevant to prove Dr. Peterson's deficiency in knowledge and skill. Lastly, St. John asserted that Dr. Peterson testified at trial as an expert, and therefore, the evidence was proper for impeaching her knowledge, skill, experience, training, or education. The appellate briefs and the transcript from the oral argument for St. John I were made part of the trial court's record. After the hearing, the trial court issued a memorandum decision concluding that a retrial was not the only permissible option. It then reexamined the questioned evidence.
[¶5.] St. John's proffered evidence consisted of three other surgeries where Dr. Peterson's patients suffered vesicovaginal fistulas. With the first patient, Cheryl, Dr. Peterson performed an abdominal hysterectomy. She observed a "rent" on Cheryl's bladder, but took no steps in response. Later, Cheryl developed a vesicovaginal fistula. Dr. Peterson attempted to repair the fistula using the Latzko procedure, the same procedure used with St. John. Dr. Peterson thought the repair was successful, but Cheryl developed another fistula at a different location. Dr. Peterson repaired the second fistula, again using the Latzko procedure, but after that attempt, Cheryl sought care elsewhere.
[¶6.] While Cheryl's and St. John's treatments were similar—total abdominal hysterectomies with vesicovaginal fistulas—the trial court found the evidence of Cheryl's treatment irrelevant. It concluded that there was "a successful repair of one fistula and an unknown outcome concerning the other fistula." Cheryl's treatment, in the trial court's opinion, did not make the existence of any fact in St. John's case more or less probable. However, in her deposition, Dr. Peterson testified that she did indeed fail to repair a fistula for Cheryl. Even if relevant, the trial court went on to conclude that the probative value of this evidence was outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. This evidence, the trial court stated, was merely an allegation of negligence in the failure to repair one of Cheryl's two vesicovaginal fistulas. Thus, the trial court reasoned, the jury would be required to "conduct a mini-trial concerning the allegations about the treatment provided to Cheryl[.]" Moreover, "admission of the evidence from [Cheryl's] case would open the door to Dr. Peterson presenting evidence in defense of those allegations as well as other successful outcomes." The trial court ruled the evidence inadmissible under SDCL 19-12-3 (Rule 403).
[¶7.] As for the second patient, Crystal, during her vaginal hysterectomy, a hole was discovered in her bladder. Although Dr. Peterson repaired the hole during surgery, Crystal was later diagnosed with a vesicovaginal fistula. But Dr. Peterson did not diagnose the fistula or attempt to repair it. Because St. John's negligence claim centered on Dr. Peterson's repair of her fistula, and no such repair was performed by Dr. Peterson on Crystal, the trial court ruled the evidence of Crystal's care irrelevant. Moreover, the trial court found that the ...