Argued Sept. 30, 2013.
Ronald A. Parsons, Jr., Steven M. Johnson, Shannon R. Falon of Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
Melissa C. Hinton, Vince M. Roche of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Lisa Lewis sued Sanford Medical Center for medical malpractice arising out of an attempted surgery that was aborted. Sanford admitted negligence but denied that its negligence proximately caused any of the damages Lisa sought to recover. Sanford also moved for summary judgment on a statute of limitations defense. The circuit court denied summary judgment. After a five-day trial, the jury returned a verdict in favor of Sanford, finding that Lisa did not suffer any damages legally caused bye Sanford's negligence. Lisa moved for a new trial, arguing that the jury could not award " zero damages." The circuit court granted Lisa's motion. Sanford appeals arguing that the circuit court abused its discretion in granting a new trial. Alternatively, Sanford argues
that the circuit court erred in denying summary judgment on its statute of limitations defense. We conclude that the circuit court erred in granting a new trial on Lisa's principal claim for damages associated with her cardiac problems. We further conclude that Lisa's remaining claim for damages for incisional pain was barred by the statute of limitations. We therefore reverse.
Facts and Procedural History
[¶ 2.] On September 24, 2007, Lisa Lewis was admitted to Sanford for laparoscopic gastric band surgery. Before the surgery, Lisa underwent a number of pre-operative tests. The tests were designed to determine whether she was suffering from cardiac or other medical issues that could cause problems in surgery. The tests did not reveal indications of cardiac problems or of neck, back, or abdominal pain. Similarly, on the day of the surgery, she was not experiencing any such pain or cardiac issues.
[¶ 3.] Lisa was sedated by an anesthesiologist before the surgery. Connie Bowar, a certified registered nurse anesthetist and an employee of Sanford, was assigned to assist the anesthesiologist. As part of the pre-surgery procedure, Bowar inserted an orogastric (i.e., mouth to stomach) tube into Lisa's stomach. The tube was intended to remove air and other contents from her stomach. However, Bowar mistakenly attached the tube to an oxygen supply rather than a suction device. The mistake caused Lisa's stomach to fill with pressurized oxygen. Sanford admitted that Bowar's mistake constituted negligence.
[¶ 4.] The mistake was not discovered until after the surgeon made his first laparoscopic incision into Lisa's abdomen. Because he immediately observed that something was wrong, the surgeon made four additional laparoscopic incisions to investigate whether the stomach had been perforated and whether there was any contamination in the abdominal cavity. Although he did not find a major perforation or contamination, he aborted the surgery because even a small stomach perforation could lead to an infection.
[¶ 5.] After the aborted surgery, Lisa was taken to a recovery room. While there, her heart rate dropped to thirty beats per minute, and she was given medication to increase the rate. Lisa's heart rate remained normal for the remainder of her stay in the recovery room. She was then moved to a regular hospital room. While in that room, her heart rate varied, dipping down into the thirties at times. Lisa was kept in the hospital overnight.
[¶ 6.] On September 25, 2007, the day after the aborted surgery, Lisa's heart rate dipped as low as twenty-six beats per minute. She was seen by a Sanford cardiologist. He diagnosed sick sinus syndrome and symptomatic bradycardia. The cardiologist indicated that these cardiac issues required the immediate implantation of a pacemaker, which was implanted the following day, September 26, 2007.
[¶ 7.] Before the pacemaker was implanted, Lisa began to complain of neck, back, shoulder, leg, and abdominal pain. She was given medication to relieve the pain. After the pacemaker was implanted, Lisa continued to have neck, back, and abdominal pain, and she was given medication to ...