United States District Court, D. South Dakota, Western Division
ORDER GRANTING SUMMARY JUDGMENT IN PART AND DENYING
SUMMARY JUDGMENT IN PART
E. SCHREIER UNITED STATES DISTRICT JUDGE
Bryan Den Hartog, moves for summary judgment on plaintiff,
Cheryl Evans's, claim for medical negligence based on
patient abandonment and her request for punitive damages.
Evans responded to Dr. Den Hartog's statement of material
facts and filed an affidavit of her expert witness, but did
not file a responsive brief to the motion. After considering
the motion for summary judgment, the court grants it in part
and denies it in part.
Hartog is an orthopedic surgeon who previously practiced in
Rapid City, South Dakota. Docket 33 at 1. On July 10, 2014,
Dr. Den Hartog operated on Evans at Black Hills Surgical
Hospital performing a right knee arthroscopy to correct a
right lateral meniscus tear. Id. The surgical
procedure was finished at 9:20 a.m. Id. During the
procedure, Evans suffered a then unknown vascular injury to
the popliteal artery in her knee. Id. at 2. While
Evans was in recovery, the staff was unable to palpate or
feel the pulses in the artery in her foot. Id. Dr.
Den Hartog was alerted to the problem, but he was already in
another operative room and had another patient anesthetized
for surgery. Id. It is disputed as to whether or
when Dr. Den Hartog evaluated Evans. Id. No other
peripheral vascular credentialed surgeons were available to
assist at Black Hills Surgical Hospital. Id.
Hartog called Dr. Orecchia, a vascular surgeon who was out of
town, and told him there may have been a disruption of the
popliteal artery and asked for his advice. Id. at 3.
Dr. Orecchia told Dr. Den Hartog that Dr. Takara was on-call
for vascular emergencies at Rapid City Regional Hospital and
the patient should be transferred to Regional for evaluation.
Id. Evans was transferred from Black Hills Surgical
Hospital to the emergency room at Regional. Id. at
arrived at the Regional emergency department at 11:19 a.m. on
July 10, 2014, and was seen at 11:39 a.m. Id. at 5.
Dr. Takara was unavailable, but Dr. Tuma, an interventional
cardiologist, was available. Id. at 4. Dr. Tuma
examined Evans after she arrived and found she very likely
had temporary thrombosis of the vessel with spontaneous
recanalization. Id. Dr. Tuma placed a stent and
blood flow was restored. Id. at 6. Dr. Den Hartog
talked to Dr. Tuma by phone to get an update on Evans's
condition on the day of surgery. Id.
was discharged from Regional on July 12, 2014, two days after
Dr. Tuma placed the stent. Id. at 7. Evans saw Dr.
Den Hartog at his office on July 16 and July 23 and may have
been seen by him on July 11, 2014, at Regional. Id.
29, 2014, Evans called Dr. Tuma's office complaining of
pain and a hard knot behind her right knee. Id. When
she arrived at Dr. Tuma's office at 4:00 p.m. on the
29th, she was in serious pain and was taken to the emergency
room at Regional. Id. She was admitted to the
cardiac interventional unit at Regional in Dr. Tuma's
care. Id. An ultrasound showed blood flow through
the popliteal artery remained normal, but the pseudoaneurysm,
or hematoma, had enlarged significantly. Id. at 8.
The stent was in place, but Dr. Tuma did not know why there
was continued leakage. Id. On July 31, 2014, Evans
was scheduled to have Dr. Orecchia evacuate, or remove, the
hematoma. Id. When Dr. Orecchia entered Evans's
knee to evacuate the hematoma, he found the bleeding site was
actually the popliteal artery, because the artery had pulled
away from the stent on each end. Id. Dr. Orecchia
extended the dissection to get control of the artery, clamp
the artery, and reconstruct the artery with a Gor-Tex graft.
Id. Evans was discharged from Regional by Dr.
Orecchia on August 4, 2014. Id.
judgment is appropriate if the movant “shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party can meet its burden by
presenting evidence that there is no dispute of material fact
or that the nonmoving party has not presented evidence to
support an element of its case on which it bears the ultimate
burden of proof. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). To avoid summary judgment, “[t]he
nonmoving party may not ‘rest on mere allegations or
denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.'
” Mosley v. City of Northwoods, Mo., 415 F.3d
908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary
judgment is precluded if there is a genuine dispute of fact
that could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
considering a summary judgment motion, the court views the
facts and the inferences drawn from such facts “in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
alleges two claims against Dr. Den Hartog. First, that Dr.
Den Hartog breached his professional duty of care to Evans by
abandoning her during a medical emergency. Second, that Dr.
Den Hartog's acts and omissions constituted reckless
disregard for the health and safety of Evans entitling her to
an award of punitive damages. Dr. Den Hartog moves for
summary judgment on both claims.
As a matter of law, did Dr. Den Hartog abandon
is a recognized basis for liability of a physician to a
patient.See, e.g., Warwick v.
Bliss, 195 N.W. 501 (S.D. 1923).
“‘Abandonment' of a patient is the unilateral
severance by the physician of the professional relationship
between [the physician] and the patient without reasonable
notice at a time when continuing medical attention is still a
necessity.” 3 Am. Jur. 2d 117 Proof of Facts
§ 1 (2017). To prove abandonment, “[t]here must be
evidence that the physician has terminated the relationship
at a critical stage of the patient's treatment, the
termination was done without reason or sufficient notice to
enable the patient to procure another physician, and the
patient is injured as a result thereof.” Manno v.
McIntosh, 519 N.W.2d 815, 821 (Iowa Ct. App. 1994). An