Considered on Briefs On May 21, 2018
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT
COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge
VINCENT A. PURTELL STEVEN S. SIEGEL of Heidepriem, Purtell,
Siegel & Olivier, LLP Sioux Falls, South Dakota Attorneys
for plaintiffs and appellants.
GREGORY G. STROMMEN of Banks, Kappelman & Strommen, Prof.
LLC Rapid City, South Dakota Attorneys for defendant and
appellee Big Stone Therapies, Inc.
RASMUSSEN Siegel, Barnett & Schutz, LLP Aberdeen, South
Dakota Attorneys for defendant and appellee Milbank Area
SEVERSON, RETIRED JUSTICE
During a physical therapy session following hip surgery, the
plaintiff patient began to experience increased pain in her
leg. The pain did not subside and hospital staff later
diagnosed the patient with a fractured femur. The patient and
her husband brought suit against the physical therapy company
and the hospital. They alleged that the physical therapist
was negligent during the physical therapy session, that the
hospital was negligent in failing to timely diagnose the
fractured femur, and that the plaintiff patient was injured
as a result of the negligence of both defendants. The
defendants separately moved for summary judgment, and the
circuit court granted the motions after a hearing. The
plaintiffs appeal. We affirm in part and reverse in part.
On September 8, 2014, Anita Hanson underwent a right total
hip arthroplasty at Prairie Lakes Hospital in Watertown,
South Dakota. Dr. Michael Vener performed the surgery. After
the surgery, Dr. Vener took x-rays, which confirmed a
properly placed artificial joint. The x-ray did not reveal
any fractured bones. Anita remained at Prairie Lakes Hospital
until September 11. While at Prairie Lakes Hospital, Anita
participated in physical therapy without difficulty.
On September 11, 2014, Anita was transferred to a swing bed
at Milbank Hospital for post-operative rehabilitation. Dr.
Vichit Vanadurongvan examined Anita upon her arrival. His
notes reported that Anita was "doing quite well"
and that her "pain [was] under control." John
Lightfield, a physical therapist employed by Big Stone
Therapies, Inc., also examined Anita after her arrival. PT
Lightfield noted that during his evaluation, Anita had no
pain and had some tightness in her groin area. Later that
evening, an employee of the Milbank Hospital helped Anita
into bed. Anita heard a pop in her groin area, which she
later claimed did not cause her significant pain.
The next morning (September 12), Anita reported to hospital
nursing staff that she did not have any pain but continued to
experience "pulling" in her groin area. PT
Lightfield provided physical therapy services to Anita in the
morning and afternoon. Anita informed PT Lightfield about the
popping noise she experienced the night before. During both
physical therapy sessions, PT Lightfield used a geriatric
chair located in Anita's room. The chair was not designed
with a lever on the side. Thus, to recline the chair, PT
Lightfield had to personally push on the seat back. To return
the chair to a seated position, he had to manually push the
footrest down. Anita claimed that during the physical therapy
session, PT Lightfield placed a folding chair under the open
footrest to ensure that the footrest did not unexpectedly
return to a closed position, thereby causing the chair to
return to an upright position. PT Lightfield could not recall
if he used a folding chair but admitted that it could be
possible. He further testified that the use of a folding
chair "added reassurance" that the chair would not
fold into the seated position.
PT Lightfield's notes from the September 12 physical
therapy session indicated that Anita was able to perform the
same exercises she performed on September 11. She was also
able to ambulate farther in each session. PT Lightfield
reported that Anita was steady on her feet and that she
denied any increased pain.
On September 13, Heidi Pauli, a physical therapist also
employed by Big Stone, provided physical therapy services to
Anita. PT Pauli also used the geriatric chair in Anita's
room. Anita claimed that PT Pauli placed a folding chair
under the raised footrest similar to that done by PT
Lightfield. PT Pauli denied ever using a folding chair but
admitted that she had seen one be used in a physical therapy
session with a different patient.
During the physical therapy session with PT Pauli, Anita
performed the same exercises as the day before and performed
them without difficulty. She again was able to ambulate
farther and denied any increased pain throughout the day. PT
Pauli testified that it would be fair to say that Anita did
not have a fractured femur when the physical therapy session
On September 14, Anita woke with hardly any pain. She
showered and reported a slight increase in pain. She received
over-the-counter Tylenol. Laurie Batchelor, a physical
therapist employed by Big Stone, provided physical therapy
services to Anita in the afternoon. PT Batchelor also used
the geriatric chair in Anita's room. PT Batchelor noted
that Anita was tender and was having muscle spasms. She
altered Anita's therapy session. According to Anita,
after the session concluded, PT Batchelor left the room to
find someone to help her ease the footrest down on the
geriatric chair. Anita claimed that PT Batchelor could not
find anyone to assist and instead asked Anita's husband,
Marvin, to help. Anita and Marvin similarly claimed that
before Marvin could assist, PT Batchelor forced the footrest
shut, which caused Anita's leg to drop quickly and the
chair to return to an upright position. Anita alleged that
she screamed out in pain and that PT Batchelor abruptly left
the room and never returned.
PT Batchelor in contrast testified that after the physical
therapy session concluded, Anita said that she needed to use
the restroom. PT Batchelor claimed that Anita remained in the
geriatric chair while she left Anita's room to find a
nurse to assist. PT Batchelor testified that she found a
nurse to help and that the nurse and PT Batchelor "got
[Anita] back up" and to the bathroom. PT Batchelor
testified that she left Anita in the care of the nurse. She
denied that she ever asked Marvin to help close the chair.
She further testified that Anita never shouted out in pain;
instead Anita complained of more muscles spasms and raised
her voice in regard to the muscle spasms.
After the physical therapy session with PT Batchelor, Anita
described her pain as "off the chart." Nursing
staff documented Anita's report that her pain was
different or worse than previously experienced. Hospital
staff gave Anita pain medication and provided her ice for her
swelling leg. Anita's pain did not subside. Anita
testified that she told Anna Pakelder, a registered nurse at
Milbank Hospital, that the footrest had abruptly come down
during her physical therapy session. She claimed that it
caused her "breath-taking pain in her muscles on the
right upper leg." Anita testified that RN Pakelder
removed the geriatric chair from Anita's room and brought
back a chair with a lever on the side.
Anita's pain continued throughout the evening and night
of September 14. She received additional pain medication and
Demerol injections in both legs. On September 15, Milbank
Hospital x-rayed Anita's right leg. The x-ray showed
postsurgical changes to the right total hip arthroplasty,
namely a fracture of Anita's right proximal femur. Anita
was transported by ambulance to Prairie Lakes Hospital. Dr.
Vener met with Anita that same day. Anita informed Dr. Vener
about the popping noise she heard on September 11 and about
the footrest on the chair collapsing on September 14. Dr.
Vener testified that although Anita had informed him of the
incident with the chair, he did not record that incident in
his notes. He explained that he was more concerned about
addressing Anita's fractured femur.
On September 16, Dr. Vener performed a revision femoral
component right total hip arthroplasty and open reduction and
internal fixation right periprosthetic fracture of the
proximal femur. Anita remained at Prairie Lakes Hospital
until September 20, 2014, when she was transferred to Jenkins
Living Center for rehabilitation. She was discharged from
Jenkins Living Center on October 25, 2014.
In January 2016, Anita and Marvin brought suit against Big
Stone and Milbank Area Hospital. They alleged that Big Stone
"failed to provide proper physical therapy and
rehabilitation services to Anita Hanson[.]" They further
claimed that both Big Stone and Milbank Area Hospital
"failed to diagnose the fractured femur until September
15, 2014[.]" Anita averred that because of the
negligence of both defendants, she was injured. Marvin
claimed that as a result of the defendants' negligence,
he "lost the aid, comfort, society, advice,
companionship, and affection" of Anita for a period of
The Hansons identified Jonathan Reynolds, a physical
therapist and PhD, as an expert. They indicated that they
"anticipated that Dr. Reynolds [would] testify regarding
the care and treatment of Anita Hanson by Big Stone
Therapies, Inc. and Milbank Area Hospital Avera; the use of
the geriatric chair during Anita Hanson's physical
therapy; and the therapists' alleged negligence."
The Hansons reserved the right to supplement their expert
In his initial report, Dr. Reynolds opined that:
1. The physical therapy records of treatment rendered are
brief, illegible in ...