#26441-r-SLZ
2013 S.D. 80
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
LISA LEWIS, Plaintiff and Appellee,
v.
SANFORD MEDICAL CENTER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN K. CALDWELL
Retired Judge
****
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.
****
ARGUED SEPTEMBER 30, 2013
OPINION FILED 11/20/13
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ZINTER, Justice
[¶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 by 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
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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.
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[¶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 relieve that pain. Lisa was
discharged from Sanford on September 27, 2007.
[¶8.] After her discharge, Lisa experienced problems with the pacemaker
and continuing medical issues. She obtained further treatment at Sanford for those
issues. The cause of her post-surgery problems was the issue at trial. Lisa claimed
that the flow of oxygen into her stomach during the aborted surgery caused cardiac
problems, which then caused the need for the pacemaker and additional medical
problems. Sanford, however, contended that none of her claimed problems were
caused by the aborted surgery.
[¶9.] Both parties called medical experts supporting their conflicting claims.
Lisa’s expert testified that the need for the pacemaker and Lisa’s subsequent
problems were caused by the aborted surgery. He also testified that Lisa’s
treatment at Sanford for the pacemaker and subsequent problems continued until
September 2011. However, neither he nor Lisa testified that there was any
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continuing treatment associated with the laparoscopic abdominal incisions after
Lisa’s discharge on September 27, 2007.
[¶10.] Sanford’s expert testified that Lisa’s sick sinus syndrome, symptomatic
bradycardia, need for a pacemaker and related complications, pain, and other
problems were not caused by Sanford’s negligence. He testified that any cardiac
problem caused by the surgery was only temporary. He further testified that, even
though Lisa’s sick sinus syndrome was discovered and first diagnosed immediately
after the surgery, it was a preexisting condition.
[¶11.] Lisa commenced this suit on October 7, 2010, more than three years
after her September 27, 2007 discharge from the hospital. Sanford moved for
summary judgment. It argued that Lisa’s claim was barred by the two-year medical
malpractice statute of limitations. Sanford also argued that the limitations period
was not tolled under the continuing treatment doctrine. The circuit court denied
the motion, concluding that genuine issues of material fact existed as to when
continuing treatment associated with the negligence ended.
[¶12.] After a five-day trial, the jury returned a verdict in favor of Sanford.
The jury found that Lisa did not suffer any damages legally caused by Sanford’s
negligence. Because the jury’s finding on causation and damages disposed of the
case in favor of Sanford, the jury did not consider any statute of limitations
questions.
[¶13.] Lisa moved for a new trial. She admitted that there was conflicting
evidence regarding the cause of her need for the pacemaker and her subsequent
medical problems. Therefore, she conceded that it “was within the jury’s
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prerogative” to find against her on that claim, and she brought her motion for a new
trial on another claim. She argued that there was no dispute that the laparoscopic
abdominal incisions made in the course of the aborted surgery caused discomfort
and pain, and the jury erred in not awarding some damages for that incisional pain.
The circuit court granted a new trial, but not on Lisa’s claim that she was entitled
to a new trial to determine damages for incisional pain. The court’s written decision
reflects that it granted a new trial on the claim for damages for the cardiac
problems—the claim that Lisa had conceded was within the jury’s prerogative to
find against her.
[¶14.] Sanford appeals. It argues that the circuit court abused its discretion
in granting a new trial. Alternatively, Sanford argues that the circuit court erred in
denying its motion for summary judgment on its statute of limitations defense.
Because the court ultimately allowed a reconsideration of all issues, we review the
court’s decision granting a new trial on both the claim for cardiac problems and the
claim for damages for incisional pain.
Decision
[¶15.] “If the trial court finds an injustice has been done by the jury’s verdict,
the remedy lies in granting a new trial.” Waldner v. Berglund, 2008 S.D. 75, ¶ 11,
754 N.W.2d 832, 835 (quoting Schuldies v. Millar, 1996 S.D. 120, ¶ 8, 555 N.W.2d
90, 95). We review the grant of a new trial under the abuse of discretion standard,
but “more deference is given to the trial court’s grant of a new trial than its denial
of one.” Reinfeld v. Hutcheson, 2010 S.D. 42, ¶ 5, 783 N.W.2d 284, 287 (quoting
Morrison v. Mineral Palace Ltd. P’ship, 1998 S.D. 33, ¶ 7, 576 N.W.2d 869, 870).
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[¶16.] However, deference to a trial court’s grant of a new trial is not without
limits. A trial court may set aside a jury’s verdict only “if the jury’s conclusion was
unreasonable and a clear illustration of its failure to impartially apply ‘the
reasoning faculty on the facts before them.’” LDL Cattle Co. v. Guetter, 1996 S.D.
22, ¶ 13, 544 N.W.2d 523, 527 (quoting Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.
1980)). “All inferences are indulged in favor of the nonmoving party[.]” Surgical
Inst. of S.D., P.C. v. Sorrell, 2012 S.D. 48, ¶ 9, 816 N.W.2d 133, 137 (quoting
Baddou v. Hall, 2008 S.D. 90, ¶ 33, 756 N.W.2d 554, 562). “If the jury’s verdict ‘can
be explained with reference to the evidence,’ it should be affirmed.” Reinfeld, 2010
S.D. 42, ¶ 8, 783 N.W.2d at 287 (quoting Waldner, 2008 S.D. 75, ¶ 14, 754 N.W.2d
at 836).
[¶17.] In this case, Lisa admitted that the cause of her need for the
pacemaker and subsequent medical problems was the subject of conflicting expert
evidence. Thus, Lisa admitted that there was no evidence relating to this issue
upon which the motion for new trial could be granted. She conceded that it “was
within the jury’s prerogative” to find that Sanford’s negligence did not cause her
need for the pacemaker and her subsequent medical problems. In her brief
supporting her motion for a new trial, she summarized:
Lisa did have a pacemaker placed on September 26, 2007, which
the jury apparently found was unrelated to [Sanford’s]
negligence. Reaching such a conclusion was within the jury’s
prerogative, and thus, Lisa relies on no evidence connected to
her heart condition and the pain associated therewith to seek a
new trial before [the circuit court].
[¶18.] Our review of the record confirms this position. The jury’s verdict
rejecting Lisa’s claim for damages relating to the pacemaker and subsequent
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medical problems is fully explained with reference to the evidence. Indeed, even on
appeal, Lisa admitted that “the expert testimony differed sharply on the
issue[,]”and that it was an “obvious fact” that there was “disputed testimony” on
this issue. Because there was competent evidence supporting the jury’s verdict in
favor of Sanford on this issue, the circuit court abused its discretion in granting a
new trial on the question of causation and damages relating to Lisa’s need for a
pacemaker and her subsequent medical problems. See Surgical Inst. of S.D., P.C.,
2012 S.D. 48, ¶ 9, 816 N.W.2d at 137 (“[I]f competent evidence exists to support the
verdict, it will be upheld.” (citation omitted)).
[¶19.] Lisa, however, contends that the jury clearly erred in awarding no
damages for the incisions that were made in the course of the aborted surgery. She
further contends that the jury returned a “general verdict,” and therefore, one
cannot “parse out” what the jury found by its verdict. Assuming that the basis for
the jury’s decision cannot be determined, Lisa argues that she is entitled to a new
trial on all issues, including the question whether her cardiac problems were caused
by the aborted surgery. We disagree.
[¶20.] First, the jury did not return a general verdict. In jury instruction
twenty, the jury was instructed: “the only issues for you to decide are whether the
plaintiff suffered any injury as a legal result of the defendant’s negligence, and if so,
the amount of damages, if any, the plaintiff is entitled to recover.” (Emphasis
added.) Additionally, the verdict form required the jury to determine only those two
elements of her tort claim: causation and damages. The jury resolved both
questions against Lisa, finding that none of her claims for damages were caused by
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Sanford’s negligence. Therefore, by rejecting all of Lisa’s asserted claims, the jury
necessarily rejected what was essentially the only claim Lisa presented during five
days of trial: that the negligent introduction of oxygen into her stomach caused her
need for a pacemaker and her subsequent problems.
[¶21.] We also note that Lisa herself has “parsed out” the verdict in this
manner. She moved for a new trial only on the issue of damages for incisional pain.
She specifically agreed that “the jury apparently found [that her cardiac and
subsequent problems were] unrelated to [Sanford’s] negligence.” We decline to view
the verdict on appeal differently than Lisa viewed it when arguing for a new trial
before the circuit court.
[¶22.] Having determined that the circuit court erroneously granted a new
trial on Lisa’s claim relating to her cardiac problems, we next consider whether the
court erred in granting a new trial on Lisa’s claim for incisional pain. SDCL 15-2-
14.1 requires that medical-malpractice actions be brought within two years from the
date of the alleged malpractice. Lisa commenced this suit in October 2010, more
than three years after the surgery that caused the abdominal incisions. Lisa,
however, contends that under the “continuing treatment” doctrine, the limitations
period was tolled until she stopped receiving treatment at Sanford. See Liffengren
v. Bendt, 2000 S.D. 91, ¶ 13, 612 N.W.2d 629, 632.
[¶23.] For the doctrine to apply, the continuing treatment must be “for the
same or related illnesses or injuries.” Id. ¶ 14 (citation omitted). The medical
practitioner must continue “to treat the patient for the particular disease or
condition created by the original act of [alleged] negligence.” Id. ¶ 17 (alteration in
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original) (quoting Conner v. St. Luke’s Hosp., Inc., 996 F.2d 651, 653-54 (4th Cir.
1993)). Therefore, the doctrine should be applied only when “the ‘professional’s
involvement after the alleged malpractice is for the performance of the same or
related services and is not merely continuity of a general professional relationship.’”
Bruske v. Hille, 1997 S.D. 108, ¶ 15, 567 N.W.2d 872, 877-78 (quoting Schoenrock v.
Tappe, 419 N.W.2d 197, 201 (S.D. 1988)).
[¶24.] The limitations period for Lisa’s claim for damages associated with her
abdominal incisions was not tolled by the continuing treatment doctrine. There is
no dispute that Lisa received no continuing treatment for incisional pain after her
discharge from Sanford on September 27, 2007, which was more than three years
before she brought suit. Indeed, in her new-trial motion, Lisa did not claim that she
was treated for incisional pain after September 27, 2007. Similarly, in response to
Sanford’s statement of undisputed facts, Lisa did not claim that there was a factual
dispute regarding continued treatment for her incisional pain that would trigger the
continuing treatment doctrine. Even on appeal, Lisa concedes that her incisional
pain only required her “to take pain medication for several days[.]” And at oral
argument, Lisa agreed that the continuing treatment related to the pacemaker.
Because Lisa received no continuing treatment for the incisional pain created by the
original negligence, the statute of limitations was not tolled.
[¶25.] Lisa, however, contends that we cannot know when her continuing
treatment ended because the jury never reached that question on the verdict form.
But Sanford did not appeal from the jury’s decision. Sanford appeals from the
circuit court’s denial of Sanford’s motion for summary judgment on its statute of
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limitations defense. Therefore, the question is whether the record reflects that Lisa
satisfied her summary judgment burden when a statute of limitations defense was
presented.
When faced with a summary judgment motion where the
defendant asserts the statute of limitations as a bar to the
action and presumptively establishes the defense by showing the
case was brought beyond the statutory period, the burden shifts
to the plaintiff to establish the existence of material facts in
avoidance of the statute of limitations[.]
One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 12, 752 N.W.2d 668, 675
(alteration in original) (quoting Peterson v. Hohm, 2000 S.D. 27, ¶¶ 7-8, 607 N.W.2d
8, 10-11) (internal quotation marks omitted). In this case, Sanford presumptively
established its statute of limitations defense by showing that Lisa brought this case
beyond the two-year limitations period in SDCL 15-2-14.1. Thus, the burden was
on Lisa “to establish the existence of material facts to show the statute of
limitations was somehow tolled.” Greene v. Morgan, Theeler, Cogley & Petersen,
1998 S.D. 16, ¶ 8, 575 N.W.2d 457, 459 (citation omitted).
[¶26.] Lisa did not satisfy that burden. She has not identified a single fact
suggesting that she received any continuing treatment for incisional pain after her
2007 discharge from Sanford. Consequently, Lisa’s remaining claim for damages
for incisional pain is barred by the two-year statute of limitations in SDCL 15-2-
14.1.
[¶27.] In sum, the circuit court abused its discretion in granting Lisa’s motion
for a new trial. On the issue of whether Lisa’s cardiac and subsequent medical
problems were caused by Sanford’s negligence, the jury’s verdict must be sustained
because it is explained with reference to the evidence. Further, Lisa’s remaining
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claim for damages for incisional pain was barred by the statute of limitations. The
circuit court erred as a matter of law in granting Lisa’s motion for a new trial, and
an error of law constitutes an abuse of discretion. Credit Collection Servs., Inc.,
2006 S.D. 81, ¶ 5, 721 N.W.2d at 476 (citation omitted).
[¶28.] Accordingly, we reverse the circuit court’s order granting a new trial.*
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
* Because we find that the circuit court abused its discretion in granting Lisa’s
motion for a new trial, we do not review Sanford’s other statute of limitations
question.
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