(dissenting).
[¶ 30.] I respectfully dissent.
[¶ 31.] Dr. Setliff is a liar. He lied to the court. He lied to the jury. Under oath.
[¶ 32.] In his federal litigation, Dr. Set-liff alleged that a complaint had been filed against him in Wyoming, that there was an investigation, that his privileges had been restricted and that the proceedings were a permanent blotch on his record. By contrast, at the jury trial in Brookings in which Dr. Setliff appeared as an expert, he testified that there had been no complaint in Wyoming, no investigation and no restriction. Which is it?
[¶ 33.] The majority ameliorates Dr. Setliffs lie as evasive, semantics and a “play on words.” To characterize Dr. Set-liffs testimony as evasive is an understatement.
Q: Do you agree, Dr. Setliff, that an investigation was done?
A: Absolutely not.
Q: Do you agree that your privileges were restricted ... or limited in any way while you were practicing in the state of Wyoming.
*609A: Absolutely not.
Dr. Setliffs response “[a]bsolutely not” was direct, not evasive. If the answer to either question should be “yes,” then “absolutely not” is a lie. Dr. Setliff cannot plead “semantics” or take refuge in a “play on words.” There is no wiggle room in “absolutely not.”
[¶ 34.] Dr. Setliff excuses his lie because an attorney said it was okay. Never mind that the doctor hired the attorney to tell him it was okay to he. Advice of counsel is no excuse for lying. See Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 28-29 (1985). See also Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 40, 575 N.W.2d 457, 465 (Gilbertson, J., concurring in part and dissenting in part). Dr. Setliff also points out that he was impeached at the trial in Brookings and therefore his he was not important. However, impeachment does not make lying right.
[¶ 35.] Nevertheless, Dr. Setliff is a liar. The board found by clear and convincing evidence that the doctor was a liar. This finding is not clearly erroneous.
[¶ 36.] Should lying under oath be grounds for suspension of his medical license? Yes. Why? Some might say that the only harm here is Dr. Setliffs dishonest testimony at trial, and there being no harm to a patient, his he should not affect his medical license to treat patients.
[¶ 37.] If Dr. Setliff would lie to a court and a jury under oath, what might he tell his patients when he is not under oath? Would he tell them they need surgery when they do not? Yes. That is exactly why Dr. Setliff faced discipline in Wyoming. And that is what he lied about in South Dakota. Under oath. To a jury.