Papke v. Harbert

#24043, #24044-aff in pt, rev in pt & rem-JKK

2007 SD 87

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

ADELINE PAPKE, Plaintiff and Appellant,

v.

THOMAS HARBERT, M.D., MARK
HARLOW, M.D. and ABERDEEN
ORTHOPEDICS & SPORTS
MEDICINE, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE SCOTT P. MYREN
Judge

* * * *
RONALD A. PARSONS, JR.
SCOTT N. HEIDEPRIEM
BRENDAN V. JOHNSON of
Johnson, Heidepriem, Miner,
Marlow and Janklow, LLP
Sioux Falls, South Dakota

CHET GROSECLOSE Attorneys for plaintiff
Sioux Falls, South Dakota and appellant.

REED RASMUSSEN of
Siegel, Barnett and Schutz, LLP Attorneys for defendants
Aberdeen, South Dakota and appellees.

* * * *
ARGUED ON MARCH 19, 2007

OPINION FILED 08/15/07
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KONENKAMP, Justice

[¶1.] In this medical malpractice appeal, plaintiff contends that the circuit

court erred in giving the jury an “error in judgment” instruction and in other

respects. We affirm in part, reverse in part, and remand for a new trial.

Background

[¶2.] On September 3, 2002, Adeline Papke, age seventy, was outside

watering her flowers when her left knee gave out and she fell. She was unable to

get up on her own and was taken to the emergency room at Avera St. Luke’s

Hospital in Aberdeen, South Dakota. At the hospital, Papke reported a history of

degenerative joint disease in both knees. The emergency room physician admitted

her and contacted Dr. Thomas Harbert, an orthopedic surgeon, for further

evaluation.

[¶3.] Dr. Harbert examined Papke and recommended simultaneous bilateral

total knee replacement. On October 7, 2002, Dr. Harbert and his partner, Dr. Mark

Harlow, performed the dual knee surgeries. Dr. Harbert operated on Papke’s right

knee, while Dr. Harlow operated on her left. Three days after her surgery, her right

knee dislocated. Dr. Harbert reset the knee. She was still complaining of pain,

however, and, on October 16, 2002, she was admitted for inpatient physical therapy.

On October 17, 2002, her right knee again dislocated. This time, after resetting her

knee, Dr. Harbert applied a cast to her right leg, which extended from her thigh

down to her toes. He also scheduled revision surgery for her right knee for

November 8, 2002.

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[¶4.] On October 25, 2002, Papke was discharged from Avera and was

admitted to a nursing home to await her surgery. She was readmitted to Avera on

November 8, 2002, at which time it was discovered that her left knee was

dislocated. The surgery was postponed, and her left knee was placed in proper

alignment. Her left leg was also placed in a cast from her thigh down to her toes.

She returned to the nursing home on November 9, 2002. On November 22, 2002,

she went back to Avera for revision surgery on both knees. Dr. Harbert and Dr.

Harlow performed the surgeries. Thereafter, she remained in the hospital.

[¶5.] On December 2, 2002, Papke returned to the nursing home. The same

day, the nursing home staff documented the presence of multiple “stage 4 pressure

ulcers” on her right and left heels. On December 3, the nursing home took pictures

of the sores and contacted Dr. Warren Redmond, a dermatologist, who attempted to

treat her. Dr. Russell Pietz, Papke’s primary care physician, also treated her while

she was in the nursing home. Her knee surgeon, Dr. Harbert, saw her again on

December 16, 2002. During that visit, he noted his concern regarding her skin

ulcerations. He also noted the presence of “black eschar” in the same area as the

ulcerations. As a result of the “increased ulceration of her feet and continued

problems” Dr. Harbert brought in Dr. Bryce Iwerks, a surgeon with experience in

“vascular studies and examination of the lower extremity[.]”

[¶6.] On December 18, 2002, Dr. Iwerks diagnosed Papke with “[o]bvious

peripheral vascular disease.” His plan, according to his treatment notes, was to

“further evaluate with ultrasound and MRA and [provide] [f]urther

recommendations pending results.” Dr. Harbert met with Papke on December 30.

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In his treatment notes, he indicated that based on his consultation with Dr. Iwerks,

he would discuss with Papke her “treatment options[,] that being vascular bypass

surgery vs. amputation of the left lower extremity.”

[¶7.] On January 14, 2003, Papke was admitted to the Heart Hospital of

South Dakota in Sioux Falls for treatment of her ulcerations. According to her

admitting physician, Dr. Felipe Navarro, because of the severity of her condition, he

feared that she would lose her left leg. He proposed to assess her situation and

provide her with some pain medications to keep her comfortable. She was treated

at the Heart Hospital until January 18, 2003, when she was discharged to Avera

McKennan in Sioux Falls. Her ulcerations were not healing, and, on February 8,

2003, Dr. Robert Suga amputated her left leg above the knee. Thereafter, she

continued to receive treatment on her right leg. However, on April 17, 2003, her

right leg was also amputated above the knee. After recovering from her surgery,

she returned to the nursing home.

[¶8.] On January 31, 2005, Papke brought suit against Dr. Harbert, Dr.

Harlow, and Aberdeen Orthopedics & Sports Medicine (defendants), alleging

medical malpractice. She averred that her medical treatment fell below the

standard of care, resulting in her “gangrenous condition and double amputation.”

According to Papke, “defendants violated the standard of care when performing the

initial surgery by failing to perform a vascular examination and leaving the tissues

in the knee weak and globally unstable.” Secondly, she asserted that “defendants

misdiagnosed [her] vascular insufficiency following her first surgery and failed to

consult a vascular specialist in order to address the worsening problem.” She

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alleged that if defendants had referred her “to a vascular specialist when they

removed the casts on her legs immediately prior to the second surgery and

discovered the large black sores” her legs might still have been saved.

[¶9.] A jury trial was held in January 2006. At the settling of instructions,

Papke objected to the court’s instruction that stated, “A physician is not necessarily

negligent because the physician errs in judgment or because efforts prove

unsuccessful. The physician is negligent if the error in judgment or lack of success

is due to a failure to perform any of the duties defined in these instructions.”

(Emphasis added). According to Papke, the instruction erroneously and

unnecessarily supplanted the applicable standard of care. Defendants responded

that the instruction was proper based on established case law. This instruction,

they argued, would give them “the right to present to the jury [their] theory of the

case.” They explained that the concept of mistake in judgment was “heard from

most of the witnesses who have testified,” and what happened here “was a judgment

call, and this jury instruction is vital to our theory of the case.” The court overruled

Papke’s objection, concluding that the instruction accurately reflected the state of

the law in South Dakota.

[¶10.] During closing arguments, defendants drew the jury’s attention to the

error in judgment instruction, stating,

So things were going along as Dr. Harbert thought they would.
Unfortunately, as we know he was wrong. . . . But that did not, .
. . make him negligent and mean that he breached the standard
of care. The instructions clearly say that an error in judgment
does not necessarily amount to negligence. And doctors have to
make a lot of tough calls. They make judgment calls, and that’s
what happened here. And in retrospect, yeah, it was wrong; but
it’s not negligent.

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[¶11.] At the close of the case, the jury returned a verdict for defendants.

Papke moved for a new trial on three grounds. First, she asserted that jury

instruction 16, “absolving the defendants of negligence for an ‘error of judgment’

was misleading, confusing, and prejudicial.” 1 Second, she alleged that “she was

unfairly prejudiced by the admission of previously undisclosed expert testimony.”

Third, she “contended that even if the expert testimony in question had been

properly disclosed she was further unfairly prejudiced by its admission because it

was unreliable and lacked scientific foundation.” After a hearing, the circuit court

denied Papke’s motion.

[¶12.] Papke appeals asserting that the trial court erred when it (1) gave jury

instruction 16; (2) admitted previously undisclosed expert testimony on the issue of

causation; and (3) admitted scientifically unreliable expert testimony on the issue of

causation. Defendants filed a notice of review alleging that the court erred when it

(1) allowed Papke to enter into evidence the amount charged for her medical

expenses rather than the amount actually paid by Medicare and Medicaid; and (2)

denied defendants’ motion to compel production of a report reviewed by Papke’s

expert. We affirm in part, reverse in part, and remand.

1. The appellant’s briefs incorrectly refer to jury instruction 19, but the correct
instruction number is 16.

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Standard of Review

[¶13.] We recently clarified our standard of review on jury instructions in

Vetter v. Cam Wal Elec. Coop., Inc., 2006 SD 21, ¶10, 711 NW2d 612, 615.

A trial court has discretion in the wording and arrangement of
its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under
the abuse of discretion standard. See Luke v. Deal, 2005 SD 6,
¶11, 692 NW2d 165, 168; Parker v. Casa Del Rey-Rapid City,
Inc., 2002 SD 29, ¶5, 641 NW2d 112, 115. However, no court
has discretion to give incorrect, misleading, conflicting, or
confusing instructions: to do so constitutes reversible error if it
is shown not only that the instructions were erroneous, but also
that they were prejudicial. First Premier Bank v. Kolcraft
Enter., Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448 (citations
omitted). Erroneous instructions are prejudicial under SDCL
15-6-61 when in all probability they produced some effect upon
the verdict and were harmful to the substantial rights of a party.
Accordingly, when the question is whether a jury was properly
instructed overall, that issue becomes a question of law
reviewable de novo. Under this de novo standard, “we construe
jury instructions as a whole to learn if they provided a full and
correct statement of the law.” Id. ¶40 (quoting State v. Frazier,
2001 SD 19, ¶35, 622 NW2d 246, 259 (citations omitted)).

Id. (internal footnote omitted). A circuit court’s admission of expert testimony falls

within its broad discretion and is reviewed under the abuse of discretion standard.

In re Estate of Dokken, 2000 SD 9, ¶¶11, 39, 604 NW2d 487, 491, 498 (citations

omitted). A court’s evidentiary rulings are presumed correct. They will not be

reversed absent a showing of a clear abuse of discretion. Steffen v. Schwan’s Sales

Enter., Inc., 2006 SD 41, ¶19, 713 NW2d 614, 620 (citing Von Sternberg v. Caffee,

2005 SD 14, ¶13, 692 NW2d 549, 554 (citing Dokken, 2000 SD 9, ¶39, 604 NW2d at

498)).

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Analysis and Decision

1. Jury Instruction on Error in Judgment

[¶14.] Because the theory of Papke’s case was that defendants were negligent

in failing to refer her to a specialist, the court gave the jury the following

instruction:

It is the duty of a physician to refer a patient to a specialist or
recommend the assistance of a specialist if, under the
circumstances, a reasonably careful and skillful physician would
do so.

If the physician fails to perform that duty and undertakes to or
continues to perform professional services without the aid of a
specialist, it is a further duty to exercise the care and skill
ordinarily used by specialists in good standing in the same field
of specialization in the United States and under similar
circumstances.

The court also instructed the jury on the applicable standard of care for a specialist:

In performing professional services for a patient, a specialist in a
particular field of medicine has the duty to possess that degree
of knowledge and skill ordinarily possessed by physicians of good
standing engaged in the same field of specialization in the
United States.

A specialist also has the duty to use that care and skill
ordinarily exercised under similar circumstances by physicians
in good standing engaged in the same field of specialization in
the United States and to be diligent in an effort to accomplish
the purpose for which the physician is employed.

A failure to perform any such duty is negligence.

Instruction 16, the one challenged in this appeal, stated,

A physician is not necessarily negligent because the physician
errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of
success is due to a failure to perform any of the duties as defined
in these instructions.

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(Emphasis added). The jury was also instructed that “[t]he fact that an unfortunate

or bad condition resulted to the patient does not alone prove” negligence.

[¶15.] Papke argues that the court’s instructions on the “standard of care

fully and accurately apprised the jury of the applicable law,” and jury instruction

16, absolving defendants of negligence for an error in judgment, is an erroneous

statement of the law. This instruction, she contends, unnecessarily supplants and

dilutes the other standard of care instructions. Further, she believes the

instruction is confusing and misleading, and injects a subjective element in what is

clearly an objective standard of care for medical professionals. Papke asserts that

because defendants’ theory of the case focused on the error in judgment language

and how defendants did not commit malpractice, but only erred in judgment, she

was prejudiced by the instruction, warranting reversal and a new trial.

[¶16.] Defendants, on the other hand, assert that jury instruction 16 is a

correct statement of the law because it was taken from “South Dakota Pattern Jury

Instruction 105-01(C).” Defendants cite Shamburger v. Behrens, 380 NW2d 659,

663 (SD 1986) and Magbuhat v. Kovarik, 382 NW2d 43, 46 (SD 1986), where we

examined the phrases “good faith error of judgment” and “bona fide error of

judgment.” According to defendants, this Court’s holdings in Shamburger and

Magbuhat demonstrate that the Court was concerned only with the terms “good

faith” and “bona fide” and not with “error of judgment.” See 380 NW2d at 663; 382

NW2d at 46. Thus, they argue that as long as the instruction refrains from

including those phrases the error in judgment instruction is valid and consistent

with this Court’s past case law.

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[¶17.] In Shamburger, the challenged instruction absolved the defendant of

liability for a “good faith error of judgment.” 380 NW2d at 663. We noted that this

language came from our past cases, which declared that “[a] physician is not an

[e]nsurer of the correctness of his judgment” and “is not liable for . . . a bona fide

error of judgment of which he may be guilty.” Id. (quoting Block v. McVay, 80 SD

469, 475-76, 126 NW2d 808, 811 (1964) (additional citation omitted)). We

recognized that several courts have reexamined the use of this language and “have

held that the use of such terms as ‘honest mistake,’ ‘bona fide error in judgment,’ or

‘good faith error of judgment’ have no place in medical malpractice instructions.”

Id. Quoting a case from the Connecticut Supreme Court, we stated,

“[T]o use such a phrase in a charge upon negligence serves only
to confuse the jury by implying that only an error of judgment
made in bad faith can be actionable. The central issue in the
ordinary negligence case is whether the defendant has deviated
from the required standard of reasonable care, not his mental
state at the time of the conduct[.]”

Id. (quoting Logan v. Greenwich Hosp. Ass’n, 465 A2d 294, 303 (Conn 1983)).

Consequently, we held that instructions containing the phrase “good faith error of

judgment” should no longer be given. Id.

[¶18.] The same year, in Magbuhat, we examined the phrase “bona fide error

in judgment.” 382 NW2d at 46. After recognizing that “[t]he negligence standard

for doctors is no different than that for other professionals” we stated,

The issue on which the jury should be instructed in a medical
malpractice action is whether the doctor deviated from the
required standard of care. That deviation is not conditioned on
bad faith or the physician’s state of mind at the time of the
alleged negligence.

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Id. Therefore, we declared the “bona fide error in judgment” instruction was also

improper. Id.

[¶19.] Shamburger and Magbuhat make clear that medical malpractice jury

instructions that contain the phrases “bona fide” or “good faith” are improper.

However, we have never decided whether the use of “error in judgment” or similar

language, not in conjunction with the terms “good faith” or “bona fide,” would also

be erroneous. Today, we address the question whether use of error in judgment or

similar language is contrary to South Dakota law.

[¶20.] Papke directs us to cases from other jurisdictions that have held that

use of error in judgment or any similar language is inappropriate. Defendants, in

turn, cite cases that hold such language is proper in medical malpractice actions. In

examining out-of-state jurisprudence on the issue, we note that not all error in

judgment instructions are phrased identically. However, as stated in Parodi v.

Washoe Medical Center, Inc., “any instruction specifying nonliability for certain

errors in judgment, or the applicability of ‘honest’ or ‘best’ judgment, may fall under

the rubric of ‘error-in-judgment.’” 892 P2d 588, 591 (Nev 1995). Therefore, we

examine the cases that analyze instructions that fit under the error in judgment

rubric.

[¶21.] It appears that there are essentially three prevailing views. Some

courts categorically disallow the use of error in judgment or similar language in all

circumstances. 2 Others only allow the language if it is first determined that an

2. Jefferson Clinic, P.C. v. Roberson, 626 So2d 1243, 1247 (Ala 1993); Sleavin v.
Greenwich Gynecology and Obstetrics, P.C., 505 A2d 436, 440 (Conn 1986);
(continued . . .)
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evidentiary basis exists to do so, depending on the particular facts of the case.3 The

remaining courts permit the use of error in judgment or similar language, as long as

the instruction does not contain terms such as “good faith” or “bona fide.” 4

A. “Error in Judgment” Instruction Improper

[¶22.] We begin our analysis with those decisions that have declared the use

of error in judgment or similar language improper in jury instructions for any

medical malpractice case. In Rogers, 772 P2d at 930-32, the Oregon Supreme Court

reviewed the history of the error in judgment terminology. It observed that this

language “derives in part from the notion that a doctor does not promise a cure and

that an untoward result might not be the result of negligence.” Id. at 930 (citing

Hills v. Shaw, 137 P 229, 230 (Or 1913); Langford v. Jones, 22 P 1064, 1070 (Or

1890)). The language, the court stated, “stems in part from the recognition that if

there is more than one acceptable treatment option, then selection of any one of

__________________
(. . . continued)
Hirahara v. Tanaka, 959 P2d 830, 834 (Hawaii 1998); Peters v. Vander Kooi,
494 NW2d 708, 712 (Iowa 1993); Bickham v. Grant, 861 So2d 299, 303 (Miss
2003); Parodi, 892 P2d at 591 n3; Rogers v. Meridian Park Hosp., 772 P2d
929, 933 (Or 1989); Yates v. Univ. of West Virginia Bd. of Trustees, 549 SE2d
681, 689 (WVaCtApp 2001); Rooney v. Medical Center Hosp. of Vermont, Inc.,
649 A2d 756, 760 (Vt 1994).

3. Borja v. Phoenix General Hosp., Inc., 727 P2d 355, 357-58 (ArizCtApp 1986);
Ouellettee v. Subak, 391 NW2d 810, 816 (Minn 1986); Das v. Thani, 795 A2d
876, 881-82 (NJ 2002); Patterson v. Hutchens, 529 NW2d 561, 566 (ND 1995);
Francoeur v. Piper, 776 A2d 1270, 1274-75 (NH 2001); Nestorowich v.
Ricotta, 767 NE2d 125, 128-29 (NYCtApp 2002); Vallone v. Creech, 820 A2d
760, 764-65 (Pa 2003); Kobos v. Everts, 768 P2d 534, 537-38 (Wyo 1989).

4. Rainer v. Cmty. Mem’l Hosp., 18 CalApp3d 240, 259 (CalCtApp 1971);
DiFranco v. Klein, 657 A2d 145, 148-49 (RI 1995); Ezell v. Hutson, 20 P3d
975, 976-77 (WashCtApp 2001).

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them is not negligence [and] a doctor is not liable for untoward results if he or she

used reasonable care in selecting one of those options.” 5 Id. at 930-31 (citation

omitted).

[¶23.] The Rogers court noted that multiple jurisdictions have disapproved of

the instruction, either partly or entirely. Id. at 932 (citing Logan, 465 A2d at 303

(invalidating the “bona fide error in judgment” language); Watson v. Hockett, 712

P2d 855 (WashCtApp 1986), aff’d, 727 P2d 669 (Wash 1986) (error in judgment

language is improper)). Using the rationales from these decisions, the Oregon court

held that use of the error of judgment instruction, even without the phrase “good

faith,” was no longer proper for any medical malpractice action. Id. at 933. Such

language, the court wrote, “suggest[s] that the physician’s duty to ‘exercise

reasonable judgment’ turns on the existence of ‘reasonable differences of opinion.’”

Id. This is “incorrect” because “[t]he obligation to exercise reasonable judgment

always exists, whether or not ‘there may be reasonable differences of opinion among

members of the medical community as to . . . the proper course of treatment.’” Id.

(emphasis added).

[¶24.] In specific regard to the use of the phrase “error of judgment,” the

court declared that it

5. In 1984, use of the phrase “good faith” along with the error of judgment
instruction was invalidated because “‘good faith’ in the instruction confused
matters and had no place in an action for ordinary medical negligence.” Id.
at 932 (citing Ellis v. Springfield Women’s Clinic, P.C., 678 P2d 268, 270
(OrCtApp 1984), rev. denied, 683 P2d 91 (Or 1984). Then, in Rogers, the
court was asked to decide whether use of the error in judgment language,
either in whole or in part, should also be prohibited.

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makes it appear that some types of negligence are not culpable.
It is confusing to say that a doctor who has acted with
reasonable care has nevertheless committed an error of
judgment because untoward results occur. In fact, bad results
notwithstanding, if the doctor did not breach the standard of
care, he or she by definition has committed no error of
judgment.”

Id. (first emphasis in original) (remaining emphasis added). According to the court,

“[t]he source of the problem is the use of the word ‘error.’” Id. This is because

“error” by definition could lead a jury to conclude that “a judgment resulting from

an ‘ignorant or imprudent deviation from a code of behavior’ is not a breach of the

standard of care.” Id. (quoting Webster’s Third New International Dictionary 772

(unabridged 1971)). Moreover, the court opined that “[i]f the term ‘judgment’ refers

to choices between acceptable courses of treatment, then the term ‘error in

judgment’ is a contradiction in itself [and using] any acceptable alternative would

not be an ‘error.’” Id. Thus, the court held that error in judgment or any similar

language would no longer be permitted in Oregon medical malpractice actions.

[¶25.] Relying on the Oregon Supreme Court’s rationale in Rogers, the

Hawaii Supreme Court held that “any jury instruction that states that a physician

is not necessarily liable for an ‘error in judgment’ is confusing and misleading and

should not be given to the jury.” Hirahara, 959 P2d at 834 (citing Rogers, 772 P2d

at 933). Even though the court recognized that “[i]t is not negligent for a physician,

based on the knowledge that he reasonably possess at the time, to select a

particular course of treatment among acceptable medical alternatives[,]” it declared

that “it is a breach of the duty of care for a physician to make an erroneous choice if,

at the time he made the choice, he should have had the knowledge that it was

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erroneous.” Id. The court held that a different jury instruction, which explained to

the jury that the physician would not be liable simply because a bad result occurred,

adequately stated the law, when used in conjunction with the applicable standard of

care instruction. Id. The court further wrote that use of “best judgment” language

was similarly confusing and should no longer be used. Id. at 835.

[¶26.] The Iowa Supreme Court also disapproved of an instruction that

informed the jury that “[a]n unsuccessful effort, mistake, or error in judgment by a

physician is not necessarily negligence but is a circumstance to be considered.”

Peters, 494 NW2d at 711-12. The court took issue with other instructions, such as,

[T]he defendant cannot be found negligent merely because of a
mistake in the treatment of his patients. Any error in
treatment, if you find any, does not in and of itself constitute
negligence. For the defendant to be found negligent, it must be
shown by a preponderance of the evidence that the defendant, in
treating the patient’s condition, failed to use the degree of skill,
care and learning ordinarily possessed and exercised by other
general family practitioners in similar circumstances, as
explained to you in Instruction No. 13.
...
[T]he defendant cannot be found negligent merely because of a
mistake in the diagnosis of his patients. Any error in diagnosis,
if you find any, does not in and of itself constitute negligence.
For the defendant to be found negligent, it must be shown by a
preponderance of the evidence that the defendant in diagnosing
the patient’s condition, failed to use the degree of skill, care and
learning ordinarily possessed and exercised by other general
family practitioners in similar circumstances, as explained to
you in Instruction No. 13.

Id. at 712. These instructions, the court held, “are not statements of the law that

determine a physician’s duty of care.” Id. Rather, “[t]hey are comments on

potential factual scenarios in which the standard of care may or may not have been

adhered to [and] amount to comments on the evidence, which were determined in

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Hutchinson [v. Broadlawns Medical Center, 459 NW2d 273, 276-77 (Iowa 1990)] to

be unnecessary for the jury’s determination of the issues.” Id. As in Hutchinson,

the Iowa Supreme Court reiterated its mandate that these instructions not be given

in the future. Id.

[¶27.] The West Virginia Court of Appeals was asked to decide whether use of

the “multiple methods of treatment” or “mistake in judgment” instructions were

permitted. Yates, 549 SE2d at 688-90. In the first regard, the court held that the

multiple methods of treatment instruction was proper. Id. The instruction, the

court stated, “is a necessary recognition that the practice of medicine is an inexact

science often characterized by a myriad of therapeutic approaches to a medical

problem, all of which may command respect within the medical profession.” 6 Id. at

688.

[¶28.] However, according to the court, the mistake in judgment instruction

was improper, because the West Virginia Supreme Court had already disapproved

of the use of “error in judgment.” Id. at 690 (citing Pleasants v. Alliance Corp., 543

6. The instruction states,
A doctor is not negligent if he selects one of several or more approved
methods of treatment within the standard of care. In other words, if
there is more than one generally recognized method of diagnosis or
treatment and no one method is used exclusively or uniformly by all
physicians, a physician is not negligent if, in the exercise of his medical
judgment, he selects one of the approved methods within the standard
of care-even if you believe in retrospect that the alternative chosen
may not have been the best method of treatment-as long as he utilizes
that method of treatment in a non-negligent manner as otherwise
instructed by the Court.
Id.

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SE2d 320, 331 (WVa 2000)). 7 Such language, the court held, “wrongly injects

subjectivity into an objective standard of care, [and] is argumentative and

misleading[.]” Id. The court specifically held that the mistake in judgment

language should no longer be used when instructing the jury in medical malpractice

actions. Id.

[¶29.] The Connecticut Supreme Court first examined the use of “bona fide

error in judgment” in Logan, where it noted that in the past use of bona fide or

other similar language had been acceptable. 465 A2d at 298-99 (citing Green v.

Stone, 185 A 72 (Conn 1936); Levett v. Etkind, 265 A2d 70 (Conn 1969)). In Logan,

however, the court declared that such language implies “that only an error in

judgment made in bad faith may be actionable[.]” Id. at 303. Therefore, it held that

the controlling standard of care is ordinary negligence. Id. (citing Restatement

(Second) Torts § 463 cmt b).

[¶30.] Then in Sleavin, 505 A2d at 440, the court focused specifically on the

use of an “error in judgment charge.” The plaintiff had challenged multiple

provisions used by the trial court when it instructed the jury. Id. at 438. In

examining the instructions on appeal, the Connecticut Supreme Court focused on

the following phrases, “He is not to be judged by the result, nor is he necessarily to be

held liable for an error in judgment” and “The rule that an obstetrician/gynecologist

is not liable for a mistake of judgment is not ironclad[.]” Id. at 438 (emphasis in

7. In Pleasants, the court found the instruction to be erroneous, but did not
reverse because it concluded that the error was harmless. 543 SE2d at 331-
32.

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original). Recognizing that the primary function of a jury instruction is to assist the

jury in applying the correct law to particular facts, the Connecticut court held that

the language used by the lower court was an erroneous statement of the law. 8 Id.

at 440.

[¶31.] According to the Vermont Supreme Court, the original intent of the

best judgment or error in judgment instruction—to inform the jury “that a doctor

may choose among several proper alternatives, even though the one chosen leads to

an unfortunate result—is not self-evident.” Rooney, 649 A2d at 760. Even though

the court recognized that it had “upheld instructions that tend to explain what the

standard of care is not,” it declared that the use of best judgment or mere error in

judgment was not in accord with the applicable objective standard of care. Id.

(internal citation omitted). Moreover, recognizing that multiple jurisdictions have

similarly rejected the error in judgment instruction, as well as the use of the word

“judgment,” the court held that use of the error in judgment language was also

erroneous. Id. at 761.

[¶32.] The Nevada Supreme Court, in reviewing whether an error of

judgment or best judgment instruction was proper, recognized that the instruction

derived from California. Parodi, 892 P2d at 591 n3. The court, however, now

believed that the instruction “may confuse jurors into focusing on the health care

provider’s subjective intentions and judgments rather than on the real issue of

whether the health care provider’s conduct conformed to an objective standard of

8. The court did, however, review the instructions as a whole and determined
that the erroneous instructions were harmless. 505 A2d at 441.

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#24043, #24044

care.” Id. at 591. Therefore, the court invalidated future use of the instruction and

expressed its agreement with the “growing number of courts that have rejected the

error-in-judgment instruction.” Id. (also noting that one jurisdiction abandoned the

use of “honest,” but not yet error in judgment in its entirety).

[¶33.] In Day, the Mississippi Supreme Court held that use of mere error of

judgment language has no place in medical malpractice actions. 657 So2d at 815.

The court disapproved of the use of the word “error” because none of the “generally

known” definitions of the word “comport with the language in [the] standard of care

requiring a physician to maintain a certain level of competence.” Id. at 814. The

“generally known” definitions were important to the court because ordinary

dictionary definitions for the word “error” are “necessary to explain the everyday

meaning attached to words, reflecting the notions a jury might hold.” Id. at 814.

[¶34.] The Mississippi court then explained that just because an instruction

does not use the word “error,” the use of “judgment” in connection with other words

can nevertheless lead to a subjective jury instruction. Bickham, 861 So2d at 303.

In Bickham, the court examined whether use of “in the exercise of their best

judgment” was proper. Id. It declared that this instruction produced a negative

effect on the plaintiff’s case, and placed juries in the position of “assessing the

mental state of treating physicians[.]” Id. Simply because the word “error” was

omitted, the court held, did not lead to a different conclusion. Id. Rather, juries

were to be instructed on the appropriate standard of care for medical malpractice

actions, which “is objective and centers around exercising the degree of care,

diligence and skill ordinarily possessed and exercised by a minimally competent and

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#24043, #24044

reasonably diligent, skillful, careful, and prudent physician in that field of practice.”

Id.

[¶35.] Finally, the Alabama Supreme Court in Jefferson Clinic, P.C., 626

So2d at 1247, held that to inject “subjective standards rather than objective

standards into the jury’s deliberative process clearly causes confusion.” While

previous courts were asked to examine instructions that appeared to limit liability

for a medical care provider, the Alabama court was asked to review the opposite

instruction. Id. at 1245. The instruction stated that “it is no defense for the

defendant physician or defendant medical clinic that errors, mistakes, acts, or

omissions of the defendant physician or the agents and employees of the defendant

medical clinic were made in good faith or through an error of judgment.” Id.

(emphasis added). Because the court had previously invalidated the use of the

honest error charge to eliminate jury confusion, the court held that the opposite

instruction was also improper, as it still created jury confusion. Id. at 1247.

B. “Error in Judgment” Instruction Proper in Limited
Circumstances

[¶36.] We next review the rationale of those jurisdictions that allow the use of

an error in judgment or similar instruction, provided that there exists an

evidentiary basis to do so. The plaintiffs in Ouellette, 391 NW2d at 815 (citations

omitted) questioned the appropriateness of the honest error rule, asserting that it

potentially misleads, conflicts “with the ordinary care language suggesting a

disjunctive standard of care for a physician,” or “‘confuses’ the jury by implying only

bad faith errors are actionable.” The Minnesota Supreme Court noted that

“[p]rofessionals are hired for their judgment and skill [and] . . . if the claim involves
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#24043, #24044

a question of professional judgment, a choice of strategies or treatment, there may

be a need . . . to caution the trier of fact in applying the standard of care to the

professional’s conduct.” Id. at 815 (internal citation omitted). Therefore, the court

stated,

If there are two methods of treatment for a particular medical
condition, both accepted by the medical profession, then it is a
matter of professional opinion or judgment which is best, and
the doctor’s choice of either is, ordinarily, not negligence.

Id. (emphasis added). Yet, the court, thereafter, held that the honest error in

judgment language is inappropriate. The court instead proposed its own language

for how a jury should be instructed in a medical malpractice action. 9 Id. at 816.

[¶37.] The Wyoming Supreme Court acknowledged that a physician is subject

to the “standard of reasonable care.” Kobos, 768 P2d at 538. However, the court

explained that “[a]n error of judgment charge is appropriate in a case where a doctor

is confronted with several alternatives and, in determining the appropriate

treatment to be rendered, exercises his judgment by following one course of action

in lieu of another.” Id. at 538 (emphasis added) (citations omitted). The court

9. The court’s proposed instruction stated,
A doctor is not negligent simply because his or her efforts prove
unsuccessful. The fact a doctor may have chosen a method of
treatment that later proves to be unsuccessful is not negligence if the
treatment chosen was an accepted treatment on the basis of the
information available to the doctor at the time a choice had to be made;
a doctor must, however, use reasonable care to obtain the information
needed to exercise his or her professional judgment, and an
unsuccessful method of treatment chosen because of a failure to use
such reasonable care would be negligence.
Id. at 816.

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#24043, #24044

declared that the instructions “must clearly reflect the factual situation presented

in the case as well as the applicable law.” Id. at 539 (citation omitted). For

example, the court stated that when the plaintiff’s theory involves “misdiagnosis

non-action” as the basis for defendant’s negligence, then the error in judgment jury

instruction would be improper. Id.

[¶38.] Similarly, in Nestorowich, 767 NE2d at 128, the New York Court of

Appeals recognized that “[i]mplicit within the concept of due care is the principle

that doctors must employ their ‘best judgment in exercising . . . skill and applying

[their] knowledge.’” Id. (citations omitted). Therefore, according to the court,

collateral doctrines such as the error in judgment instruction would be

appropriate in instances where parties present evidence of a
choice between or among medically acceptable alternatives or
diagnoses. Absent a showing that “defendant physician
considered and chose among several medically acceptable
alternatives” the error in judgment charge has been found
inappropriate.

Id. at 129 (emphasis added) (internal citations omitted). The court wrote,

This limited application of the error in judgment charge
preserves the established standard of care. Broader application
of the charge would transform it from a protection against
second-guessing of genuine exercises of professional judgment in
treatment or diagnosis into a cloak for professional misfeasance.
The doctrine was intended to protect those medical professionals
who, in exercising due care, choose from two or more responsible
and medically acceptable approaches. A distinction must
therefore be made between an “error in judgment” and a doctor’s
failure to exercise his or her best judgment. Giving the “error in
judgment” charge without regard for this distinction would
otherwise relieve doctors whose conduct would constitute a
breach of duty from liability.

Id. at 129. The facts of Nestorowich, however, were not “based on an alleged error

of judgment” and the plaintiffs did not “urge that defendant’s mistake was an ‘error

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#24043, #24044

of judgment’ occasioned by a choice between two or more medically acceptable

treatment alternatives.” Id. at 130. Therefore, the court held that the instruction

was improper. Id.

[¶39.] The Arizona Court of Appeals similarly allowed an instruction that

used the “error in judgment” or “two schools of thought” language. Borja, 727 P2d

at 357. The court observed that the instruction informed the jury that “a doctor

does not commit malpractice simply because he employs a method of diagnosis or a

course of treatment that some doctors do not find efficacious. So long as a

respectable minority of physicians approve the disputed technique and so long as

the defending doctor properly employed that technique, he has not fallen below the

standard of care.” Id. (citation omitted). Therefore, in cases where there is

“testimony evidencing a conflict of methodology,” the court held that the instruction

would be proper. Id. at 358.

[¶40.] New Jersey does not employ the precise error in judgment language in

its jury instructions; however, in Das, 795 A2d at 882-83, the New Jersey Supreme

Court examined the appropriateness of using the phrase “medical judgment.” In

allowing the instruction, the court imposed the duty on the trial court to “analyze

the parties’ testimony and theories in detail, on the record, to determine whether

the [medical judgment] charge is applicable at all and, if so, to which specific

issues.” Id. at 883. According to the court, “a medical judgment charge that does

not specify what action may qualify as an appropriate exercise of judgment may

result in an overly broad charge that has ‘the potential to improperly insulate

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#24043, #24044

defendants from liability.’” 10 Id. (citing Velazquez v. Portadin, 751 A2d 102, 107-08

(NJ 2000)).

[¶41.] In 2003, the Pennsylvania Supreme Court examined whether it was

proper for the lower court to grant a new trial because the court provided a mere

error in judgment instruction. Vallone, 820 A2d at 765. The court held that the

mere error in judgment charge confused the jury and was not supported by the

evidence. Because trial courts “should not charge the jury on a concept that is not

supported by the evidence” the court declared that it was appropriate for the lower

court to order a new trial. Id. (citation omitted). However, in Pennsylvania, courts

are permitted to instruct the jury on the two schools of thought theory, which

explains that “‘[w]here competent medical authority is divided, a physician will not

10. For example, the court stated, with respect to the facts of Das, that
the jury first should have been instructed that if it believed plaintiff’s
expert that defendant deviated from the standard of care by not
monitoring plaintiff’s pregnancy with ultrasounds, electronic fetal
monitoring and biophysical profiles, then it may not excuse defendant’s
omissions as medical judgment. Conversely, if it believed defendant’s
expert that maternal fetal monitoring complied with the standard of
care, then the selection of one of two generally accepted courses of
treatment was an exercise of medical judgment for which defendant
could not be liable. Stated differently, the jury should have been
instructed that in order for defendant to prevail based on the exercise
of medical judgment, the jury had to find that maternal fetal
monitoring represented an equally acceptable approach to the other,
more modern alternatives. The jury instructions must incorporate the
evidence and the legal theories of liability and make clear that medical
“judgment does not represent a departure from the requirements of
accepted medical practice.” Schueler [v. Strelinger,] 204 A2d 577[, 585
(NJ 1964).] That is the only way to make clear to a jury what action
may qualify as an acceptable exercise of medical judgment.
Id. at 883-84.

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#24043, #24044

be held responsible if in the exercise of his judgment he followed a course of

treatment advocated by a considerable number of recognized and respected

professionals in his given area of expertise.’” Jones v. Chidester, 610 A2d 964, 969

(Pa 1992). In such cases, the defendant, not the plaintiff, has the burden of proving

that there are two schools of thought warranting the use of such instruction. Id.

[¶42.] In North Dakota, the Supreme Court held that because there was

evidence that the physician had to choose between one of several treatment

alternatives, the error in judgment instruction was proper. Patterson, 529 NW2d at

566. The court also upheld the use of the instruction because “the trial court’s ‘error

in judgment’ language was adequately explained in the challenged instruction.” 11

Id.

[¶43.] Lastly, in Francoeur, 776 A2d at 1274, the New Hampshire Supreme

Court noted that when a doctor exercises due care, that may permit him or her “to

exercise judgment in choosing among several courses of treatment.” Therefore, the

court agreed that “when various methods of treatment for a particular medical

11. The instruction stated,
In administering to his patient, a physician must be free to exercise
reasonable judgment and is not liable for an error in judgment not
arising from his negligence.

When there is reasonable doubt as to what should be done in
accordance with reasonable current practice, he is not responsible for a
reasonable decision which turns out to be erroneous. However, this
error in judgment does not extend to a case in which the situation
precipitating the erroneous decision occurs because of the doctor’s lack
of the knowledge which he should possess or the failure to exercise that
degree of skill and care which it is his duty to apply.
Patterson, 529 NW2d at 566.

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#24043, #24044

condition exist, all of which meet the standard of reasonable professional practice,

then choosing the best method is a matter of professional judgment.” Id. (emphasis

added). However, the court held that “[b]ecause the ‘mere error of judgment’

instruction is reasonably capable of confusing or misleading the jury regarding the

reasonable standard of professional practice and whether defendant failed to act in

accordance with that standard,” the instruction was not proper. Id. at 1275.

C. “Error in Judgment” Instruction Proper

[¶44.] We now examine the rationale of those jurisdictions that have adopted

the third view—allowing the use of error in judgment or similar language in a

medical malpractice action. In Ezell, 20 P3d at 976, the Washington Court of

Appeals stated that “Washington courts have long approved the use of an ‘error of

judgment’ instruction in medical malpractice cases.” It did, however, recognize that

the use of “honest” in conjunction with error in judgment had been prohibited

because it “impart[s] ‘an argumentative aspect into the instruction’ and erroneously

suggest[s] that only ‘dishonest’ errors [are] actionable.” Id. at 976-77 (citing

Watson, 727 P2d at 673-74). Nevertheless, the court held that the use of an error in

judgment instruction was proper because it reinforced that “medicine is an inexact

science in which results are not guaranteed and professional judgment may

reasonably differ.” Id. (citing Watson, 727 P2d at 673-74).

[¶45.] The Rhode Island Supreme Court stated that “as long as a physician

exercises the applicable degree of care, he or she may choose between differing but

accepted methods of treatment and not be held liable.” DiFranco, 657 A2d at 148

(citations omitted). This, the court explained, “has become known as the ‘medical

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#24043, #24044

judgment’ or ‘error in judgment’ doctrine.” Id. The court further declared that

“because a physician’s professional judgment is such a fundamental and

indispensable element of practicing medicine,” it is permissible to give an

instruction that states that the physician “is not negligent in choosing a treatment

that later proves to be unsuccessful so long as the treatment chosen was an

appropriate treatment based on the information then available to a reasonably

prudent doctor in like circumstances.” Id. (citing Barker v. Lane, 49 A 963 (RI

1901); Coleman v. McCarthy, 165 A 900, 902 (RI 1933); see also Oullette, 391 NW2d

at 816). However, the court expressly held that use of phrases such as “good faith,”

“good faith judgment,” “honest mistake,” and “honest error in judgment” should not

be used. Id. These phrases, the court stated, erroneously imply “that only

dishonest or bad-faith deviations from the applicable standard of care constitute

actionable negligence.” Id. (citations omitted).

[¶46.] Lastly, California explicitly allows the use of an error in judgment

instruction. Fraijo v. Hartland Hosp., 99 CalApp3d 331, 342-43 (CalCtApp 1979);

Rainer, 18 CalApp3d at 260. The language is set forth in its pattern jury

instructions and has been repeatedly upheld by the courts. See Fraijo, 99 CalApp3d

at 342-43; Rainer, 18 CalApp3d at 260. However, it is important to point out that

California imposes a separate professional negligence standard of care different

than ordinary negligence. 12 Flowers v. Torrance Mem’l Hosp. Med. Ctr., 884 P2d

12. For other professional malpractice cases besides medical malpractice,
California permits the error in judgment instruction, as follows:
[A] [An] ________ is not necessarily negligent because [he] [or]
[she] errs in judgment or because [his] [or] [her] efforts prove
(continued . . .)
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#24043, #24044

142 (Cal 1994) (discussing the existence of a professional standard, yet noting that

the distinction “merely serves to establish the basis by which [the standard] will be

calculated and the defendant’s conduct evaluated”). In accordance with California

Pattern Jury Instructions, courts are permitted to instruct juries in medical

malpractice actions that

[a] physician is not necessarily negligent because [he] [or] [she]
errs in judgment or because [his] [or] [her] efforts prove
unsuccessful. The physician is negligent if the error in judgment
or lack of success is due to a failure to perform any of the duties
as defined in these instructions.

California Civil Jury Instructions (BAJI 6.02 “Medical Perfection Not Required”)

(emphasis added).

D. “Error in Judgment” in South Dakota Should Be Limited

[¶47.] Although we have examined the three general views adopted on this

issue, there are also multiple jurisdictions that have settled on a position that does

not clearly fit within one of these three categories. See Somer v. Johnson, 704 F2d

1473, 1477 (11thCir 1983); Riggins v. Mauriello, 603 A2d 827, 830-31 (Del 1992);

Hartman v. Shallowford Cmty. Hosp., Inc., 466 SE2d 33, 36 (GaCtApp 1995); Wall

v. Stout, 311 SE2d 571, 577 (NC 1984); Kurzner v. Sanders, 627 NE2d 564, 567

__________________
(. . . continued)
unsuccessful. However, [a] [an] ________ is negligent if the error
in judgment or lack of success is due to a failure to perform any
of the duties as defined in these instructions.
Id. (quoting BAJI 6.37.2 “Professional Perfection Not Required”) (emphasis
added).

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#24043, #24044

(OhioCtApp 1993). 13 These cases are similar to this Court’s holding in Shamburger

13. In Somer, the Eleventh Circuit Court of Appeals explained that after the
Florida Supreme Court Committee on Standard Jury Instructions adopted an
instruction setting forth the standard of care for physicians, which did not
include error in judgment or similar language and the committee
“condemned” the error in judgment language, Florida appellate courts began
to express their disapproval of the honest error of judgment and similar
instruction language. 704 F2d at 1477 (citations omitted). Therefore, the
court concluded that the use of the “honest error of judgment instruction” was
improper. Id.

The Delaware Supreme Court examined the use of the mere error of
judgment language under the plain error doctrine because the plaintiff did
not object to the instruction before the jury was charged. Riggins, 603 A2d at
830-31. After examining the particular instruction challenged, the court held
that by using “the ‘mere error of judgment’ charge a jury could too readily
conclude, incorrectly, that a physician is not liable for malpractice even if he
or she is negligent in administering the treatment selected.” Id. at 831.

The Georgia Court of Appeals disapproved of an instruction that provided
that a physician is not responsible “for a lack of success or an honest mistake
or an error in judgment[.]” Hartman, 466 SE2d at 35. The court drafted the
instruction the jury should have received. In that instruction, nothing
excuses a physician from liability for an “error,” “mistake,” or judgment call.
Rather, the controlling instruction sets forth the applicable standard of care.

The North Carolina Supreme Court did not specifically address whether the
error in judgment or similar language was appropriate. However, it
expressly held that use of “honest error” is “potentially misleading and
exculpatory” and, therefore, “inappropriate in an instruction on the liability
of a doctor for medical malpractice[.]” Wall, 311 SE2d at 577.

The Ohio Court of Appeals examined an instruction that used “honest error”
or “mistake in judgment” and discussed the inappropriateness of the use of
“judgment” in a jury instruction. Kurzner, 627 NE2d at 567. “Judgment”,
according to the court, “interposes subjectivity into standards which are
supposed to be objective[.]” Id. Therefore, use of such terms should not be
used in medical malpractice cases. However, in several unpublished
appellate court decisions, it appears that use of “honest error” or “mistake in
judgment” is proper as long as the instructions as a whole inform the jury of
the appropriate standard of care. See Nash v. Hontanosas, 2002 WL 553754
(OhioCtApp 2002) (unpublished); Faber v. Syed, 1994 WL 326151
(continued . . .)
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#24043, #24044

and Maghuhat, where we did not specifically hold that error in judgment or similar

language should never be used. See 380 NW2d at 663; 382 NW2d at 46. While

Shamburger ruled “that the use of such terms as ‘good faith error in judgment’

unduly confuses the issues in a negligence action,” the analysis focused on the terms

“good faith.” 380 NW2d at 663 (emphasis added). Similarly, in Maghuhat, the

analysis examined the appropriateness of the terms “bona fide” even though we

declared that “[t]he negligence standard for doctors is no different than that for

other professionals.” 382 NW2d at 46 (citing Lenius v. King, 294 NW2d 912 (SD

1980) (applying negligence standard to an attorney)).

[¶48.] Because a physician’s standard of care is no different than that of other

professionals, the concerns we expressed in Shamburger and Maghuhat will not be

alleviated if we approve the use of error in judgment or similar language in jury

instructions. It is misleading to instruct a jury that physicians are not negligent

when they make an error in judgment. As multiple courts have recognized, if the

physician did not breach the applicable standard of care, then he or she by

definition has not committed an error in judgment. See Rogers, 772 P2d at 933;

Hirihara, 959 P2d at 834; Day, 657 So2d at 815.

[¶49.] While the original intent of the instruction was to inform the jury that

a doctor exercises medical judgment when treating a patient, and poor results

would not necessarily mean negligence, that intent is not explained with the use of

__________________
(. . . continued)
(OhioCtApp 1994) (unpublished); Kosmos v. The Cleveland Elec. Illuminating
Co., 1991 WL 281035 (OhioCtApp 1991) (unpublished).

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#24043, #24044

error in judgment or similar language. By using the term error in judgment, a jury

could reasonably find a physician not liable in instances where that physician

discloses that in hindsight, yes, he or she made a mistake, but that it was only an

error in judgment. This is not the standard of care physicians are held to in South

Dakota. 14

[¶50.] Because error in judgment or any similar language in no way further

defines or explains the applicable standard of care to the jury, we hold that such

language should not be used in ordinary medical malpractice actions. 15 This,

14. Although our jury instructions are many times modeled after California’s
pattern jury instructions, in this particular instance, California’s instruction
should not be cited. California, unlike South Dakota, allows an error in
judgment instruction to be used in all professional malpractice actions. See
supra note 12.

15. There may be limited occasions when an error in judgment instruction may
still be used. Because medicine is not an exact science and because a
physician in some instances may be presented with multiple methods of
acceptable treatment for a particular condition, a physician must be allowed
to exercise his or her professional judgment. Therefore, there may be
instances in which a jury may be instructed that the physician’s choice of
treatment from multiple acceptable treatments available is not necessarily
negligence. Such instruction, however, cannot propose that the physician
may commit a mere error or mistake and not be liable. A proper instruction
might contain language similar to the one approved by the Minnesota
Supreme Court:
If there are two methods of treatment for a particular medical
condition, both accepted by the medical profession, then there is
a matter of professional opinion or judgment which is best, and
the doctor’s choice of either is, ordinarily, not negligence.

See Ouellette, 391 NW2d at 815. This instruction along with the applicable
standard of care instruction will sufficiently inform the jury that a doctor
must (1) act in accordance with the standard of care, and (2) when multiple
medically acceptable methods of treatment exist, the physician’s treatment is
not necessarily negligence when he or she chooses one of those methods.
Moreover, courts are still permitted to instruct a jury that “[t]he fact that an
(continued . . .)
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#24043, #24044

however, does not end our inquiry. Even though jury instruction 16 was erroneous,

for it to constitute reversible error, Papke must establish that the instruction was

prejudicial. See Vetter, 2006 SD 21, ¶10, 711 NW2d at 615 (citing First Premier

Bank, 2004 SD 92, ¶40, 686 NW2d at 448). An instruction is prejudicial when “in

all probability [it] produced some effect upon the verdict and [was] harmful to the

substantial rights of a party.” Id.

[¶51.] Papke contends that because the defendants centered their defense on

the error in judgment language, she was prejudiced by the instruction. Indeed,

defense counsel told the court during settlement of jury instructions that the error

in judgment instruction was critical to their case. In closing argument, defense

counsel drew the jury’s attention to this instruction:

So things were going along as Dr. Harbert thought they would.
Unfortunately, as we know, he was wrong. And as he admitted,
his diagnosis of them being pressure sores, something that
would heal up, was wrong. But that did not, . . . make him
negligent and mean that he has breached the standard of care.

The instructions clearly say that an error in judgment does not
necessarily amount to negligence. And doctors have to make a
lot of tough calls. They make judgment calls, and that’s what
happened here. And in retrospect, yeah, it was wrong; but it’s
not negligent.

According to Papke, the instruction “appeared to absolve the defendants of any

potential negligence even where, as in this case, the defendants admitted to

misdiagnosing [her] condition.” Therefore, she claims that this “in all probability

__________________
(. . . continued)
unfortunate or bad condition resulted to the patient does not alone prove that
the defendant was negligent.”

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#24043, #24044

affected the jury’s application of the standard of care in this case,” warranting a

new trial.

[¶52.] We review the “instructions as a whole to learn if they provide a full

and correct statement of the law.” Id. ¶10 (quoting First Premier Bank, 2004 SD 92,

¶40, 686 NW2d at 448) (additional citations omitted). The court’s remaining

instructions properly informed the jury about the applicable standard of care. Yet,

any influence the error in judgment instruction could have had on the jury’s

decision is compounded in light of the defendants’ theory of their case. Defendants

told the jury that in hindsight Dr. Harbert made a mistake, but then relied on the

language of jury instruction 16 and claimed that such mistake cannot constitute

negligence because an error in judgment is not negligence. Defendants argued to

the jury that because of this instruction they were not negligent for their mistake.

From our review of the record, we conclude that in light of the fact that the

erroneous instruction was used as an integral part of defendants’ theory, in all

probability the instruction had some effect on the outcome of the case and

prejudiced Papke’s substantial rights, requiring a new trial.

2. Previously Undisclosed Expert Testimony

[¶53.] Papke next argues that the court erred when it admitted previously

undisclosed expert testimony on the issue of causation. Defendants’ expert, Dr.

Devon Goetz, testified at trial that on November 22, 2002, Papke had a greater than

fifty percent chance that she would have lost both her legs even if defendants had

properly diagnosed her condition. This opinion on causation, Papke contends, was

not disclosed to her until the morning Dr. Goetz testified. Therefore, she asserts

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#24043, #24044

that she “was unable to conduct any investigation, prepare any effective cross

examination, or retain an expert to disprove or counter that testimony in rebuttal.”

[¶54.] Defendants, however, insist that based on “the equities” in this case,

Dr. Goetz’s opinion was properly allowed. 16 Defendants claim that on September

25, 2005, Papke had sent a late disclosure of her expert’s intended opinions and the

court remedied this by allowing defendants the opportunity to depose Dr. Michael

Holte. Because the court permitted Papke a similar opportunity to depose Dr.

Goetz after the late disclosure and allowed her an opportunity for a continuance,

the late disclosure was remedied. Defendants further assert that for the expert

testimony to be excluded, Papke must establish that there was willfulness or bad

faith on the part of defendants and the lack of bad faith is conceded by Papke.

Therefore, defendants assert that there was no unfair prejudice to Papke and the

testimony was properly allowed.

[¶55.] We recently addressed this issue in Kaiser v. Univ. Physicians Clinic,

2006 SD 95, 724 NW2d 186. We recognized that the purpose of pretrial discovery is

to allow “the parties to obtain the fullest possible knowledge of the issues and facts

16. Defendants also claim that Papke failed to preserve this issue for appeal
because after her motion to exclude was denied she failed to then object when
questions on causation were asked of Dr. Goetz and defendants’ second
expert Dr. Jack Bert. This contention is without merit. The court’s ruling to
deny her motion is not akin to a motion in limine, which, under our former
rule, required a subsequent objection for preservation on appeal. Papke
adequately preserved the issue when she made the motion to exclude the
expert testimony. The present rule is SDCL 19-9-3 (Rule 103(a)), which
states in part: “Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error for appeal.”
(Effective July 1, 2006).

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#24043, #24044

before trial.” Id. ¶31 (quoting Hickman v. Taylor, 329 US 495, 501, 67 SCt 385, 389,

91 LEd 451 (1947)). Therefore, a litigant is “under a duty to seasonably []

supplement [its] response with respect to any question directly addressed to . . . the

subject matter on which [the litigant] is expected to testify, and the substance of

this testimony.” Id. ¶32 (emphasis omitted) (quoting SDCL 15-6-26(e)(1)). Under

SDCL 15-6-37(b), sanctions may be imposed by a court for a party’s failure to

supplement responses. Id. ¶33 (citations omitted) (one sanction identified is to

exclude the proffered testimony). The purpose of a sanction, the Kaiser Court

recognized, is “‘to compel production of evidence and to promote, rather than stifle,

the truth finding process.’” Id. ¶34 (quoting Haberer v. Radio Shack, a Div. of Tandy

Corp., 1996 SD 130, ¶20, 555 NW2d 606, 610) (additional citations omitted).

[¶56.] In Kaiser, we noted three areas of concern: (1) the time element and

whether there was bad faith by the party required to supplement; (2) whether the

expert testimony or evidence pertained to a crucial issue; and (3) whether the expert

testimony differed substantially from what was disclosed in the discovery process.

Id. ¶35 (citations omitted). We also recognized that SDCL 15-6-26(e) is modeled

after Federal Rule 26(e) and focused on certain federal cases, which “have found

reversible error when testimony is admitted without prior disclosure pursuant to

Rule 26.” Id. ¶38 (citing Smith v. Ford Motor Co., 626 F2d 784, 794 (10thCir 1980)

(citing Voegeli v. Lewis, 568 F2d 89, 96 (8thCir 1977); Shelak v. White Motor Co.,

581 F2d 1155 (5thCir 1978); Weiss v. Chrysler Motors Corp., 515 F2d 449 (2dCir

1975)). The remedy, according to those federal cases, was to exclude the proffered

evidence when a party failed to seasonably supplement. Id. ¶39 (citations omitted).

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#24043, #24044

[¶57.] Here, as in Kaiser, all three areas of concern are present. See id. ¶35

(citations omitted). Dr. Goetz’s opinion on causation was not disclosed during the

discovery process. Not until the morning of his testimony was Papke notified that

he even held an opinion on causation. In Kaiser, the expert expressed an opinion

during the discovery process, but then in trial used new evidence to support that

opinion, evidence that was untimely submitted. See id. ¶20. Here, Dr. Goetz gave

no opinion on causation during the discovery process. His late revelation is more

troubling than the one in Kaiser. See id. ¶35. Secondly, the issue of causation went

to the heart of Papke’s case, as she had to prove that defendants’ conduct

proximately or legally caused her injuries. Thus, the testimony pertained “to a

crucial issue.” See id. Finally, because Dr. Goetz did not have an opinion on

causation during his deposition, and then expressed an opinion on causation at

trial, his testimony differed substantially. See id.

[¶58.] Although Papke was given an opportunity to depose Dr. Goetz

immediately before his testimony at trial, this remedy conflicted with the purpose of

SDCL 15-6-26(e). As we stated in Kaiser, the purpose of SDCL 15-6-26(e) is to

provide all parties the opportunity to know the facts before trial. 2006 SD 95, ¶31,

724 NW2d at 194. Had Papke known that Dr. Goetz had an opinion on causation or

that his opinion was that on November 22, 2002, the chances for her losing her legs,

regardless of the diagnosis, was above fifty percent, her counsel could have

examined the basis for that opinion and sought expert testimony in rebuttal. Even

though the parties concede that no bad faith existed on the part of defense counsel,

the protective nature of the statute is not dependent upon bad faith. Rather, SDCL

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#24043, #24044

15-6-26(e) ensures a fair trial for all parties. Because Dr. Goetz’s untimely opinion

on causation was improperly allowed, Papke was denied a fair trial. 17

3. Submission of Medical Expenses

[¶59.] By notice of review, defendants contend that a plaintiff’s right to

recover the “reasonable value” of medical services as a measure of damages does not

include amounts “written off” by the medical care provider because of a contractual

agreement between the provider and Medicare and Medicaid. Papke was billed

$429,531.28 for her medical care. Medicare paid $79,411.72, and Medicaid paid

$133,874.03. The remaining $216,874.03 was written off and will never be paid by

anyone. Because neither Papke, nor anyone else, will ever be required to pay the

amount written off, defendants assert that Papke should only be able to recover the

amount that was actually paid for her medical services. Papke, on the other hand,

argues that she is entitled to recover the “reasonable value” of her medical services

as damages, notwithstanding what amount was actually charged or paid.

Furthermore, relying on the collateral source rule, she contends that defendants are

prohibited from offering in evidence the portion of her medical bills that were

written off.

[¶60.] Whether a plaintiff in a medical malpractice case is entitled to recover

the amount written off by a medical care provider because of a contractual

agreement between the provider and Medicare or Medicaid has never been

17. Papke also challenges the reliability of Dr. Goetz’s testimony, but because
further discovery will undoubtedly occur on his opinions before this case is
retried, we decline to rule on the issue at this time.

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#24043, #24044

addressed by this Court. We have, however, examined whether a plaintiff is

entitled to recover damages for the amount of medical services gratuitously

provided. Degen v. Bayman, 90 SD 400, 241 NW2d 703 (1976).

[¶61.] In Degen, the plaintiff received $13,490 in free care from the Shriners

Hospital, which amount would never become due and owing against the plaintiff.

Id. at 410, 241 NW2d at 708. When plaintiff brought a products liability action

against a boat manufacturer, the defense alleged that plaintiff was not entitled to

recover the $13,490 of gratuitous care, but only the amount actually paid by

plaintiff. Applying the collateral source rule, the Court held “that where the victim

of a [tortfeasor] receives gratuitous medical services from a source wholly

independent of the [tortfeasor] the value of gratuitous medical services may not be

deducted from the verdict for overall medical care received.” Id. at 411, 241 NW2d

at 709.

[¶62.] We used the collateral source rule based on our holding in Moore v.

Kluthe & Lane Ins. Agency, Inc., 89 SD 419, 434, 234 NW2d 260, 269 (1975)

(quoting Swift & Co. v. Gutierez, 277 P2d 559 (Idaho 1954) (citation omitted)). In

Moore, we adopted the collateral source rule enunciated by the Idaho Supreme

Court: “Total or partial compensation received by an injured party from a collateral

source, wholly independent of the wrongdoer, does not operate to reduce the

damages recoverable from the wrongdoer.” Id. (citation omitted). Quoting the

Tenth Circuit Court of Appeals, we held that “[n]o reason in law, equity or good

conscience can be advanced why a wrongdoer should benefit from part payment

from a collateral source of damages caused by his wrongful act. If there must be a

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#24043, #24044

windfall certainly it is more just that the injured person shall profit therefrom,

rather than the wrongdoer shall be relieved of his full responsibility for his

wrongdoing.” Id. (quoting Grayson v. Williams, 256 F2d 61, 65 (10thCir 1958)).

[¶63.] Believing the “rule and the rationale behind it” were sound, the Court

in Degen held that “a plaintiff who has been injured by the tortious conduct of the

defendant is entitled to recover the reasonable value of medical and nursing

services reasonably required by the injury. This is a recovery for their value and

not for the expenditures actually made or obligations incurred.” Id. at 410, 241

NW2d at 708 (citation omitted). Although Papke argues that the collateral source

rule and Degen resolve the question here, the fact that this case involves medical

malpractice presents a different situation from one involving traditional personal

injury or products liability.

[¶64.] The Legislature, through two statutes, has chosen to put medical

malpractice damages in a special category. First, in SDCL 21-3-11, the total

general damages that can be awarded to a plaintiff in a medical malpractice action

has been limited to five hundred thousand dollars. Second, contrary to the

collateral source rule, in a medical malpractice action, where a plaintiff seeks an

award of special damages, the Legislature has made admissible evidence that “is

relevant to prove that any such special damages were paid for or are payable by, in

whole or in part, insurance which is not subject to subrogation and which was not

purchased privately, in whole or part . . . or were paid for, or are payable by, in

whole or in part, state or federal governmental programs not subject to

subrogation.” SDCL 21-3-12.

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#24043, #24044

[¶65.] In Knowles v. United States, we observed that by treating medical

malpractice differently, the Legislature calculated that malpractice insurance rates

would be reduced, thereby lowering the cost of health care to all citizens. 1996 SD

10, ¶¶60-62, 544 NW2d 183, 195-97 (Gilbertson, J., concurring in part, concurring

in result, and dissenting in part); see also Peterson v. Burns, 2001 SD 126, 635

NW2d 556 (examining statutory restraints against medical malpractice claims). In

line with the idea that medical malpractice is treated uniquely in South Dakota,

today we examine whether, in a medical malpractice action, a plaintiff can recover

as damages the portion of the medical expenses written off based on a contractual

agreement between a medical care provider and Medicare or Medicaid.

[¶66.] Even though today’s case is examined solely within the realm of

medical malpractice, decisions outside the area of medical malpractice are

instructive. Essentially, whether write offs should be recoverable implicates two

concepts—the collateral source rule (when allowing recovery) and the notion that

the object of a compensatory damage award is to make an injured party whole (in

prohibiting recovery).

[¶67.] For those jurisdictions that have allowed recovery based on the

collateral source rule, the courts have focused on the two purposes of the rule—one

as a rule of evidence and the other as a rule of damages. Bozeman v. State, 879

So2d 692, 699 (La 2004) (recognizing that Medicare and private insurance write offs

are recoverable, but not Medicaid write offs); Esposito v. O’Hair, 886 A2d 1197,

1204 (RI 2005) (statute abrogating collateral source rule in medical malpractice

cases does not apply to Medicaid).

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#24043, #24044

[¶68.] Applied as a rule of evidence, the collateral source rule prohibits

defendants from offering proof of collateral source benefits received by the plaintiff,

independent of the tortfeasor, which compensate the plaintiff, in whole or in part,

for his or her injury. Calva-Cerqueira v. United States, 281 FSupp2d 279, 295-96

(DDC 2003) (“collateral source rule permits the plaintiff to recover all of his medical

costs, regardless of any written-off amounts”); Montgomery Ward & Co., Inc. v.

Anderson, 976 SW2d 382, 383 (Ark 1998) (“gratuitous or discounted medical

services are a collateral source”); Baptist Healthcare Systems, Inc. v. Miller, 177

SW3d 676, 684 (Ky 2005) (“Medicare benefits are governed by the collateral source

rule”); Bozeman, 879 So2d at 699; Esposito, 886 A2d at 1199-203; Covington v.

George, 597 SE2d 142, 144 (SC 2004) (collateral source rule applies and prohibits

introduction of actual amount paid to challenge the reasonableness of the medical

expenses sought by plaintiff).

[¶69.] Applied as a rule of damages, the collateral source rule prohibits

defendants from reducing their liability because of payments made to the plaintiff

by independent sources. Bynum v. Magno, 101 P3d 1149, 1155 (Hawaii 2004)

(Medicare/Medicaid write offs are akin to gratuitous services and therefore

recoverable); Arthur v. Catour, 803 NE2d 647, 650 (IllCtApp 2004) (limiting

recovery to amount paid “confers a significant benefit” to the defendant, “contrary to

the collateral source” rule); Rose v. Via Christi Health System, Inc., 78 P3d 798, 806

(Kan 2003) (“[b]ecause health care providers voluntarily contract with Medicare . . .

the benefit of the write-offs should be attributed to the Medicare participant rather

than the health care provider”); Bozeman, 879 So2d at 699; Esposito, 886 A2d at

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#24043, #24044

1199-204; Acuar v. Letourneau, 531 SE2d 316, 320-23 (Va 2000) (no deduction for

amount written off because of contractual agreement between plaintiff’s insured

and health care providers); see also Lindholm v. Hassan, 369 FSupp2d 1104 (DSD

2005) (“reasonable value of medical service is not controlled by whether a portion or

all of the medical bills [were] paid as a gift, or written off pursuant to an insurance

agreement or by operation of law”); see also Brandon HMA, Inc. v. Bradshaw, 809

So2d 611 (Miss 2001) (“Medicaid payments are subject to the collateral source

rule”).

[¶70.] Also, while it has been recognized that at times the collateral source

rule can produce a windfall for a plaintiff, courts have held that if a windfall occurs,

it is better that the innocent plaintiff receive it than the guilty wrongdoer. Bynum,

101 P3d at 1159-61; Arthur, 803 NE2d at 649-50; Rose, 78 P3d at 806; Baptist

Healthcare Systems, Inc., 177 SW3d at 683; Acuar, 531 SE2d at 323. This, courts

have held, furthers the intent of the collateral source rule, which is to preclude a

defendant, the tortfeasor, from obtaining any benefit when a plaintiff receives

collateral payments or benefits, such as gratuitous services, insurance coverage

payments, social policy benefits, etc. Moreover, a plaintiff is generally entitled to

recover only the reasonable value of medical services provided. See infra note 18.

[¶71.] Courts have also relied on the Restatement (Second) of Torts when

deciding whether the reasonable value of medical services provided equals the

amounts paid. 18 Restatement (Second) of Torts § 920A (entitled “Effect of

18. The following courts examined Restatement (Second) of Torts, section 920A,
in allowing the award of write offs. Bynum, 101 P3d at 1154; Montgomery
(continued . . .)
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#24043, #24044

Payments to Injured Party”). Under the Restatement, “Payments made to or

benefits conferred on the injured party from other sources are not credited against

the tortfeasor’s liability, although they cover all or a part of the harm for which the

tortfeasor is liable.” Id. § 902A(2). The comments to the Restatement explain that

“it is the position of the law that a benefit that is directed to the injured party

should not be shifted so as to become a windfall for the tortfeasor.” Id. § 920A cmt

b. The comment continues, “If the benefit was a gift to the plaintiff from a third

party or established for him by law, he should not be deprived of the advantage that

it confers.” Id. This is because “[t]he law does not differentiate between the nature

of the benefits, so long as they did not come from the defendant or a person acting

for him.” 19 Id.

[¶72.] In accordance with the intent of the collateral source rule and section

920A of the Restatement (Second) of Torts, multiple courts have further held that

write offs are akin to gratuitous payments or are a benefit contracted for by the

plaintiff through insurance coverage and are therefore recoverable. 20 The Kansas

__________________
(. . . continued)
Ward & Co., Inc., 976 SW2d at 385; Rose, 78 P3d at 802; Bozeman,879 So2d
at 701-02; Acuar, 531 SE2d at 323.

19. The Restatement further identifies those benefits for which the collateral
source rule applies: insurance benefits, employment benefits, gratuities, and
social legislation benefits. Id. § 902A cmt c.

20. Although not applicable to this case, when a plaintiff procures private
medical insurance coverage and the insurance provider contracts with a
healthcare provider for a lower rate, the plaintiff, not the defendant, should
receive the benefit of that bargain. It is the plaintiff who pays the premium
for the insurance coverage and the lower rates. See Calva-Cerqueira, 281
FSupp2d at 295-96; Lopez v. Safeway Stores, Inc., 129 P3d 487, 496
(continued . . .)
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#24043, #24044

Supreme Court, in particular, compared Medicare to private insurance because

“Medicare benefits are purchased by payroll deductions[.]” 21 Rose, 78 P3d at 802-03

(Medicaid write offs are not recoverable); see also Bynum, 101 P3d at 1157;

Bozeman, 879 So2d at 704 (Medicaid write offs are not recoverable, but Medicare

write-offs are); Brown v. Van Noy, 879 SW2d 667, 676 (MoCtApp 1994) (without a

challenge to the reasonableness of the expenses, “the fact that the expenses were

‘taken care of’ by Medicare” is irrelevant); Robinson v. Bates, 828 NE2d 657, 673

(OhioCtApp 2005) (“the collateral-source rule applies to any written-off amount

agreed to by a plaintiff’s health-care provider and insurer”). According to one court,

the windfall should benefit the injured party and the tortfeasor “should bear the full

liability of his or her tortious actions without regard to the injured parties’ method

of financing his or her medical treatment.” Rose, 78 P3d at 806. 22

[¶73.] Other courts, however, have denied recovery of write offs because the

object of a damage award is to compensate the plaintiff only to the full extent of the

plaintiff’s injuries. Hanif, 200 CalApp3d at 641 (in consideration of the objective of

an award of damages, an award “in excess of what the medical care and services

__________________
(. . . continued)
(ArizCtApp 2006); Arthur, 803 NE2d at 649; Covington, 597 SE2d at 144;
Acuar, 531 SE2d at 322; Koffman v. Leichtfuss, 630 NW2d 201, 208-10 (Wis
2001).

21. The court, however, recognized that Medicaid was dissimilar, in that it is
provided free to all those who qualify. Rose, 78 P3d at 803.

22. The court also distinguished the two cases primarily relied upon for
disallowing recovery. Id. at 804 (citing Hanif v. Housing Auth., 200
CalApp3d 635 (CalCtApp 1988); Moorhead v. Crozer Chester Med. Ctr., 765
A2d 786 (Pa 2001)).

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#24043, #24044

actually cost constitutes overcompensation”); Coop. Leasing, Inc. v. Johnson, 872

So2d 956, 958-59 (FlaCtApp 2004) (plaintiff only entitled to recover what was paid

by Medicare, not what was billed); Moorhead, 765 A2d at 790 (allowing plaintiff to

recover write offs “would violate fundamental tenets of just compensation”).

[¶74.] Some courts also have denied a plaintiff recovery of amounts written

off because a write off is not a “payment” received by a source independent of the

tortfeasor, and, therefore, not a collateral source. Chapman v. Mazda Motor of

America, Inc., 7 FSupp2d 1123, 1124-25 (DMont 1998) (plaintiff is not entitled to

recover disallowed medical expenses); Coop. Leasing Inc., 872 So2d at 959-60

(collateral source rule modified by statute to allow set off of damages); Dyet v.

McKinley, 81 P3d 1236, 1239 (Idaho 2003) (“write-off is not technically a collateral

source”); Peterson v. Lou Bachrodt Chevrolet Co., 392 NE2d 1, 5 (Ill 1979) (the

value of gratuitous service provided by the Shriners Hospital is not recoverable

because it is not a collateral source); Bates v. Hogg, 921 P2d 249, 252-53 (KanCtApp

1996) (Medicaid write off is not recoverable because it is not a collateral source),

superseded in statute as stated in, Frans v. Gausman, 6 P3d 432 (KanCtApp 2000);

Kastic v. U-Haul Co. of Western Michigan, 292 Ad2d 797 (NYCtApp 2002) (write off

is not a payment from a collateral source); Moorhead, 765 A2d at 791 (“collateral

source rule does not apply to the illusory ‘charge’” written off).

[¶75.] Two frequently cited cases for denying a plaintiff recovery for write offs

are Hanif, 200 CalApp3d at 640 and Moorhead, 765 A2d at 788. In Hanif, a

California appellate court examined “whether the ‘reasonable value’ measure of

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#24043, #24044

recovery means that an injured plaintiff may recover from the tortfeasor more than

the actual amount he paid for or for which he incurred liability for past medical care

and services.” 200 CalApp3d at 640. It noted that the “primary objective of an

award of damages in a civil action, and the fundamental principle on which it is

based, are just compensation or indemnity for the loss or injury sustained by the

complainant, and no more.” Id. 640-41 (quoting Mozzetti v. City of Brisbane, 67

CalApp3d 565, 576 (CalCtApp 1977)) (emphasis in Mozzetti). Like South Dakota,

California has a jury instruction explaining that a plaintiff is entitled to recover the

“reasonable value” of medical services and another instruction, which provides that

even when the care is rendered “gratuitously or paid for by a source independent of

the wrongdoer,” the plaintiff may still recover the reasonable value. Nonetheless,

the California court determined that “reasonable value,” is a term of limitation,

which according to the court, meant the amount paid, rather than the amount

billed. Id. at 643-44. Therefore, the court found that write offs were not

recoverable.

[¶76.] In reaching this conclusion, the California court relied on the

Restatement (Second) of Torts. It did not use section 920A, but instead, drew its

support from section 911, entitled, “Value.” It cited comment h in section 911,

which explains what constitutes the “value of services rendered.” Hanif emphasized

a portion of the comment,

When the plaintiff seeks to recover for expenditures made or
liability incurred to third persons for services rendered,
normally the amount recovered is the reasonable value of the
services rather than the amount paid or charged. If, however,
the injured person paid less than the exchange rate, he can

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#24043, #24044

recover no more than the amount paid, except when the low rate
was intended as a gift to him.

200 CalApp3d at 643 (quoting Restatement (Second) of Torts § 911 cmt h)

(emphasis in Hanif). Because of this language and the court’s view of the objective

of a damage award, it expressly held that the “reasonable value” of medical services

does not exceed the actual amount paid. Id. at 643-44.

[¶77.] Similarly, in Moorhead, the Pennsylvania Supreme Court relied on

Restatement (Second) of Torts section 911 comment h and held that the amount

accepted as full payment for the medical services was the amount the plaintiff could

recover. 765 A2d at 789-90. The court believed that allowing the plaintiff to

recover beyond what was actually paid “would provide her with a windfall and

would violate tenets of just compensation.” Id. at 790. The court did not find the

collateral source rule or Restatement (Second) of Torts section 920A to be

applicable. According to the court, the defendant was not attempting to “diminish”

plaintiff’s recovery, as plaintiff was fully entitled to recover the amounts paid by

Medicare and Blue Cross. Id. Further, the court held that the collateral source rule

was not implicated because no collateral source paid the “illusory ‘charge.’” Id.; see

also Smithers v. C&G Custom Module Hauling, 172 FSupp2d 765, 777-78; Dyet, 81

P3d at 1239-40; Kastick, 292 Ad2d at 798-99.

[¶78.] In South Dakota, it is well settled that plaintiffs are entitled to recover

the reasonable value of their medical services, and what constitutes a reasonable

value for those services is a jury question. We think it unwise for us to make a

broad declaration that the reasonable value of medical services equals the amount

paid, not the amount billed. See Hanif, 200 CalApp3d at 643-44. Such decision

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#24043, #24044

would create an inference that the actual amount billed to patients by medical care

providers is, as a matter of law, unreasonable. This Court equally cannot hold that

a plaintiff is always entitled to recover the entire amount billed, rather than the

amount paid. Such a ruling would declare that the amount billed, as a matter of

law, constitutes the reasonable value for the provided services. Both results invade

the province of the jury in its role of determining reasonable value.

[¶79.] Nevertheless, when establishing the reasonable value of medical

services, defendants in South Dakota are currently prohibited from introducing

evidence that a plaintiff’s award should be reduced because of a benefit received

wholly independent of the defendants. See Degen, 90 SD at 410, 241 NW2d at 708;

Moore, 89 SD at 434, 234 NW2d at 269. We have continued to apply the collateral

source rule even though in some instances it may result in a windfall to an injured

plaintiff. Degen, 90 SD at 410, 241 NW2d at 708; Moore, 89 SD at 434, 234 NW2d

at 269. The intent of the rule has always been that it is better that a windfall go to

an injured party than to a tortfeasor. Moore, 89 SD at 434, 234 NW2d at 269.

[¶80.] Although the collateral source rule has a common law origin, and we

have consistently applied the rule in a variety of tort cases, our Legislature has

intervened to partially limit its scope with respect to medical malpractice “special”

damages. 23 See SDCL 21-3-12. Neither side argues that this statute has any

23. SDCL 21-3-12 makes admissible evidence of certain “special” damages paid
for by insurance. In this case, however, although the plaintiff’s complaint
generally mentioned the term special damages, such damages were not
specifically detailed or itemized as required by SDCL 15-6-9(g).
Furthermore, the trial court did not instruct the jury on special damages, and
the defendants did not raise SDCL 21-3-12 before the trial court as having a
(continued . . .)
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#24043, #24044

applicability to this case. We think it prudent, therefore, as it applies to medical

malpractice, to leave any further rule changes to the Legislature. Thus, in this

case, the collateral source rule applies and defendants are precluded from entering

into evidence the amounts “written off” by medical care providers because of

contractual agreements with sources independent of defendants.

5. Motion to Compel Production

[¶81.] Defendants raise one last issue by notice of review. They argue that

the court erred when it denied their motion to compel production of a report

reviewed by plaintiff’s expert. Plaintiff’s expert, Dr. Holte, was given a report from

a non-testifying expert for the plaintiff. According to defendants, Dr. Holte relied

on this report in forming his opinion, and therefore, the report is discoverable under

SDCL 15-6-26. The circuit court denied defendants’ motion to compel production of

the report. Because the court’s decision pertains to an evidentiary issue, it is

reviewed under the abuse of discretion standard. See Steffen, 2006 SD 41, ¶19, 713

NW2d at 620 (citing Von Sternberg, 2005 SD 14, ¶13, 692 NW2d at 554 (citing

Dokken, 2000 SD 9, ¶39, 604 NW2d at 498))).

[¶82.] Although a non-testifying expert’s opinion is generally not

discoverable, a report authored by that expert loses its “protective status” when a

__________________
(. . . continued)
bearing on any special damages. No instruction was proposed to the jury
seeking to make these payments admissible because they constituted
insurance payments on special damages. Moreover, in this appeal, the
defendants in their notice of review do not allege that these medical bills
constitute special damages. Indeed, they do not cite SDCL 21-3-12 as
controlling in this case.

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#24043, #24044

testifying expert relies on that report in forming an opinion. Kuper v. Lincoln-

Union Elec. Co., 1996 SD 145, ¶28, 557 NW2d 748, 758. Defendants cite cases

applying the companion federal rule and ask us to declare that on the sole basis

that a testifying expert reviewed a report prepared by a non-testifying expert, the

report loses its protective status and is discoverable. See United States v. City of

Torrance, 163 FRD 590, 593-94 (CDCal 1995); Simon Property Group, LP v.

mySimon, Inc., 194 FRD 644, 646 (SDInd 200); Heitmann v. Concrete Pipe

Machinery, 98 FRD 740, 741-42 (EDMo 1983); County of Suffolk v. Long Island

Lighting Co., 122 FRD 120, 123-24 (EDNY 1988); Gall v. Jamison, 44 P3d 233, 237,

239-40 (Colo 2002). All but one of defendants’ cases, however, interpret and apply a

federal rule not relevant to this case. The cases cited by defendants pertain to

whether an expert’s examination of attorney work product divests the attorney

work product of its privileged status. See Simon, 194 FRD at 646; Gall, 44 P3d at

237. In this case, we are not examining whether attorney work product is

privileged. We are interpreting SDCL 15-6-26(b)(4), which is similar to Federal

Rule 24(b)(4). And, as one case cited by defendant noted, whether a non-testifying

expert opinion is discoverable depends on the applicability of Rule 24(b)(4). See

Heitmann, 98 FRD at 742-43.

[¶83.] It is insufficient to declare that just because Dr. Holte reviewed the

non-testifying expert’s report, the report is discoverable. Rather, defendants must

prove that Dr. Holte relied on the report in forming his opinion, or, under SDCL 15-

6-26(b)(4)(B), that there are “exceptional circumstances” demonstrating that “it is

impracticable for the party seeking discovery to obtain facts or opinions on the same

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#24043, #24044

subject by other means.” The circuit court held that Dr. Holte did not rely on the

non-testifying expert’s report in formulating his opinion. We see no reason to

disagree with the court’s conclusion. Considering that defendants do not allege that

exceptional circumstances exist, the court did not abuse its discretion in denying

defendants’ motion to compel.

[¶84.] Affirmed in part, reversed in part, and remanded.

[¶85.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.

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