#26296-a-JKK

2013 S.D. 8

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

BETTE THOMPSON, Plaintiff and Appellant,

v.

AVERA QUEEN OF PEACE HOSPITAL 

and CHRIS KROUSE, M.D., Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

DAVISON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE TIMOTHY W. BJORKMAN

Judge

* * * *

CASEY N. BRIDGMAN

Wessington Springs, South Dakota

and

RONALD K. MILLER

Plankinton, South Dakota Attorneys for plaintiff 

and appellant. 

ROGER A. SUDBECK

MEGHANN M. JOYCE of

Boyce, Greenfield, Pashby & Welk, LLP

Sioux Falls, South Dakota Attorneys for defendants 

and appellees.

* * * *

ARGUED NOVEMBER 7, 2012

OPINION FILED 01/16/13
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KONENKAMP, Justice

[¶1.] After her surgeon performed wrist surgery, plaintiff went to a second

doctor complaining of ongoing wrist pain. She had to undergo another surgery. 

Plaintiff brought suit for medical malpractice against the first surgeon. A jury 

returned a verdict for the surgeon. Plaintiff appeals.

Background

[¶2.] On September 29, 2007, Bette Thompson, 70 years old at the time, fell 

while pruning a tree and fractured her left wrist. She was treated in the emergency 

room at Avera Queen of Peace Hospital in Mitchell, South Dakota, after which her 

arm was placed in a sling and she was directed to make an appointment with a 

surgeon. On October 1, 2007, Dr. Chris Krouse, an orthopedic surgeon, ordered an 

x-ray, which revealed that Thompson fractured her left distal radius — the radius 

being the larger of the two bones in the forearm and the distal being the end toward 

the wrist. At first, Dr. Krouse chose to treat the fracture conservatively, but later 

recommended surgery. 

[¶3.] On October 20, 2007, Dr. Krouse operated on Thompson’s left wrist. 

He intended to reduce the fracture with the goal of placing her wrist as close as 

possible in its natural alignment. He implanted a metal plate and screws to hold 

the bone in place. Using a fluoroscope during the surgery, he rotated Thompson’s 

wrist to confirm that the screws were holding the metal plate in the proper position.

He considered the surgery a success.

[¶4.] Thompson returned to Dr. Krouse’s office for follow-up care. At each 

visit, he ordered x-rays of her wrist and discussed these x-rays with her. At 
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Thompson’s last visit on January 16, 2008, he ordered an x-ray, which he believed 

confirmed that he achieved a satisfactory reduction of the distal radius and that the 

alignment of the wrist post surgery had not collapsed. 

[¶5.] On March 24, 2008, Thompson visited another orthopedic surgeon, Dr. 

Blake Curd. She had continued to experience pain in her left wrist. Dr. Curd 

ordered an x-ray, which revealed that the reduction and alignment of her wrist had 

collapsed. Dr. Curd was concerned that the screws were penetrating Thompson’s 

wrist joint space. A CT scan led Dr. Curd to recommend another surgery to remove 

the metal plate and screws, which was accomplished on May 1, 2008. 

[¶6.] After Dr. Krouse refused Thompson’s request to reimburse her for the 

costs she incurred for the surgery performed by Dr. Curd, Thompson brought suit 

for medical malpractice against Dr. Krouse and Avera Queen of Peace. She alleged 

that Dr. Krouse negligently failed to achieve a satisfactory reduction of her left 

wrist and negligently left one screw protruding into the wrist space. 

[¶7.] Shortly before the trial, Thompson’s expert, Dr. Charles Clark, 

testified by deposition that in addition to failing to satisfactorily reduce the distal 

radius and negligently placing a screw, Dr. Krouse failed to inform Thompson about 

the status of her condition following surgery. Dr. Clark repeated this opinion later 

in the deposition, and counsel for Dr. Krouse objected asserting that Dr. Clark was 

testifying to a previously undisclosed expert opinion. Counsel moved in limine to 

exclude Dr. Clark’s opinion that Dr. Krouse failed to inform Thompson about the 

status of her condition. After a hearing, the circuit court granted the motion in part 

and ordered that certain portions of Dr. Clark’s testimony be redacted. At the close 
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of trial, Thompson requested a jury instruction on the doctrine of res ipsa loquitor. 

The court refused the instruction, finding that it was unsupported in the record. 

The jury returned a verdict for Dr. Krouse. Thompson appeals on the grounds that

the court abused its discretion when it excluded portions of Dr. Clark’s testimony

and rejected the jury instruction on res ipsa loquitor.1 

Analysis and Decision

[¶8.] Counsel for Dr. Krouse did not object the first time Dr. Clark broached

his opinion that Dr. Krouse breached the standard of care when he failed to inform 

Thompson on the condition of her wrist after surgery. Because there was no 

objection when the offending statement was made, Thompson insists that Dr. 

Krouse waived his right to object to this testimony after the deposition concluded. 

In Thompson’s view, had Dr. Clark testified live at trial, the jury would have heard 

his statement when no objection was made. Thompson further argues that if 

deposition testimony can be objected to after the fact, parties will be able to sit on 

their right to object, only to later scour the deposition for errors and move for 

exclusion. Apparently, the parties did not enter the common stipulation before the 

deposition that all objections, except as to form, would be reserved.

[¶9.] “[E]rrors of any kind which might be obviated, removed, or cured if 

promptly presented, are waived unless seasonable objection thereto is made at the 

 

1. Standard of Review: The circuit court has discretion in admitting or 

excluding expert testimony, and therefore, we review a court’s evidentiary 

ruling on expert testimony for an abuse of discretion. Zepp v. Hofmann, 444 

N.W.2d 28, 31 (S.D. 1989). When a court refuses a requested instruction, we 

review for prejudicial error. Carpenter v. City of Belle Fourche, 2000 S.D. 55, 

¶ 27, 609 N.W.2d 751, 762 (citations omitted).
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taking of the deposition.” SDCL 15-6-32(d)(3)(B). This rule gives “the erring party 

an opportunity to correct the mistake, and to prevent waste of time and money by a 

subsequent claim that a deposition must be suppressed because of some technical 

error long ago.” Zepp, 444 N.W.2d at 33 (quoting 8 C. Wright and A. Miller, Federal 

Practice and Procedure § 2153 (1970)). When a timely objection is made during a

deposition, counsel gains the opportunity to rephrase the question, provide 

clarification, or a better foundation.

[¶10.] Here, an objection by Dr. Krouse at the time of the question and 

answer would not have obviated, removed, or cured the objectionable testimony. 

Whether Dr. Clark’s standard-of-care answer constituted a previously undisclosed

expert opinion required a ruling by the circuit court. An objection before admission 

of the deposition testimony at trial gave the court an opportunity to rule. Indeed, 

“[t]he ideal in any trial is to keep improper and inflammatory questions or evidence 

from the jury.” See id. Therefore, a deposition that contains improper evidence 

“should be stricken prior to reading to the jury.” Id. The court did not abuse its 

discretion in excluding the previously undisclosed opinion. 

[¶11.] Thompson next argues that Dr. Clark’s testimony was not a new 

opinion because Dr. Clark was merely expanding on his previous opinion that “[i]t is 

the whole treatment of the fracture that is below” the standard of care. A review of 

the deposition testimony and discovery produced reveals otherwise. Before the

deposition, Dr. Clark opined that Dr. Krouse breached the standard of care when he 

(1) failed to recognize that he did not perform an adequate reduction, (2) did not 

correct the ulna being longer in comparison to the radius, and (3) failed to recognize 
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that a screw was in the wrist joint space. There was no opinion offered on a duty to 

inform or failure to inform Thompson. In his deposition, Dr. Clark specifically 

opined, for the first time, that “the standard of care required [Dr. Krouse] to let the 

patient know that [she] has an incomplete reduction and that may cause problems. 

And that there’s a screw that’s prominent there and that should have been 

investigated further.” This opinion was new and previously undisclosed. 

[¶12.] Thompson next contends that, even if Dr. Clark’s testimony 

constituted previously undisclosed expert opinion, “the proper course would have 

been to allow [Dr. Krouse] to obtain a continuance[.]” Thompson argues that by 

excluding the evidence, the court “in effect” dismissed her case and entered a 

default judgment against her. She further maintains that the court prevented her 

from having “her day in court” and proving her claim that Dr. Krouse breached the 

standard of care.

[¶13.] When a party attempts to offer a previously undisclosed expert 

opinion, that party may not “use as evidence at trial,” the “information not so 

disclosed.” SDCL 15-6-37(c)(1). Here, the court properly excluded the specific

opinion of Dr. Clark that Dr. Krouse breached the standard of care when he failed 

to inform Thompson on the condition of her wrist after surgery.2 Such exclusion did 

 

2 The court did not exclude all evidence related to Dr. Krouse’s failure to 

inform Thompson on the condition of her wrist. Specifically, the court 

overruled Dr. Krouse’s objection to the following testimony by Dr. Clark: 

you should let the patient know that you’ve got a problem, that 

you have an inadequate reduction, just so she could know.

(continued . . .)
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not effectively enter a default judgment against Thompson or otherwise prevent her 

from presenting expert testimony that Dr. Krouse breached the standard of care 

when he failed to perform an adequate reduction and failed to notice the screw in 

Thompson’s wrist joint area. 

[¶14.] Lastly, Thompson contends that the court abused its discretion when it 

rejected her requested instruction on the doctrine of res ipsa loquitor. She contends 

the instruction was warranted because Dr. Krouse had full management and 

control of the operation, the medical procedure failed and had to be corrected by 

another surgeon, and she incurred damages as a result. She argues that 

“reasonable people do not go into surgery expecting to come out of the surgery with 

screws protruding into a joint,” and when such happens, it is because the doctor 

with full management and control of the operation was negligent. 

[¶15.] Under the doctrine of res ipsa loquitor, negligence is inferred from 

surrounding circumstances because the specific act of negligence is not known and 

the type of injury in and of itself provides evidence of negligence. Schmeling v. 

Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957). But if the negligence is known 

the doctrine has no application. Malloy v. Commonwealth Highland Theatres, Inc., 

__________________

(. . . continued)

The appropriate thing I believe would have been to say I’m 

worried about the screw, maybe we should get a CT scan here 

and make sure it is not in the joint, and if it is then take that 

screw out. But the option as far as the shortening is concerned 

is to tell the patient it is short here and let’s see how you do, but 

down the road I may have to either cut the bone or shorten the 

ulna, but the patient should be informed about what’s going on 

with their wrist.
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375 N.W.2d 631, 636 (S.D. 1985). Moreover, the doctrine of res ipsa loquitur 

“should be invoked sparingly and only when the facts and demands of justice make 

the application essential.” Barger v. Chelpon, 60 S.D. 66, 73, 243 N.W. 97, 100

(1932); see also Shipley v. City of Spearfish, 89 S.D. 559, 561, 235 N.W.2d 911, 913 

(1975).

[¶16.] Here, Thompson alleged that Dr. Krouse was negligent when he 

inadequately reduced her fracture and failed to notice that a screw protruded into 

her wrist joint space. As support, Thompson presented direct evidence through 

expert testimony that Thompson’s wrist did not collapse as a risk and consequence 

of surgery, but as a result of Dr. Krouse’s specific negligence. “Although a plaintiff 

does not waive instructions on res ipsa loquitur by trying to establish specific acts of 

negligence through the introduction of some evidence which does not clearly and 

definitely establish the exact cause of the injury, Fleege v. Cimpl, 305 N.W.2d 409, 

414 (S.D. 1981), res ipsa loquitur is a rule founded on the absence of specific proof of 

omissions or facts which constitute negligence.” Malloy, 375 N.W.2d at 636 (citing 

Barger, 60 S.D. at 73, 243 N.W. at 100). There being specific proof of negligence in 

this case, the court did not err in refusing the instruction.

[¶17.] Affirmed.

[¶18.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and 

WILBUR, Justices, concur.