#25813-a-DG

2012 S.D. 6

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

KEVIN RONAN, M.D. and

PATRICIA RONAN, Plaintiffs and Appellants,

v.

SANFORD HEALTH d/b/a SANFORD

HOSPITAL, SANFORD CLINIC,

BRADLEY E. HRUBY, M.D., WENDELL

W. HOFFMAN, M.D., RICHARD D. 

HARDIE, M.D., and DAVID A. THOMAS, M.D., Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICIA C. RIEPEL

Judge

* * * *

MICHAEL A. HENDERSON

STEPHEN C. LANDON of

Cadwell, Sanford, Deibert

 & Garry, LLP

Sioux Falls, South Dakota Attorneys for plaintiffs

and appellants.

REED RASMUSSEN

JEFF L. BRATKIEWICZ of

Siegel, Barnett & Schutz, LLP

Aberdeen, South Dakota Attorneys for defendants 

and appellees.

* * * *

ARGUED OCTOBER 3, 2011

OPINION FILED 02/01/12
#25813

-1-

GILBERTSON, Chief Justice

[¶1.] A doctor and his wife filed suit against Sanford Health and several of 

its treating physicians (collectively “Defendants”) alleging medical malpractice. The 

jury entered a verdict for Defendants. The plaintiffs appeal two evidentiary rulings. 

We affirm. 

FACTS

[¶2.] In 2006, Dr. Kevin Ronan was an anesthesiologist practicing in Sioux 

Falls, South Dakota. Dr. Ronan vacationed in Phoenix, Arizona with friends from 

February 21 – 26, 2006. On the evening of March 8, 2006, Dr. Ronan began to feel 

ill. The next day he went to see his physician, who suspected Dr. Ronan had the flu. 

[¶3.] Dr. Ronan’s condition worsened and he went to the emergency room on 

March 10. He was seen by various physicians, including Dr. Bradley E. Hruby. Dr. 

Ronan was admitted to the hospital and given antibiotics. He was referred to a 

specialist in infectious diseases. The specialist’s diagnosis recognized that Dr. 

Ronan might have coccidioidomycosis (cocci), or “valley fever.” Cocci is a fungal 

disease endemic in the southwestern United States.1 The specialist was unable to 

confirm the diagnosis, as tests for cocci often come back negative during the first 

few days of an infection. 

 

1. See Ctrs. for Disease Control & Prevention, Coccidiodomycosis,

http://www.cdc.gov/nczved/divisions/dfbmd/diseases/coccidioidomycosis/ (last 

visited January 25, 2012).
#25813

-2-

[¶4.] Despite his failure to significantly improve, Dr. Ronan was released 

from the hospital. Dr. Ronan continued to suffer high fevers, chills, headaches, 

chest pains, rashes, and neck stiffness. 

[¶5.] Throughout March, Dr. Ronan was referred to more physicians,

including another infectious disease specialist, Dr. Wendell Hoffman. Despite 

repeated inquiries by the Ronans, Dr. Hoffman did not immediately order further 

diagnostic tests to determine if Dr. Ronan had cocci. Dr. Ronan’s condition 

worsened and he began to develop breathing problems. After another visit to the 

emergency room, he was treated with steroids. His condition did not improve. 

Eventually, Dr. Richard Hardie, a pulmonologist, recommended a lung biopsy and 

ordered diagnostic blood tests. Dr. Ronan ultimately had a lung biopsy before the 

results of the blood tests returned.

[¶6.] On March 28, 2006, Dr. Hoffman informed the Ronans that the blood 

tests confirmed that Dr. Ronan had cocci. Since his diagnosis, Dr. Ronan has 

continued to have severe medical problems. Dr. Ronan and his wife filed suit 

against Defendants, alleging medical negligence in failing to properly and timely 

pursue a diagnosis. The Ronans also allege negligence in administering steroids to 

a patient with acute, undiagnosed, and untreated cocci. The jury returned a verdict 

in favor of Defendants.

[¶7.] On appeal, the issues presented are:

1. Whether the circuit court abused its discretion in excluding 

alleged statements made by employees of Defendants under 

SDCL 19-12-14.
#25813

-3-

2. Whether the circuit court erred in precluding the impeachment 

of a defense expert witness. 

STANDARD OF REVIEW

[¶8.] “We afford broad discretion to circuit courts in deciding whether to 

admit or exclude evidence.” Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 

409. “The trial court’s evidentiary rulings are presumed correct and will not be 

overturned absent a clear abuse of discretion. An abuse of discretion refers to a 

discretion exercised to an end or purpose not justified by, and clearly against reason 

and evidence.” St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74. “We 

review the circuit court’s construction of statutes de novo.” People ex rel. J.L., 2011 

S.D. 36, ¶ 4, 800 N.W.2d 720, 722. 

ANALYSIS

[¶9.] 1. Whether the circuit court abused its discretion in 

excluding alleged statements made by employees of 

Defendants under SDCL 19-12-14.

[¶10.] On September 22, 2006, the Ronans met with two Sanford Health 

employees, Becky Nelson, Chief Operations Officer, and Jeannie Schwarting, Risk 

Manager. Patricia Ronan took notes at the meeting. Her notes indicate that

Schwarting said, “I am so sorry we failed you” and “we let you down.” The notes 

also attribute several comments to both Nelson and Schwarting, including that 

“[Dr.] Hruby got the whole thing off on the wrong track and it snowballed” and that

the situation was an example of how things can go “when people don’t do their 
#25813

-4-

jobs.”

2 Defendants conceded at oral argument that the notes were properly 

admitted for the court to rule on the issue.

[¶11.] At the pretrial hearing, Defendants noted that the Ronans had listed 

Nelson and Schwarting as witnesses. Defendants argued that evidence of this 

meeting was inadmissible under SDCL 19-12-14. SDCL 19-12-14 provides:

No statement made by a health care provider apologizing for an 

adverse outcome in medical treatment, no offer to undertake 

corrective or remedial treatment or action, and no gratuitous act 

to assist affected persons is admissible to prove negligence by 

the health care provider in any action for damages for personal 

injury or death alleging malpractice against any health care 

provider. Nothing in this section prevents the admission, for the 

purpose of impeachment, of any statement constituting an 

admission against interest by the health care provider making 

such statement.3

This statute was adopted in 2005. This is the first opportunity this Court has had 

to examine this statute.

[¶12.] The circuit court took the issue under advisement. Immediately before 

trial, the court concluded the evidence concerning the September 2006 meeting was 

inadmissible. The court reasoned that the notes went to the issue of negligence, 

which was specifically prohibited under the statute. The court also indicated that 

at that pretrial stage of the proceedings, the court was not aware if the notes were

 

2. Patricia Ronan’s notes include other statements, but the parties appear to 

agree that the remaining statements were properly excluded. 

3. While it appears the majority of states have a version of an “apology statute,” 

the language of this statute is unique to South Dakota. Consequently, 

comparison of cases analyzed under those statutes is not helpful. 
#25813

-5-

really being offered under the impeachment exception because the court did not

know what was supposed to be impeached. 

[¶13.] On appeal, the Ronans argue that not all the statements from the 

meeting fall within the scope of SDCL 19-12-14. In other words, not all the 

statements are “apologizing for an adverse outcome in medical treatment,” an “offer 

to undertake corrective or remedial treatment or action,” or a “gratuitous act to 

assist affected persons.” SDCL 19-12-14. Defendants respond that this argument 

was waived because it was not raised at the lower level. Alternatively, Defendants 

assert that the statements in the notes were properly excluded under SDCL 19-12-

14.

[¶14.] “Ordinarily an issue not raised before the trial court will not be 

reviewed at the appellate level.” State v. Gard, 2007 S.D. 117, ¶ 15, 742 N.W.2d 

257, 261. “The trial court must be given an opportunity to correct any claimed error 

before we will review it on appeal.” Id. The Ronans have not directed us to a 

location in the record where this argument was raised below. In reviewing the 

record, we cannot find a ruling by the circuit court on this issue. It appears that

this issue was waived. 

[¶15.] Moreover, even if this argument was not waived, there was no offer of 

proof that provides factual context to demonstrate that the statements should not 

have been excluded under SDCL 19-12-14. Although the notes were provided to the 
#25813

-6-

court, there is no context to understand them.4 The Ronans did not offer their own 

testimony regarding the meeting. Instead, the Ronans’ offers of proof were 

testimony from Schwarting and Nelson. When questioned, however, neither 

Schwarting nor Nelson could recall making the statements in Patricia Ronan’s 

notes. Schwarting and Nelson characterized the meeting as a time for the Ronans 

to discuss Dr. Ronan’s clinical course. The Ronans failed to show that the 

statements did not fit within SDCL 19-12-14. Therefore, even if the issue was not 

waived, the Ronans did not demonstrate that the circuit court erred in excluding 

the statements under SDCL 19-12-14. 

[¶16.] The Ronans also argue that the statements are admissible as 

“admissions against interest for purposes of impeachment” under the final sentence 

of SDCL 19-12-14. That sentence provides: “Nothing in this section prevents the 

admission, for the purpose of impeachment, of any statement constituting an 

admission against interest by the health care provider making such statement.” 

(Emphasis added.) There is, however, no dispute that the Ronans’ offers of proof 

were made in their case-in-chief when there was no defense evidence to impeach;

and Schwarting and Nelson were not called as rebuttal witnesses. Nevertheless, 

the Ronans assert that they were entitled, during their case-in-chief, to use 

 

4. Defendants argue that the statements in the notes are not admissions 

against interest. They point out that the statements in the notes were made 

in a meeting to discuss Dr. Ronan’s care with Schwarting and Nelson. 

Furthermore, Schwarting and Nelson both testified that the purpose of the 

meeting was to listen to the Ronans’ concerns over the treatment Dr. Ronan 

had received. They also testified that, if they had apologized, it would have 

been an apology that the treatment had not met the Ronans’ expectations.
#25813

-7-

Schwarting’s and Nelson’s “admissions” in the notes to impeach the Defendants’ 

“general position and defenses.”

[¶17.] Concededly, statements of witnesses may be admissible as admissions 

against interest. See SDCL 19-16-32 (Rule 804(b)(3)). They may also be admissible

as admissions of a party opponent. See SDCL 19-16-3 (Rule 801(d)(2)). But these 

rules only govern their substantive admissibility as hearsay, and the last sentence 

of SDCL 19-12-14 imposes an additional restriction on the use of health care 

apology statements. They may only be used for the purpose of impeachment. See 

id. And, to admit extrinsic evidence of statements for purposes of impeachment, the 

proponent must comply with SDCL 19-14-25 (Rule 613(b)). Under that rule, the 

“[e]xtrinsic evidence of a prior inconsistent statement by a witness is [generally] not 

admissible unless the witness is afforded an opportunity to explain or deny the 

same . . . .”). See also 4 Michael H. Graham, Handbook of Federal Evidence 782 (7th 

ed. 2011) (“A prior statement of a witness may be employed for purposes of 

impeachment only if inconsistent with the witness’ in-court testimony.”).5 

Therefore, because Schwarting and Nelson were listed as the Ronans’ witnesses and

had not testified at the time the statements were offered, the circuit court properly 

concluded that at that point in the trial, the notes were not being offered to impeach

 

5. See also SDCL 19-14-8 (Rule 607) (providing that “[t]he credibility of a 

witness may be attacked by any party, including the party calling him”

(emphasis added)). This Court has noted that when “a witness makes an 

issue of his credibility by favorable direct testimony ‘he opens the door to 

impeachment evidence on cross-examination.’” Kostel v. Schwartz, 2008 S.D. 

85, ¶ 20, 756 N.W.2d 363, 373 (emphasis added) (internal quotation marks 

omitted) (quoting State v. Litschewski, 1999 S.D. 30, ¶ 22, 590 N.W.2d 899, 

903).
#25813

-8-

under the last sentence of SDCL 19-12-14. They were being offered as substantive 

evidence to prove Defendants’ negligence in violation of the general rule in the first 

part of SDCL 19-12-14. We affirm the circuit court’s conclusion that at the point 

the notes were offered, the last sentence of SDCL 19-12-14 did not apply.

[¶18.] The Ronans cite two cases, People v. Byfield, 790 N.Y.S.2d 434 (N.Y. 

App. Div. 2005), and Dodson v. Allstate Insurance Co., 47 S.W.3d 866 (Ark. 2001), in 

support of their argument that admissions may be used to negate an opposing 

party’s general position at trial. Neither case applies. Dodson did involve the

general question whether admission of a pleading could be used as a party 

admission that was contrary to that party’s position at trial. Dodson, 47 S.W.3d at 

877. But the specific question was whether the pleading was actually impeaching; 

i.e., whether it “comprise[d] evidence of [the opposing party’s] position of the claims 

in the case.” Id. The court found that it was impeaching. The court then allowed 

use of the pleading but only because the court concluded that the pleading was

admissible as a “prior inconsistent statement” under Arkansas’s equivalent to 

SDCL 19-14-24 and -25 (Rule 613). Id. at 879-80. The court did not, however, 

discuss the predicate requirements for admissibility of extrinsic proof of prior 

inconsistent statements under Rule 613(b). Id. Additionally, Dodson did not 

consider whether some inconsistent testimony is a prerequisite to the admission of 

statements constituting admissions against interest when offered under the 

impeachment limitation in an additional statute like SDCL 19-12-14. Byfield is also 

distinguishable. In Byfield, the court only held that the court did not abuse its 

discretion in allowing the prosecution to admit the defendant’s alibi notice and to 
#25813

-9-

cross-examine a defense witness about a contrary statement in the notice. Byfield,

790 N.Y.S.2d at 435. Thus, in Byfield, one permitted use involved crossexamination of trial testimony. Further, with respect to the permitted use of the 

judicial admission (the alibi notice), the court did not discuss its admissibility under 

a statute like SDCL 19-12-14 that limited the admission’s use to impeachment.

[¶19.] From our review of the court’s decision to exclude testimony related to 

the September 2006 notes, we cannot conclude that the court abused its discretion. 

[¶20.] 2. Whether the circuit court erred in precluding the 

impeachment of a defense expert witness.

[¶21.] Dr. John Galgiani was retained as an expert witness for Defendants by 

the Davenport Evans law firm. Dr. Galgiani’s retention was disclosed to Russ 

Janklow, who represented the Ronans at that time. In August 2008, the Davenport 

Evans law firm withdrew from the case due to a conflict of interest. After Dr. 

Galgiani was retained, Dr. Ronan was referred to him by another physician for 

treatment. The record indicates the referral occurred sometime after October 2008. 

At the time the appointment was made, Dr. Ronan was aware that Dr. Galgiani had 

been consulted as an expert. Recognizing a potential conflict, Dr. Galgiani cancelled 

the appointment before seeing Dr. Ronan. 

[¶22.] Defendants moved in limine to preclude the Ronans from questioning 

Dr. Galgiani about the cancelled appointment. Over the Ronans’ objection, the 

circuit court granted the motion, finding the issue of the cancelled appointment to 

be irrelevant. However, the court indicated that it would reconsider its ruling for 

impeachment purposes if the door was opened by testimony. 
#25813

-10-

[¶23.] At trial, counsel for Defendants asked Dr. Galgiani if he would have 

treated Dr. Ronan with antifungal medication. Based on this testimony, the 

Ronans asked the court to reconsider its earlier ruling prohibiting questioning 

about the cancelled appointment. The Ronans argued that Defendants opened the 

door to impeachment with this line of questioning because Dr. Galgiani had the 

opportunity to actually treat Dr. Ronan but declined to do so in order to continue 

serving as an expert witness for the defense. According to the Ronans, this goes to 

Dr. Galgiani’s credibility and was therefore appropriate grounds for impeachment. 

The court affirmed its earlier ruling that questioning Dr. Galgiani about cancelling 

his appointment with Dr. Ronan was not relevant. No offer of proof was made on 

this issue. On appeal, the Ronans argue that the circuit court abused its discretion 

in prohibiting impeachment of Dr. Galgiani. 

[¶24.] Defendants assert that the court was correct in determining that the 

cancellation of the appointment was not relevant. Defendants also argue that Dr. 

Galgiani would presumably have been precluded from serving as the defense expert 

if he had seen Dr. Ronan. Furthermore, under the Ronans’ theory, whenever a 

defendant reveals an expert, a plaintiff could attempt to make appointments with 

that expert. When the expert refused, the plaintiff could use that refusal to attempt 

to impeach the expert. This would put retained experts in a difficult situation. 

[¶25.] The only authority the Ronans provide on appeal is Mousseau v. 

Schwartz, 2008 S.D. 86, 756 N.W.2d 345. In Mousseau, the plaintiff was not 

allowed to impeach the defendant regarding the probationary status of his medical 

license. Id. ¶ 25, 756 N.W.2d at 355. This Court held that Schwartz’s testimony 
#25813

-11-

amounted to expert testimony and evidence about the status of his medical license 

was directly relevant to the expert’s credibility. Id. ¶ 36, 756 N.W.2d at 360-61.

The Ronans analogize this case to Mousseau because they were not allowed to 

question Dr. Galgiani and call his credibility into question. 

[¶26.] The Ronans reliance on Mousseau is misplaced. In that case, the 

impeachment was of the defendant, Dr. Schwartz. Id. The status of the defendant’s

medical license is more relevant to his credibility than a cancelled appointment. It 

directly related to his ability to provide competent medical care. In this case, 

however, whether Dr. Galgiani chose to treat a particular patient does not affect his 

competency to give an expert medical opinion on the treatment a patient actually 

received.

[¶27.] “The trial court’s evidentiary rulings are presumed correct and will not 

be overturned absent a clear abuse of discretion. An abuse of discretion refers to a 

discretion exercised to an end or purpose not justified by, and clearly against reason 

and evidence.” St. John, 2011 S.D. 58, ¶ 10, 804 N.W.2d at 74. In this case, the 

Ronans have not demonstrated how the circuit court’s decision to prohibit the 

impeachment of Dr. Galgiani in this manner was an abuse of discretion. The court 

found it was not relevant. The Ronans have not shown us otherwise. Furthermore, 

the Ronans have not demonstrated that they were prejudiced by the circuit court’s 

ruling. See City of Sioux Falls v. Kelley, 513 N.W.2d 97, 108 (S.D. 1994) (“Where 

there has been no offer of proof on excluded testimony, and it is impossible to 

determine whether the party had been prejudiced by the court’s ruling, the 
#25813

-12-

contention that the court erred in excluding testimony has not been preserved for 

appeal.”).

CONCLUSION

[¶28.] The circuit court did not abuse its discretion in excluding the 

statements related to the September 2006 meeting. Also, the circuit court did not 

abuse its discretion in prohibiting the impeachment of Dr. Galgiani. We affirm.

[¶29.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.