#24109, #24125-rev & rem-DG 

2008 SD 86

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

DIANE MOUSSEAU, Plaintiff and Appellant, 

v. 

STEVEN SCHWARTZ, M.D., AND, 

STEVEN SCHWARTZ, M.D., P.C., d/b/a 

WEST RIVER NEUROSURGERY & SPINE, Defendants and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. PETER FULLER 

Judge 

* * * * 

MICHAEL C. LOOS of 

Clayborne, Loos, Strommen 

 & Gusinisky, LLP 

Rapid City, South Dakota Attorneys for plaintiff 

and appellant. 

LONNIE R. BRAUN 

TIMOTHY L. THOMAS of 

Thomas Nooney Braun 

Solay & Bernard, LLP 

Rapid City, South Dakota Attorneys for defendants 

and appellees. 

* * * * 

ARGUED ON MARCH 26, 2008 

 OPINION FILED 08/20/08
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#24109, #24125 

 

GILBERTSON, Chief Justice 

[¶1.] On November 15, 2002, Diane Mousseau (Mousseau) filed suit against 

Steven B. Schwartz, M.D., and Steven B. Schwartz, M.D., P.C., d/b/a West River 

Neurosurgery & Spine (collectively Dr. Schwartz) alleging medical malpractice. 

The case was tried to a jury on February 12-15, 2006, in the South Dakota Seventh 

Judicial Circuit. The jury entered a verdict for Dr. Schwartz and on February 21, 

2006, the trial court entered judgment on the verdict. We reverse and remand. 

FACTS AND PROCEDURE

[¶2.] On June 5, 2001, Mousseau consulted with Dr. Schwartz, a Rapid City, 

South Dakota, neurosurgeon, about a problem she was having with pain in her back 

and lower extremities. Dr. Schwartz at that time was new to the practice of 

neurosurgery in Rapid City having only commenced his practice in June 2000, 

shortly after he was issued his license to practice medicine. Dr. Schwartz conducted 

an examination and diagnosed Mousseau with the following condition, as he 

testified to at trial: 

I found that there was a severe degree of spinal stenosis1 

1. Stenosis is a condition that describes a narrowing or closing of an anatomical 

space. http://www.cure-back-pain.org/foraminal-stenosis.html (last visited 

August 13, 2008). 

Spinal stenosis refers to the condition where, due to degeneration of, or wear 

and tear on a part of the spinal column, the spinal canal becomes narrower 

putting pressure on the nerves in the canal thereby causing pain in the 

extremities. 

http://www.eorthopod.com/public/patient_education/6571/lumbar_laminectom

y.html (last visited August 13, 2008). 
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at the L3-42 level with associated neuro foraminal stenosis,3that 

being the tunnel the nerve roots traveled through. I found there 

was a moderate to severe degree of spinal stenosis at the next 

level down, which was L4-5, also, with foraminal stenosis, and I 

found some foraminal stenosis on the left at the lowest segment, 

the L5-S1 level and along with that a grade one 

spondylolisthesis at the L5-S1 level which was a slight slippage 

of the L5 vertebral body forward on the sacrum. 

Based on his diagnosis, Dr. Schwartz testified that he made the following 

recommendation to Mousseau: 

[B]ased on the severity of her pain, the duration of her 

symptoms, the severe limitation that she had with her 

walking and standing and the generalized discomfort that 

she had because of this, that the treatment would be 

my recommendation which could consist of opening up 

those compressed areas and that was the laminectomy4 

that I recommended, which was an L3-L4 and L5 

2. There are three main groups of vertebrae – the cervical vertebrae atop the 

spinal column, of which there are seven; the thoracic vertebrae, situated 

below the cervical vertebrae, of which there are twelve; and the lumbar 

vertebrae situated below the thoracic vertebrae, of which there are five. The 

letters “C,” “T,” and “L” are used respectively to designate cervical, thoracic 

and lumbar vertebrae. The sacrum is located at the base of the spinal 

column and below it, the coccyx or “tailbone.” The five sacral and four 

coccygeal vertebrae are fused and together are considered one bone. 

http://www.apparelyzed.com/spine.html (last visited August 13, 2008). 

3. Foraminal stenosis is a spinal condition occurring when a foramen, or 

opening between vertebrae through which a nerve root exits the spinal 

column, narrows. The condition can result in compression of the spinal nerve 

root causing pain and discomfort in the extremities. http://www.orthospine.com/content/spine/eidelson0124_2003.html (last visited August 13, 

2008). 

4. Laminectomy is a procedure used to treat spinal stenosis. See supra n1 

regarding spinal stenosis. During the procedure, the spinous process (the 

bony projection on the posterior side of the vertebra) and the lamina on each 

side are removed from the affected area, thereby alleviating pressure in the 

spinal canal. http://www.eorthopod.com/public/patient_education/6571/ 

lumbar_laminectomy.html (last visited August 13, 2008). 
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laminectomy with foramintomies5 which is opening up 

the tunnels that the nerve roots ran through. . . . 

Dr. Schwartz conducted the procedure on Mousseau the following day. 

[¶3.] After experiencing some initial relief, Mousseau began having renewed 

pain in her back and lower extremities within two months of the surgery. On 

October 10, 2001, she underwent another examination. During the trial, Dr. 

Schwartz testified that he diagnosed her condition at that time as follows: 

The findings noted . . . that there was evidence of a 

 Retrolisthesis6 of the L3 on L4 which appeared to increase 

from the flexion to the extension view by several millimeters. 

In addition, there was loss of the disk space height at this 

level with concomitant . . . neuro foraminal stenosis. I 

noted that there was a slight spondylolisthesis, grade one, 

of L5 on S1 which appeared to be stable and did not move 

from flexion to extension and I gave my impression and 

that was instability demonstrated at the L3-4 level with 

disk space collapse. 

5. Foraminotomy is a procedure performed to enlarge the foramen, or opening 

between vertebrae through which a nerve root exits the spinal column, in 

order to alleviate pain caused by pressure on the spinal nerve root. During 

the procedure, the surgeon removes the bone or tissue which obstructs the 

passageway and causes pressure. This information was obtained at 

http://www.spineuniverse.com/displayarticle.php/article554.html (last visited 

August 13, 2008). 

6. Retrolisthesis is the posterior displacement of one vertebra on the subjacent 

vertebra. http://www.medcyclopaedia.com/library/topics/

volume_iii_1/r/retrolisthesis.aspx (last visited August 13, 2008). 
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On November 1, 2001, Dr. Schwartz performed a second surgery on Mousseau. He 

described the procedure as “an L3-4 redo, diskectomy7 with posterior lumbar 

intrabody fusion8 at L3-L4, L3-L4, pedicle screw fusion9 and [postero-] lateral 

autograft fusion.”10 

[¶4.] Mousseau, who testified that she continued to suffer back pain as well 

as pain and weakness in the lower extremities following the second surgery, filed a 

malpractice suit against Dr. Schwartz on November 15, 2002. At the February 12-

15, 2006 trial, Mousseau presented evidence through the expert testimony of a 

7. Diskectomy or “[d]iscectomy is the surgical removal of herniated disc material 

that presses on a nerve root or the spinal cord.” 

http://www.webmd.com/back-pain/discectomy-or-microdiscectomy-for-aherniated-disc (last visited August 13, 2008). 

8. “Posterior lumbar interbody fusion surgery involves adding bone graft to an 

area of the spine to set up a biological response that causes the bone to grow 

between . . . vertebral elements[,] thereby stop[ping] motion at that segment.” 

http://www.spine-health.com/treatment/back-surgery/posterior-lumbarinterbody-fusion-plif-surgery (last visited August 13, 2008). 

9. “[P]edicle screw[s, which are] sometimes used as an adjunct to spinal fusion 

surgery, provide[ ] a means of gripping a spinal segment. The screws 

themselves do not fixate the spinal segment, but act as firm anchor points 

that can then be connected with a rod.” http://www.spinehealth.com/treatment/spinal-fusion/pedicle-screws-for-spine-fusion (last 

visited August 13, 2008). 

10. “A Postero-lateral spinal fusion is achieved through an incision in the middle of 

the back by joining adjacent vertebrae with screws and rods but without 

interfering with the disc. Small pieces of bone are usually taken from the back 

of the pelvis, through the same skin incision, and are placed along the back and 

side of the vertebrae to be fused.” http://www.spine. 

com.au/spinal_fusion.htm#Postero-lateral%20Fusion: (last visited August 13, 

2008). The term “autograft” is in reference to the taking of bone tissue from one 

part of the patient’s body and placing it at another. 

http://www.medterms.com/script/main/art.asp?articlekey=40486 (last visited 

August 13, 2008).
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Rapid City neurosurgeon, Dr. Larry Teuber, that Dr. Schwartz had failed to deliver 

the applicable standard of care in three ways. 

[¶5.] First, Dr. Teuber testified that Dr. Schwartz failed to decompress 

spinal nerves in the L5-S1 vertebral segment, thereby leaving a stenosis condition 

in that location at the conclusion of the initial surgery on June 6, 2001. Second, Dr. 

Teuber stated that the November 1, 2001 fusion surgery was necessary because of

the procedures that Dr. Schwartz performed on Mousseau on June 6. Dr. Teuber 

testified that the laminectomy performed at the L3-L4 vertebral segment on June 6, 

actually weakened the spine in that location with the predictable result that the L3 

vertebra slid back in relation to the L4 vertebra resulting in a “clinically significant 

retrolisthesis” at that segment. Dr. Teuber further indicated that a complete 

diagnosis prior to surgery would have taken into account the need for fusion in 

addition to laminectomy at the L3-L4 segment. Dr. Teuber stated that this should 

have been discussed with Mousseau prior to the June 6 surgery and that she should 

have been advised that if the fusion was not performed during the initial surgery, it 

would have to be undertaken later. 

[¶6.] Finally, Dr. Teuber testified that Dr. Schwartz breached the applicable 

standard of care when he excessively retracted Mousseau’s spinal nerve roots 

during the November 1, 2001 fusion surgery, thereby causing nerve damage. Dr. 

Teuber stated that excessive manipulation of the nerve roots during the fusion 

surgery resulted from the increased difficulty in performing the procedure due to 

the growth of scar tissue around the affected nerves subsequent to the June 6 

surgery. Dr. Teuber indicated that the nerve retraction injury was the avoidable 
#24109, #24125 

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result of not performing the L3-L4 fusion coincident with laminectomy on June 6, 

2001, and thus, constituted a breach of the standard of care. 

[¶7.] In a pretrial motion to exclude evidence of other malpractice claims 

against Dr. Schwartz, defense counsel acknowledged that Dr. Schwartz was the 

subject of “numerous claims” alleging malpractice. Two suits, filed by Bobbi Gay 

and Sharon Sowards,11 were specifically addressed in Mousseau’s response to 

defense counsel’s pretrial motion and at a pretrial motions hearing.12 Subsequent 

to the initiation of Mousseau’s suit against Dr. Schwartz, the South Dakota State 

Board of Medical and Osteopathic Examiners (the “Board”) brought disciplinary 

proceedings against him to address allegations of malpractice. On December 17, 

2003, three and one half years after Dr. Schwartz commenced his practice and two 

and one half years after his first surgery on Mousseau, the Board entered its 

“Stipulation On Agreed Disposition And Order Of Probation” (the Stipulation) in 

regard to the licensure of Dr. Schwartz. Therein, his license was placed on 

probationary status. As a condition of the probation, Dr. Schwartz was required to 

complete one year of “advanced clinical training” in neurosurgery and a minimum of 

three months in neuroradiology. His practice of medicine was restricted to only 

11. Pretrial documents indicate that Dr. Schwartz performed vertebral fusion 

surgery at the incorrect level on Bobbi Gay and removed a healthy vertebra 

instead of the intended adjacent fractured vertebra from Sharon Sowards. 

12. “By Dr. Schwartz’s own estimate, there have been over thirty suits alleging 

medical malpractice filed against him. However, some of those have been 

dismissed, three others have been tried to defense verdicts, and at least nine 

remain to be tried.” Kostel v. Schwartz, 2008 SD 85, ¶21 n15, __ NW2d __, __ 

n15. 
#24109, #24125 

-7- 

that required to fulfill his training requirement. Further conditions of his probation 

provided that for a period of five years, following the successful completion of his 

training, Dr. Schwartz was prohibited from solo practice, thereby limiting himself to 

a neurological group practice setting. The Stipulation also stated: 

This Agreement for the disposition of the above entitled 

contested case is a mater of public record and the obligations 

of the Board with respect thereto shall be governed by 

the laws of South Dakota and current Board policy. 

(Emphasis added). Moreover, the Stipulation provided that “the Board will report 

its disciplinary action to the National Practitioner Data Bank, the Healthcare 

Integrity and Protection Data Bank, and the Federation of State Medical Boards.” 

The Board therein stated that the reason given for Dr. Schwartz’s license probation 

was “Malpractice.” 

[¶8.] Prior to trial, Dr. Schwartz filed a motion to exclude the Stipulation 

evincing his licensure probation and the conditions thereon. Mousseau sought to 

admit the Stipulation as evidence that Dr. Schwartz lacked the necessary 

knowledge, skill and training to provide the applicable standard of care. Moreover, 

Mousseau sought to use the Stipulation to impeach Dr. Schwartz’s testimony. The 

trial court granted Dr. Schwartz’s motion and excluded the Stipulation. 

[¶9.] The jury returned a verdict for Dr. Schwartz and Mousseau raises the 

following issue on appeal: 

 Whether the trial court abused its discretion by excluding 

the Board’s order of probation and agreed stipulation, 

including sanctions and conditions imposed therein. 
#24109, #24125 

-8- 

STANDARD OF REVIEW 

[¶10.] “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.’” Kaiser v. Univ. Physicians Clinic, 2006 SD 95, ¶29, 724 NW2d 186, 

194 (internal citations omitted). 

ANALYSIS AND DECISION 

[¶11.] Whether the trial court abused its discretion by 

excluding the Board’s order of probation and agreed 

stipulation, including sanctions and conditions imposed 

therein. 

[¶12.] Mousseau asserts that the trial court’s decision to exclude the 

Stipulation and evidence about the status of Dr. Schwartz’s licensure and 

conditions placed thereon constituted prejudicial error. Mousseau argues that, had 

she been able to use the Stipulation in her case-in-chief or to cross-examine Dr. 

Schwartz, the outcome of the trial would have likely been different. See Kjerstad v. 

Ravellette Publications, Inc., 517 NW2d 419, 427 (SD 1994) (opining that the 

prejudicial impact of evidentiary error is amplified when the evidence in question 

goes to the “vital issue” in a case). We will address the bases for Mousseau’s 

assertion of error separately. 

Admissibility of the Stipulation as Evidence of the Degree of Knowledge and Skill 

Possessed by Dr. Schwartz 

[¶13.] The trial court delivered Instruction No. 6 to the jury as follows: 

 In performing professional services for a patient, a 

neurosurgeon has the duty to possess that degree of 

knowledge and skill ordinarily possessed by neurosurgeons 
#24109, #24125 

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of good standing engaged in the same field of specialization 

in the United States. 

 A neurosurgeon also has the duty to use that care and skill 

 ordinarily exercised under similar circumstances by 

 neurosurgeons 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 

neurosurgeon is employed. 

 A failure to perform any such duty is negligence. 

(Emphasis added). Mousseau contends that this instruction and our settled case 

law establishes two separate duties for the practitioner engaged in the performance 

of professional services – a duty to possess the degree of knowledge and skill 

ordinarily possessed by practitioners in the profession and a duty to use that 

knowledge and skill in the manner ordinarily used by practitioners in the profession 

under like circumstances. Mousseau avers that a breach of either duty is then 

negligence per se because it constitutes a failure to meet the applicable standard of 

care. Consequently, she argues that the trial court abused its discretion by 

excluding the Stipulation and the provisions therein pertaining to Dr. Schwartz’s 

licensure probation and the conditions thereupon. Mousseau argues such evidence 

was relevant to the consideration of whether Dr. Schwartz failed to meet the 

applicable standard of care by breaching a duty to possess the requisite degree of 

knowledge and skill. 

[¶14.] Dr. Schwartz submits that our settled case law does not establish two 

separate grounds upon which the practitioner can be found liable for negligence. 

He contends that the practitioner is negligent only if he deviates from the applicable 

standard of care and such only occurs if he should fail to have and use the skill and 
#24109, #24125 

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care ordinarily employed by practitioners in the profession under like 

circumstances. Thus, he reasons, since the degree of knowledge and skill possessed 

by the practitioner does not alone constitute a basis upon which a jury can find a 

failure to meet the applicable standard of care, the trial court correctly excluded the 

Stipulation since it would not have established the causation required to sustain a 

negligence action for medical malpractice. 

[¶15.] In this regard, Dr. Schwartz cites Martinmaas v. Engelmann, 2000 SD 

85, ¶31, 612 NW2d 600, 608 (holding that the defendant physician deviated from 

the applicable standard of care when he “breached his duty to ‘use that care and 

skill ordinarily exercised under similar circumstances by physicians in good 

standing’” and that such deviation constituted malpractice) (emphasis added); 

Shamburger v. Behrens (Shamburger II), 418 NW2d 299, 305 (SD 1988) (citing a 

jury instruction similar to Instruction No. 6 that, however, concluded with the 

statement, “The failure to perform these duties is negligence”) (emphasis added); In 

re Appeal of Schramm, 414 NW2d 31, 34 (SD 1987) (concluding in reference to a 

jury instruction similar to Instruction No. 6 that the issue becomes “whether the 

professional deviated from this required standard of care”) (emphasis added) 

(citation omitted); Block v. McVay, 80 SD 469, 476, 126 NW2d 808, 811 (1964) 

(affirming a judgment for defendant physician where there was no evidence to 

support a finding “that he failed to apply his skill and judgment with ordinary 

care”) (emphasis added), overruled on other grounds by Shamburger v. Behrens

(Shamburger I), 380 NW2d 659 (SD 1986); Hansen v. Isaak, 70 SD 529, 531, 19 

NW2d 521, 522 (1945) (recognizing that while the law requires a physician to have
#24109, #24125 

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the degree of learning and skill ordinarily possessed by practitioners in the 

profession, negligence consists of the physician’s “failure to conform to a standard of 

care” defined therein as “the obligation to have and to use the skill and care” 

commonly possessed by members of the profession) (emphasis added). 

[¶16.] While we are not persuaded by Mousseau that a practitioner fails to 

meet an applicable standard of care simply by failing to possess the knowledge and 

skill ordinarily possessed by practitioners in the field, neither are we persuaded by 

Dr. Schwartz that the Stipulation was properly excluded simply because a breach of 

his duty to possess ordinary knowledge and skill did not alone constitute a failure to 

meet the applicable standard of care and establish the causal connection to 

Mousseau’s injury. 

[¶17.] As Dr. Schwartz points out, this Court has previously stated: 

 The law requires that a physician shall have the degree 

of learning and skill ordinarily possessed by physicians 

of good standing practicing in the same community and 

negligence of a doctor consists of his failure to conform 

to the standard of care which the law establishes for 

members of his profession, that is, the obligation to have 

and to use the skill and care which members of his 

profession commonly possess and exercise under similar 

circumstances. Warwick v. Bliss, 46 SD 622, 195 NW 501 [(1923)]. 

Hansen, 19 NW2d at 522 (emphasis added). While we no longer subscribe to that 

portion of the statement that refers to a local standard of care, see Shamburger II, 

418 NW2d at 306 (adopting a national standard of care by which the practitioner 

shall be measured), Hansen does in essence reflect the content of Instruction No. 6 

from the instant case. The question before us is to what extent, if any, 

consideration of the degree of “learning and skill” possessed by the physician enters 
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into the determination of malpractice. This Court’s opinion in Fjerstad v. Knutson, 

271 NW2d 8 (SD 1978), overruled on other grounds by Shamburger I, 380 NW2d at 

663, together with our review of opinions from other jurisdictions is instructive. 

[¶18.] In Fjerstad, the plaintiff sued the defendant medical intern for 

malpractice contending that he was negligent per se because he practiced medicine 

without a license. Id. at 13. In rejecting the plaintiff’s broad contention, the Court 

recognized that while patients are entitled to an applicable standard of care 

notwithstanding the caregivers’ status as an intern, the patient’s interest must be 

balanced with the medical licensure requirement that a fully licensed physician 

must first accredit himself through the institution of the intern requirement. Id. at 

13-14. However, the Court signaled a broader application for its holding that 

practicing medicine without a license is not evidence per se of negligence, stating: 

 Aside from the intern requirement, we do not believe that 

failure to have a license should, in itself, render the 

unlicensed person negligent. A physician is negligent if 

his treatment is improper, but failure to have a license is 

not enough to render the treatment automatically deficient. 

Id. at 14 (citing Tittle v. Hurlbutt, 497 P2d 1354 (Hawaii 1972); Janssen v. Mulder, 

205 NW 159 (Mich 1925)). 

[¶19.] Tittle was another case involving a plaintiff who asserted that a 

physician was negligent per se by practicing medicine without a license. Tittle, 497 

P2d at 1355. Although, the physician was highly experienced having practiced 

medicine for eighteen years in two jurisdictions, including a medical administration 

position with the United States Navy, he did not have a license because he had not 

yet lived in Hawaii long enough to satisfy that state’s residency requirement, which 
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was in existence at the time the act giving rise to the claim arose. Id. at 1356. The 

Hawaii Supreme Court rejected the plaintiff’s assertion stating that “it would have 

been absurd to measure his skill by his non-licensed status.” Id. at 1356. See also 

Janssen, 205 NW at 161 (holding that a failure to comply with the state registration 

requirement “is not in itself sufficient on which to base a charge of malpractice”) 

(emphasis added). 

[¶20.] In Hall v. Hilbun, 466 So2d 856, 860-66 (Miss 1985), superseded by 

statute on other grounds, the plaintiff in a medical malpractice action challenged 

the manner in which the defendant physician conducted postoperative care of the 

decedent. The court reiterated the applicable law that a physician “has a duty of 

care consistent with the level of expertise the physician holds himself out as 

possessing and consistent with the circumstances of the case.” Id. at 869 (emphasis 

added). The court then stated: 

Liability results from the physician’s failure to provide 

requisite care under the circumstances, and nothing turns 

on whether this failure resulted from incompetence or 

 neglect. 

Our law has long focused upon the quality of care a 

physician’s knowledge and skill may enable him to 

render. . . . [A] physician must possess that reasonable 

degree of learning, skill and experience which is ordinarily 

possessed by others in his profession. 

Id. (emphasis added). 

[¶21.] In Durham v. Vinson, 602 SE2d 760 (SC 2004), the South Carolina 

Supreme Court considered an appeal by a defendant physician in a medical 

malpractice suit. The defendant asserted that a jury instruction, similar to 

Instruction No. 6, supra ¶13, was erroneous in that it should not have included a 
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“knowledge component.” See id. at 765. The defendant argued that emphasis on 

his education and training combined with the instruction implied to the jury that 

the defendant could be found liable for malpractice “solely on the basis of a lack of 

education or background[.]” Id. (emphasis added). The court agreed with the 

defendant to the extent that the instruction suggested that a lack of professional 

learning, “by itself,” constituted a breach of the standard of care. Id. (emphasis 

added). However, while holding that in the case at bar any such implication was 

harmless, the court went on to state that “[t]he standard of care in a medical 

malpractice action concerns both the physician’s skill and the physician’s 

professional learning.” Id. at 765-66 (emphasis original). The court further 

developed this view as follows: 

Professional learning is pertinent to a physician’s 

background and training, particularly when the procedure 

in question . . . requires a special kind of learning. 

Therefore, the knowledge component was properly included 

in the jury charge. But the lack of or inadequacy of such 

knowledge is not, by itself, dispositive as to whether a 

physician is liable for medical malpractice. 

Id. at 766 (emphasis added). 

[¶22.] We read the pertinent sections of these opinions together to mean that 

a deficit in the degree of knowledge and skill possessed by a practitioner from that 

ordinarily possessed by other practitioners in the field is not alone sufficient for the 

fact finder to conclude that the applicable standard of care has not been met. 

However, that deficit is relevant to that determination in that it goes to the question 

of whether the practitioner had and used the skill and care which other 

practitioners in the field commonly possess and use. See supra ¶17 (quoting 
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Hansen, 19 NW2d at 522); see also Kostel v. Schwartz, 2008 SD 85, ¶59, __ NW2d 

__, __ (holding that language in a jury instruction stating that a “result alone is not, 

in itself, evidence of negligence” was not to be interpreted to mean that the nature 

of the result is no evidence of negligence, but rather could be considered along with 

other evidence in making that determination). This is intuitive in that one who 

does not possess ordinary knowledge and skill cannot apply either in the course of 

conducting a procedure. 

[¶23.] Dr. Schwartz held himself out as a licensed practitioner in the field of 

medicine specializing in neurosurgery. Unlike the usual medical malpractice case, 

which merely questions the otherwise competent physician’s application of a 

standard of care, here, Mousseau asserted that Dr. Schwartz failed to even possess 

the degree of knowledge and skill ordinarily possessed by neurosurgeons. 

Accordingly, Dr. Schwartz should be held to possess the degree of knowledge and 

skill ordinarily commensurate with such credentials. We conclude that Mousseau 

should have been able to introduce the Stipulation on this basis, because it was 

relevant to the jury’s determination of whether Dr. Schwartz possessed ordinary 

knowledge and skill and whether he had and used the skill and care ordinarily 

possessed and used by other neurosurgeons under like circumstances.13

 

13. Since neither Mousseau nor Dr. Schwartz have alleged that Instruction No. 6 

was erroneous, we do not address that issue on this appeal. However, we 

caution that such an instruction may be misinterpreted such that an 

inference could be drawn that a practitioner might fail to meet an applicable 

standard of care either by failing to possess or use the ordinary knowledge 

and skill possessed and used by practitioners in the field. 
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[¶24.] Alternatively, Dr. Schwartz argues that to admit the Stipulation would 

violate SDCL 19-12-5 (Rule 404(b))14 in that it would serve to establish an inference 

for the jury that when Dr. Schwartz operated on Mousseau he was negligent in 

conformity with prior acts. In Kostel, we summarized the analysis that must 

proceed before “other acts” evidence can be properly admitted under Rule 404(b) as 

follows: 

Given that the list of “other purposes” under Rule 404(b) 

for which evidence of other acts may be admitted is 

nonexclusive, the possible uses, other than character is 

limitless. Rule 404(b) is thus an inclusionary rule, not 

an exclusionary rule. Evidence is only inadmissible under 

the rule if offered to prove character.

 

2008 SD 85, ¶27, __ NW2d __, __ (citations omitted) (emphasis original). 

[¶25.] In this case, Mousseau has not argued for inclusion of the Stipulation 

as evidence of Dr. Schwartz’s character or to show that he acted in conformity with 

some prior act. As we have already set out in the foregoing analysis, Mousseau 

sought to introduce the Stipulation as evidence of Dr. Schwartz’s deficiency in 

knowledge and skill and that such deficiency was relevant to his ability to meet the 

applicable standard of care that required him to have and to use the skill and care 

 

14. Rule 404(b) codified under SDCL 19-12-5 provides: 

Evidence of other crimes, wrongs, or acts is not admissible 

to prove the character of a person in order to show that 

he acted in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident. 

(Emphasis added).
#24109, #24125 

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of that ordinarily possessed and used by neurosurgeons under similar 

circumstances. While the Stipulation is certainly prejudicial to Dr. Schwartz, he 

has failed to show that it is unfairly so or that the prejudicial nature of the 

Stipulation outweighs its probative value. Therefore, his alternative argument also 

fails. 

Admissibility of the Stipulation to Cross-Examine Dr. Schwartz 

[¶26.] The trial court allowed Dr. Schwartz to testify as a “fact” witness 

without inquiry into the Stipulation and his licensure probation on the condition 

that Dr. Schwartz refrain from offering any opinion as to the applicable standard of 

care. Mousseau avers that notwithstanding this demarcation between “fact” and 

“expert” testimony, Dr. Schwartz effectively appeared as an expert witness by 

virtue of the highly technical nature of his testimony about how he arrived at his 

diagnosis of Mousseau’s condition and his recommendations to her, as well as the 

manner in which he described the procedures he performed on her. Simply stated 

she asserts that, in the eyes of the jury, Dr. Schwartz was providing technical, 

expert testimony, regardless of whether he specifically stated any opinions 

regarding the standard of care. See Block, 126 NW2d at 812 (holding that “[l]aymen

cannot be expected to possess the technical knowledge and experience required to 

intelligently second guess a physician on diagnostic procedures and the conclusions 

to be drawn therefrom; this is especially true in a case such as this where the [ ] 

nervous system[ ] of the human body [is] involved”) (emphasis added). Mousseau, 

therefore, argues that Dr. Schwartz should have been available for crossexamination about the Stipulation and the nature of his conditional licensure that 
#24109, #24125 

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was in effect at the time of trial, as it went to his knowledge, skill, learning, and 

training in the field of neurosurgery and thus the credibility of his testimony. See 

State v. Litschewski, 1999 SD 30, ¶¶22, 23, 590 NW2d 889, 903 (recognizing that 

where a witness makes an issue of his credibility by favorable direct testimony, he 

“‘opens the door’ to impeachment evidence on cross-examination”) (citations 

omitted). 

[¶27.] The excerpts of Dr. Schwartz’s testimony are replete with explanations 

of his diagnostic findings prior to both the June 6 and November 1, 2001 surgeries 

and how they supported his conclusions about recommended courses of treatment 

for Mousseau’s condition preceding the respective surgeries.15 Dr. Schwartz offered 

 

15. In addition to the diagnostic and recommendation testimony in regard to the 

June 6, 2001 surgery, cited supra ¶2, Dr. Schwartz also offered the following 

direct testimony at trial concerning his preoperative assessments and the 

procedure itself: 

 

 Dr. Schwartz: [G]iven the symptoms, given the excellent 

 clinical correlation that I felt existed, I felt 

 there was an explanation for her pain [ ] 

 that fit [ ] the symptoms very well and given 

 the treatment options, one of which . . . 

 was injection therapy, however, I told Ms. 

 Mousseau that epidural steroid injections 

 . . . in a diabetic doesn’t fix the problem 

 because this is a mechanical problem with 

 compression by bone, the overgrown facet 

 joints, that’s the body component of this 

 compression and thickened ligament. 

 There’s a . . . ligament just underneath 

 the facet joints called the ligament flavum 

 or yellow ligament, [ ] that was the majority 

 of the compression and that while steroids 

 might in an unpredictable manner help 

 . . . they might be like applying a Band-Aid[.] 

 It was not a fix and given the severity of 

 (continued . . .) 
#24109, #24125 

-19- 

________________________ 

(. . . continued) 

 the symptoms and the radiographic findings, 

 I felt that she was at a point where she needed 

 surgical treatment, and I made that 

 recommendation. . . . 

 Defense Counsel: [C]an you tell the jury how you would have 

 described [to Mousseau] the surgical 

 procedure you were performing[?] 

 Dr. Schwartz: I told Ms. Mousseau that with the spinal 

 narrowing that the bones at the back of 

 the spine, which look like a shingle, one 

 on the left, one on the right, with a pointy 

 spinous process in between the two and 

 that being the bone that you can feel when 

 you press on your back, that that was the 

 portion that we remove to open the canal. 

 I told her that I would do it at the third, 

 the fourth, and the fifth lumbar levels, and 

 I, also explained to her that each level 

 of the spine where the, [ ] nerve roots come 

 out at each segment or level, that the nerves 

 run through little tunnels, called a 

 neuroforamina and that I would decompress 

 those nerves where they ran through the 

 tunnels. I discussed the risks of the surgery 

 which there’s always a risk of bleeding, 

 although I felt that that was a minimal risk. 

 With her being diabetic, the risk of infection 

 was discussed, and that was although with 

 diabetics there is a high risk of infection, 

 I generally would tell patients and . . . I told 

 Ms. Mousseau that the risk of infection 

 was probably about 1 in 100, still extremely 

 low. I told her that we give prophylactic 

 antibiotics, that’s before the surgery and 

 then several doses of antibiotic after the 

 surgery. I reassured her that the risk of 

 bleeding was small and I would not expect 

 to have to transfuse her. So as I routine, 

 I wouldn’t get a blood consent for a transfusion 

 with this type of surgery because I would 

 explain that the only circumstances where 

 (continued . . .) 
#24109, #24125 

-20- 

________________________ 

(. . . continued) 

 blood might be needed would be in some 

 unforeseen complication which was extremely 

 rare and that typically was not even needed, 

 that we lost very little blood with this type 

 of surgery. I told Ms. Mousseau that 

 whenever I worked around in there and 

 saw the sac containing the nerves, there 

 was a little risk of injury to those structures, 

 although that was extremely small and 

 that I didn’t expect that there would be 

 any problem from a nerve injury, any 

 weakness or paralysis. I also explained 

 that working around the nerves and [ ] 

 the dural [sic] which is the covering around 

 the nerves and the sack containing the 

 nerves and contained in addition to the 

 nerves, the spinal fluid. That there’s always 

 a risk of spinal fluid leak. [I]f that tears, 

 . . . spinal fluid would leak out, typically 

 it would be seen at the time of surgery, and 

 fixed and [ ] what I would do is I would just 

 sew it up. I told her that there would be 

 in rare cases, it’s not obvious that a spinal 

 fluid leak has occurred, and that after the 

 surgery, [if] there was clear fluid draining 

 through the incision, . . . that would be an 

 indication that there was a spinal fluid leak 

 and the worst case scenario that we might 

 have to take her back to fix that. . . . I did 

 explain to Ms. Mousseau that in the majority 

 of cases, after you do a decompression, 

 that nine times out of ten, no further problems 

 develop. . . . However, in approximately 

 ten percent of patients, instability might 

 develop. If that happens it would require 

 a fusion, however, the chances of that 

 happening are so low that there’s really 

 no indication to do a fusion up front, 

 besides the fact that she had minimal 

 low back pain at the time that she saw 

 me, which once again was another 

 indication to me . . . that there really 

 wasn’t a component of instability present. 

 (continued . . .) 
#24109, #24125 

-21- 

________________________ 

(. . . continued) 

 

 . . . 

 Defense Counsel: Okay. Could you describe for the jury, 

 Doctor, what you did in performing the 

 surgery? 

 Dr. Schwartz: . . . The lumbar region was pricked in 

 a sterile fashion, an incision was made, 

 the levels were identified, the bones were 

 exposed, removed, and then foraminotomies 

 were carried out. After doing that, the 

 sac containing the nerve roots was inspected 

 by looking at it and the nerve roots 

 themselves were individually palpated or 

 felt with the surgical probe to make sure 

 that the probe could be passed along each 

 of the nerve roots on either side from L3 

 down to the S1 nerve root. And that’s 

 the way that I would ensure that the 

 decompression was adequate, and once 

 it was done, I would stop the bleeding, I 

stopped the bleeding, irrigated with saline 

 and peroxide which is something I did 

 routinely. The peroxide really to help kill 

 bacteria possibly as well just as kind of 

 an [ ] extra little thing that I routinely do, 

 and then was sutured in a multi-layered 

 fashion, meaning several layers initially I, 

 I would sew up and the muscle and fascia, 

 which is the thick connective tissue just 

 overlying the muscle and then the 

 subcutaneous tissue, and finally the skin. 

 A dressing was applied[.] Ms Mousseau 

 [ ] was placed back on the stretcher. She 

 was extubated by the anesthesiologist, 

 woken up and taken to recovery. 

 (Emphasis added). 

 Dr. Schwartz offered the following direct testimony in regard to his 

October 10, 2001 examination of Mousseau, his diagnostic conclusions and his 

recommendations leading up to the November 1, 2001 fusion surgery: 

 (continued . . .) 
#24109, #24125 

-22- 

________________________ 

(. . . continued) 

 Defense Counsel: . . . Could you relate what your chart reflects 

 your review of the x-ray was on October 

 10, 2001, of the flexion/extension films? 

 Dr. Schwartz: . . . The findings I noted was . . . that there 

 was evidence of a retrolisthesis of L3 on 

 L4 which appeared to increase from flexion 

 to the extension view by several millimeters. 

 In addition, there was loss of the disk space 

 height at this level, . . . with associated 

 neuron foraminal stenosis. I noted that 

 there was a slight spondyloisthesis, grade 

 one, of L5 on S1 which appeared to be stable 

 and did not move from flexion to extension 

 and I gave my impression and that was 

 instability demonstrated at the L3-4 level 

 with disk space collapse. 

 . . . 

 Defense Counsel: Following your review of the MRI’s and the 

 x-rays, Doctor, what did you do? 

 Dr. Schwartz: Well, given the findings on the flexion/ 

 extension films, I took these and I felt that 

 those were significant. My impression was 

 that there was instability. Ms. Mousseau 

 had related developing back pain and left 

 anterior thigh discomfort. This indicated 

 to me that there was potential instability 

 just based on the description of this 

 mechanical back pain, . . . which was 

 evidenced on these lateral flexion/extension 

 films and in addition to that, the foraminal 

 stenosis that I note on the x-rays would 

 correlate with an L3 nerve root compression 

 syndrome which would fit to me and along 

 with her description of this left anterior thigh 

 pain. So to me, this was the most significant 

 study, because it did indicate a problem 

 radiographically to my interpretation that 

 went along with her clinical symptoms and 

 (continued . . .) 
#24109, #24125 

-23- 

________________________ 

(. . . continued) 

 I discussed these x-rays with . . . Ms. 

 Mousseau[ ] and made a recommendation 

 to her based on this. 

 (Emphasis added). 

 Dr. Schwartz offered the following testimony on cross-examination: 

 Plaintiff’s Counsel: You did not discuss with Ms. Mousseau 

 on June 5, 2001, the option of fusing 

 one or more of her vertebrae to fix her 

 problem, correct? 

 Dr. Schwartz: Given Ms. Mousseau’s complaints – 

 

 Plaintiff’s Counsel: That’s a yes or no? 

 Dr. Schwartz: I’m trying to answer your question. 

 Given Ms. Mousseau’s complaints of mild 

 low back pain and predominant left leg 

 pain, I didn’t believe that a fusion operation 

 at this time was even indicated. 

 . . . 

 I believe at this time, I felt that a 

 conservative surgical approach would 

 be the most appropriate for Ms. Mousseau 

 given her symptoms, her findings and 

 her radiographic studies. 

 Plaintiff’s Counsel: You don’t know, you didn’t have a flexion/ 

 extension films prior to consenting Ms. 

 Mousseau for the laminectomy and 

 foraminotomy, did you? 

 Dr. Schwartz: Ms. Mousseau had mild low back pain. 

 I saw no reason to get flexion/extension 

 films. 

 . . . 

 I think one can get an x-ray anytime, 

 (continued . . .) 
#24109, #24125 

-24- 

testimony as to percentage rate for various types of complications that could 

potentially arise during or as a result of the procedures he proposed. He also 

testified to the practice that he and others would follow during the various stages of 

the procedure that he performed on Mousseau and what he would do if 

complications arose. Most significantly, however, when Dr. Schwartz testified in 

regard to the probability that vertebral instability might develop as a result of the 

June 6, 2001 surgery by stating that “the chances of that happening are so low that 

there’s really no indication to do a fusion up front,” he directly contradicted the 

expert testimony of Dr. Teuber. One of the ways Dr. Teuber testified that Dr. 

Schwartz had failed to meet the applicable standard of care was that he should 

have recognized that the laminectomy performed at the L3-L4 vertebral segment 

actually weakened the spine in that location resulting in a “clinically significant 

retrolisthesis,” see supra n6, at that segment necessitating the fusion surgery at 

that segment performed on November 1, 2001. See supra ¶3. 

[¶28.] While in the view of the trial court, Dr. Schwartz’s testimony 

constituted that of a percipient “fact” witness, conveying only his observations of his 

examinations of and surgeries performed on Mousseau and refraining from 

________________________ 

(. . . continued) 

 but as a clinician, I think it’s 

 incumbent to use judgment and you 

 get an x-ray if you feel that the clinical 

 signs and symptoms warrant getting 

 an x-ray or whatever other study the 

 clinician wants to order. 

 (Emphasis added). 
#24109, #24125 

-25- 

testifying to an applicable standard of care, it is apparent that his testimony 

amounted to an expert medical opinion offered by a witness with highly specialized 

knowledge in a field beyond the scope of a layman’s independent comprehension. 

See State v. Fool Bull, 2008 SD 11, ¶29, 745 NW2d 380, 389 (concluding that an 

emergency room physician called by the State as a percipient observer in regard to 

her examination of a rape victim offered testimony that amounted to expert 

opinion); see also Orth v. Stoebner & Permann Const., Inc., 2006 SD 99, ¶44, 724 

NW2d 586, 596 (reiterating in a case where we found that a physician stated with a 

satisfactory degree of medical probability that a work-related injury and 

degenerative condition respectively accounted for fifty percent each for the 

plaintiff’s condition that “[t]here are no ‘magic words’ needed to express an expert’s 

degree of medical certainty, and the test is only whether the expert’s words 

demonstrate that he or she was expressing an expert medical opinion”) (quoting 

Stormo v. Strong, 469 NW2d 816, 824 (SD 1991)); Ward v. Epting, 351 SE2d 867, 

872 (SC 1986) (holding that the defendant physician, who took the witness stand as 

a mere party and not an expert, did effectively offer expert testimony based in part 

on the fact that she testified to routine surgical and recovery room procedures in 

addition to her own actions and to a reasonable degree of medical certainty as to 

how the subject event in the case at bar occurred). 

[¶29.] Moreover, while Dr. Schwartz did not expressly offer testimony as to 

his opinion on the applicable standard of care, we conclude that he in effect did so. 

From Dr. Schwartz’s testimony as to the practice that he and others would follow 

during the various stages of the procedures that he performed on Mousseau, we can 
#24109, #24125 

-26- 

infer that he was testifying to an applicable standard of care. To conclude 

otherwise would be to surmise that Dr. Schwartz disavows the application of a 

standard of care or at best is ambivalent about such a standard. See McCurdy v. 

Hatfield, 183 P2d 269, 271 (Cal 1947) (holding that while the defendant physician 

did not expressly testify to an applicable standard of care, his testimony did amount 

to what constituted proper practice, and thus, could reasonably be inferred to 

constitute testimony as to a standard of care ordinarily applied by physicians under 

like circumstances); Huffman v. Lindquist (Huffman I), 213 P2d 106, 110 

(CalDistCtApp 1950), vacated on other grounds by Huffman v. Lindquist (Huffman 

II), 234 P2d 34 (Cal 1951); Dickow v. Cookinham, 266 P2d 63, 65-66 (CalDistCtApp 

1954); see also Huffman II, 234 P2d at 41 (reasoning that where a defendant 

physician, who does not expressly testify to an applicable standard of care, but does 

in effect testify to a proper practice, it is presumed that the practice is based on the 

applicable standard of care and if the defendant physician does not therewith 

conform, a prima facie case of negligence is therein established). 

[¶30.] Still, Dr. Schwartz argues that, in any case, the trial court properly 

excluded the Stipulation evincing his licensure probation and the conditions 

thereon. He cites Boomsma v. Dakota, Minnesota & Eastern R.R. Corp., 2002 SD 

106, 651 NW2d 238, overruled on other grounds by State v. Martin, 2004 SD 82, 683 

NW2d 399; Sommers v. Friedman, 493 NW2d 393 (WisCtApp 1992); Soto v. Lapeer 

County, 426 NW2d 409 (MichCtApp 1988); and King v. Ahrens, 16 F3d 265 (8thCir 

1994) for the proposition that under the circumstances of the instant case, evidence 
#24109, #24125 

-27- 

pertaining to the status of professional licensure is not a proper subject of crossexamination. However, these cases are distinguishable from the case on appeal. 

[¶31.] In Boomsma, the trial court refused to admit evidence that plaintiff’s 

expert had voluntarily relinquished his optometry license and defendant appealed. 

2002 SD 106, ¶48, 651 NW2d at 248. Unlike the instant case where Dr. Schwartz 

acknowledged by way of the Stipulation that his licensure probation was 

attributable to malpractice, in Boomsma, the plaintiff’s expert was merely the 

subject of allegations of misconduct. This case lends no support to Dr. Schwartz’s 

position. Our affirmance of the trial court in Boomsma was based on the court’s 

reasoning that in lieu of any evidence of misconduct, allowing testimony “which 

amounted to no more than mere allegations of misconduct” “would be more 

prejudicial than probative.” Id. ¶51 

[¶32.] In Sommers, the plaintiff sought to cross-examine the defendant 

physician about the fact that she had failed two voluntary internal medicine 

specialty board certification exams three years and four years respectively prior to 

examining the decedent. 493 NW2d at 397. The plaintiff asserted that the exam 

failures were relevant to the defendant’s overall competency and that they were the 

proper subject of impeachment because she alleged the defendant offered expert 

opinions on the subject matter underlying the exams. In refusing the plaintiff’s 

request, the trial court reasoned that the defendant offered only very limited 

opinion testimony and that the exam failures were of limited relevance to the 

manner in which she examined the decedent. Id. at 397-98. Contrasted with 

Sommers, in the instant case, Dr. Schwartz offered a voluminous amount of medical 
#24109, #24125 

-28- 

 

opinion testimony in regard to the diagnosis and treatment of Mousseau. And, the 

licensure probation and conditions set out in the Stipulation were relevant to the 

level of credibility that the jury might assign to Dr. Schwartz’s seemingly competent 

testimony. 

[¶33.] In Soto, the trial court ruled that the plaintiff could not question the 

defendant physician about a consent order whereby he agreed to a probationary 

period during which his license was restricted. 426 NW2d at 411-12. In affirming 

the trial court, the appellate court noted that the consent order arose out of an 

administrative complaint filed against the defendant concerning a specific 

procedure performed on a particular patient, that it did not arise out of the case at 

bar, and that it did not involve any procedure performed by the defendant in the 

case at bar. Id. at 412. The nature of the Stipulation in the instant case is 

dissimilar in that although it may have arisen out of Dr. Schwartz’s malpractice in 

regard to other patients, the procedures giving rise to his stipulated conditional 

licensure were neurosurgical spine procedures. 

[¶34.] Finally in King, that trial court refused to allow evidence that the 

defendant physician’s medical license had been suspended for thirty days some 

eight years prior to trial. 16 F3d at 268. King is inapposite to Dr. Schwartz’s fiveyear conditional licensure probation that began twenty-six months prior to trial. 

With reference to the balancing test applied under Rule 403,16 the Eighth Circuit 

Court of Appeals stated: 

 (continued . . .) 

16. Rule 403 codified under SDCL 19-12-3 provides as follows: 

 
#24109, #24125 

-29- 

________________________ 

(. . . continued) 

The danger of unfair prejudice is substantial and 

immediately apparent in this case for several reasons. 

The license suspension by its very nature reflects badly 

on [the defendant’s] professional conduct, although this 

alone does not amount to unfair prejudice. Additional 

factors to weigh include the remoteness of the license 

suspension to the incident at issue, the suspension having 

 occurred approximately eight years before [the defendant’s] 

examination of Mr. King. The license suspension did not 

arise out of the same or similar circumstances as the 

incident at issue. Further, the veracity of [the defendant] 

and his medical chart were subject to thorough impeachment 

at trial by inconsistencies readily apparent in his testimony, 

the medical chart, and his deposition, and the past license 

suspension would have shed little new light on [the 

defendant’s] character for truthfulness. Thus, in spite 

of the peripheral relevance of the suspension, there was 

great danger that the jury might improperly infer from 

the fact of a distant and unrelated past license suspension 

that [the defendant’s] professional judgment and conduct 

in the instant case must have been substandard solely 

because his license had been suspended on a prior occasion. 

Given the danger that this evidence might influence a jury 

to decide the case on an improper basis and the great 

deference with which we review this evidentiary ruling, 

we cannot say that the district court abused its discretion 

in determining that the danger of prejudice outweighed 

the probative value of the license suspension. 

Id. at 269-70 (emphasis in original). 

[¶35.] In the instant case, both Dr. Schwartz and Mousseau thoroughly 

briefed the issue of whether to allow reference to the Stipulation, and fully argued 

factors for and against admission during a pretrial motions hearing. The trial court 

 Although relevant, evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.
#24109, #24125 

-30- 

appears to have ruled in favor of exclusion without balancing the probative value 

against the danger of unfair prejudice or providing any justification on the record. 

[¶36.] Our review of the record reveals no basis similar to that cited by the 

court in King, 16 F3d at 269-70, as to why the Stipulation should not be admitted 

into evidence or available for Mousseau to use during cross-examination of Dr. 

Schwartz. The Stipulation was relevant to the degree of knowledge and skill in the 

field of neurosurgery possessed by Dr. Schwartz during the time proximate with the 

procedures he performed on Mousseau. Accordingly, it was relevant to his 

credibility as a witness who effectively gave expert testimony in the field of 

neurosurgery. While evidence of, or inquiry into, Dr. Schwartz’s licensure probation 

and conditions thereon would no doubt have been prejudicial to him, the probative 

value of that evidence outweighs the prejudicial effect upon Dr. Schwartz in the 

context of his having had the chance to offer highly technical, effectively expert 

testimony to the jury without any challenge to the credibility of his supposedly 

competent testimony. 

[¶37.] Alternatively, Dr. Schwartz argues that to admit the Stipulation would 

violate SDCL 19-14-10 (Rule 608(b)), because he argues the probationary status of 

his license is not probative of his reputation for truthfulness. Rule 608(b), codified 

under SDCL 19-14-10 provides: 

Specific instances of the conduct of a witness, for the 

purpose of attacking or supporting his credibility, other 

than conviction of crime as provided in §§ 19-14-12 to 

19-14-16, inclusive, may not be proved by extrinsic evidence. 

They may, however, in the discretion of the court, if probative 

of truthfulness or untruthfulness, be inquired into on crossexamination of the witness: 
#24109, #24125 

-31- 

 

(1) Concerning his character for truthfulness or 

 untruthfulness; or 

(2) Concerning the character for truthfulness or 

 untruthfulness of another witness as to which 

 character the witness being cross-examined has 

 testified. 

[¶38.] We addressed this precise issue when presented to the Court for 

review by Dr. Schwartz in Kostel, 2008 SD 85, ¶13, __ NW2d __, __. Thus we need 

not revisit our analysis of the proper scope of application for Rule 608(b), other than 

to reiterate our holding: 

[W]hile inquiry into an expert’s alleged mistakes or 

 connection to unrelated adverse claims do not impact on 

his credibility or character for truthfulness, evidence 

contrary to the representation of the witness’s expertise 

in the field for which he offers his opinion at bar is relevant 

to his competency, does impact credibility and therefore 

is appropriate inquiry. 

Id. ¶14 (emphasis original) (citations omitted).17 Furthermore, in Kostel, we 

restated our prior recognition that when a witness places his credibility at issue 

17. As we did in Kostel, we again note Dr. Schwartz’s citation to Hathcock v. 

Wood, 815 So2d 502 (Ala 2001) in support of his position that inquiry into the 

Stipulation and his conditional licensure probation violates Rule 608(b). See 

2008 SD 85, ¶14 n9, __ NW2d __, __ n9. In Kostel, we explained: 

In Hathcock, a medical malpractice case, the Alabama Supreme 

Court deferred to the trial court’s conclusion that crossexamination of plaintiff’s expert about events that led to his 

medical license being placed on probationary status by the local 

licensing authority was more prejudicial than probative. 815 So2d 

at 507. However, affirming the trial court, the Alabama court 

opined that “evidence bearing on a witness’s veracity is forbidden 

under Rule 608(b).” Id. at 508. We are not persuaded by this 

interpretation of Alabama’s rule, which is identical to South 

Dakota’s, for this is precisely the kind of testimonial evidence that 

a party may elicit on cross-examination pursuant to the express 

language in the rule. 
#24109, #24125 

-32- 

 

through favorable direct testimony, he “‘opens the door’” to impeachment on crossexamination pursuant to SDCL 19-14-8 (Rule 607),18 even in instances when 

evidence is not otherwise admissible under Rule 608(b). Id. ¶20 (citing Litschewski, 

1999 SD 30, ¶¶22, 23, 590 NW2d at 903 (quoting State v. Byrum, 399 NW2d 334, 

337-38 (SD 1987)) (citations omitted). 

[¶39.] Finally, Dr. Schwartz argues that inclusion of the Stipulation would 

violate the provisions of SDCL 36-4-31.5,19 which establishes as confidential, 

witness testimony and documentary evidence in license cancellation, revocation, 

suspension, or limitation proceedings conducted by the Board. However, our review 

of the Stipulation reveals that it does not include any information from the Board 

proceeding itself, which is the focus of the confidentiality statute. Therefore, the 

18. Rule 607 codified under SDCL 19-14-8 provides: 

The credibility of a witness may be attacked by any party, 

including the party calling him. 

19. SDCL 36-4-31.5 provides: 

 Testimony of a witness or documentary evidence of any kind on 

cancellation, revocation, suspension, or limitation proceedings are 

not subject to discovery or disclosure under chapter 15-6 or any 

other provision of law, and are not admissible as evidence in any 

action of any kind in any court or arbitration forum, except as 

hereinafter provided. No person in attendance at any hearing of 

the Board of Medical and Osteopathic Examiners considering 

cancellation, revocation, suspension, or limitation of a license 

issued by it may be required to testify as to what transpired at 

such meeting. The prohibition relating to discovery of evidence 

does not apply to deny a physician access to or use of information 

upon which a decision regarding his staff privileges was based. 

The prohibition relating to discovery of evidence does not apply to 

any person or his counsel in the defense of an action against his 

access to the materials covered under this section.
#24109, #24125 

-33- 

provisions of SDCL 36-4-31.5 are not invoked by inclusion of the terms and 

conditions of Dr. Schwartz’s probation as provided in the Stipulation. Moreover, 

since Dr. Schwartz consented that the terms of the Stipulation constituted a public 

record, see supra ¶7, his claim that SDCL 36-4-31.5 precludes admission of the 

Stipulation is without merit. 

[¶40.] Dr. Schwartz established his neurosurgery practice in June 2000, 

immediately after completing his residency. One year later, he performed the first 

of two procedures on Mousseau. Mousseau alleges that during the first procedure 

on June 6, 2001, Dr. Schwartz failed to meet the applicable standard of care by 

leaving untreated, areas of her spine that needed treatment, while at the same time 

weakening others, thereby necessitating spinal fusion surgery on November 1, 

2001. She further alleges that the accumulation of scar tissue following the first 

surgery led to Dr. Schwartz again failing to meet the applicable standard of care by 

damaging nerve roots while conducting the second surgery, resulting in permanent 

back pain and leg weakness. During the time proximate with Mousseau’s surgery, 

Dr. Schwartz conducted procedures on other patients from which claims of 

malpractice were raised. Ultimately, Dr. Schwartz entered into the Stipulation 

with the Board whereby his license was placed on probationary status with 

numerous conditions precedent to his full reinstatement, including retraining in his 

chosen field and group practice for five years thereafter. The reason given by the 

Board for the sanctions was “Malpractice.” 

[¶41.] The Stipulation was evidence of a deficiency in Dr. Schwartz’s 

knowledge and skill in the field of neurosurgery that related directly to his ability to 
#24109, #24125 

-34- 

meet the applicable standard of care by possessing and using the skill and care 

ordinarily possessed and used by neurosurgeons under like circumstances. In 

addition, the Stipulation was relevant to challenge the credibility of Dr. Schwartz’s 

highly technical, effectively expert testimony regarding his diagnostic findings and 

conclusions and the manner in which he conducted the surgery on Mousseau. 

Finally, as a public record, there was no basis in this case for the exclusion of the 

Stipulation. Accordingly, we conclude that the trial court abused its discretion by 

excluding the Stipulation. Because the terms and conditions therein went to vital 

matters in the case – the level of knowledge and skill possessed by Dr. Schwartz 

and the credibility of his testimony – exclusion of the Stipulation in all probability 

affected the outcome of the jury’s verdict and thereby constitutes prejudicial error. 

See Carpenter v. City of Belle Fourche, 2000 SD 55, ¶23, 609 NW2d 751, 761; 

Kjerstad, 517 NW2d at 427. 

[¶42.] Reverse and remand for further proceedings consistent with the 

foregoing opinion. 

[¶43.] ZINTER and MEIERHENRY, Justices, and WILBUR and HOFFMAN, 

Circuit Judges, concur. 

[¶44.] WILBUR, Circuit Judge, sitting for SABERS, Justice, disqualified. 

[¶45.] HOFFMAN, Circuit Judge, sitting for KONENKAMP, Justice, 

disqualified.