# 26182

- rev & rem

- JKK
201 3 S.D. 7 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * GREG YOUNG, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KATHY YOUNG , Plaintiff and Appellant ,

v. DR. JAMES H. OURY , Defendant and Appellee

. * * * * APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA * * * * THE HONORABLE JOHN J. DELANEY Retired Circuit Judge * * * * RONALD A. PARSONS, JR. STEVEN M. JOHNSON of Johnson, Heidep riem & Abdallah, LLP Sioux Falls , South Dakota and G. VERNE GOODSELL DAVID S. BARARI of Goodsell Quinn, LLP Rapid City, South Dakota Attorneys for plaintiff and appellant

. GREGORY J. BERNARD LONNIE R. BRAUN of Thomas, Braun, Bernard & B urke, LLP Rapid City , South Dakota Attorneys for defendant and appellee

. * * * * ARGUED ON OCTOBER 2 , 2012 OPINION FILED 

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- KONENKAMP, Justice [¶ 1. ] In this medical malpractice case, the jury re turned a verdict for defendant doctor. P laintiff appeals, assert ing circuit court error in improperly admitt ing evidence, precluding relevant evidence, refus ing a jury inst ruction, and prejudicially comment ing on the case in the presence of the jury.
B ackground [¶ 2. ] While being treated for a cancerous tumor in her kidney in 2007, Kathy Young was diagnosed with a diseased aortic valve. She consulted Dr. K. John Heilman of the Heart Doctor’s Clinic in Spearfis h, South Dakota. Dr. Heilman recommended “catherization and v alve replacement surgery , ” after she completed her cancer treatment. In January 2008, Kathy had her kidney removed , and in July was declared can cer free

. She returned to Dr. Heilman to address her aortic stenosis. Dr. Heilman discussed with Kathy and her husband , Greg, the various types of valve replacement surger ies , specifically tissue versus mechanical. Ultimately, Dr. Heilman referred Kathy to Dr. James Oury in Rapid City. [¶ 3. ] On October 1, 2008, Kathy and Greg me t with Dr. Oury , a cardio thoracic surgeon. Kathy told Dr. Oury that she wanted a valve replacement procedure that would allow her to live the longest, with the lowes t chance of additional surgeries, and with the least amount of medical intervention. Dr. Ou ry discussed with Kathy a replacement option termed the Ross p rocedure. Th is procedure involves replacing an aortic valve with the patient’s own healthy pulmonary valve and using a homograft to replace the patient’s pul monary valve. T echnically more demanding, the Ross p rocedure, Dr. Oury thought , was the only#26182

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- valve replacement method that w ould offer Kathy a chance of having this be the only cardiac operation she would need

. [¶ 4. ] It would remain in dispute t o what extent Dr. Oury explained the risk s and benefits associated with the Ross p rocedure, as well as the risks and benefits of a mechanical or tissue valve replacement

. Dr. Oury did not document what information he gave Kathy about the procedure, but testified that he discussed with her the risks and benefits. Greg recalled that Dr. Oury told him and Kathy that the Ross p rocedure had the lowest mortality rate and lasted an average of 25 years wi thout a need for additional operations. Dr. Oury told them that the operation would take longer because he would be replacing two heart valves, instead of just

one. Kathy chose the R oss p rocedure . The day before surgery, Kathy signed a document ackn owle dging that the risks included “severe loss of blood, infecti on, and/or heart stoppage,” that the risk of death was 2

- 4%, and that there were risks of stroke, bleeding, abnormal rhythm, and a possible need for a pacemaker. [¶ 5. ] Kathy underwent surgery beginning at 7:30 a.m. on November 5, 2008, at Rapid City Regional Hospital. Dr. Oury made a video recording of the procedure. I n the afternoon, a nurse told Greg that Kathy was experiencing bleeding problems and that Greg would be further appri sed as matters progressed. Around 11:00 p.m., Dr. Oury told Greg that the bleeding problems were under control. But Kathy’s heart stopped. Ultimately, she was placed on life support, and the next evening , she was removed from life support and died

. [¶ 6. ] Several weeks after Kathy passed away, Dr. Oury met with Greg and his family. He told them that Kathy should not have died, that it was his fault and#26182

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- responsibility, and that he carried insurance. In January 2010, Greg brought suit on behalf of Kathy’s estate. He alleged that Dr. Oury was negligent in recommending the Ross p rocedure. In particular, he asserted that Dr. Oury failed to appropriately take into account that Kathy was 56 years old , had one kidney, and , i n the days before the sur gery, had increasing creatine levels. Greg also alleged that Dr. Oury failed to ob tain Kathy’s informed consent because he did not tell her that the Ross p rocedure is controversial, that no other hospital in South Dakota performs the procedure, that it is more commonly done on children, and that the intensive nature of the surgery could have stressed her remaining kidney. [¶ 7. ] At trial, Greg ’ s expert, Dr. Carl Adam , testified that Dr. Oury was negligent when he deemed Kathy a suitable candidate for the Ross p rocedure. Dr. Adam told the jury about the information that should have been given to K athy for her to make an informed decisi on to have the Ross procedure. Greg testified that Kathy did not in fact receive the necessary information, and t hus he argued to the jury that Dr. Oury failed to obtain Kathy’s informed consent. [¶ 8. ] Greg sought to introduce a civil complaint Dr. Oury brought against Rapid City Regional Hospital, in which he alleged wrongful termination and defamation . Greg wanted to use certain factual statements in that complaint to show that Dr. Oury was motivated to persuade Kathy into consenting to the Ross procedure

. The court excluded the evidence. Greg was also prevented from presenting any evidence to the j ury that the video made by Dr. Oury of Kathy’s procedure ha d since gone missing or been destroyed. It is undisputed that the video no longer exist s. T he court deemed the evidence inadmissible and refused to#26182

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- instruct the jury on spoliation of evidence bec ause Greg’s suit against Dr. Oury related not to any negligence during the operation, but to his decision to perform the Ross procedure and his failure to obtain Kathy ’ s informed consent. [¶ 9. ] Dr. Oury presented expert testimony from Dr. Paul Stelzer that Kathy’s age, one

- kidney status, and creatine level s were not reasons alone to disqualify her as a candidate. Dr. Oury testified that he discussed the risks o f the Ross procedure with Kathy and the fact that she had only one kidney

. In Dr. Ou ry ’ s view , Kathy’s age, creatine levels, and one

- kidney status did not make her ineligible for the procedure. Dr. Oury further testified that K athy came t o him wanting a procedure that would not require her to be on medication or have future cardiac

surge ries. A mechanical valve replacement would have require d her to be on Coumad in, and a tissue replacement had a shorter longevity. [¶ 10. ] To assist in describing to the jury the information he gave to Kathy, Dr. Oury displayed a chart that grap hically indic ated the patient survival rates of the various valve replacement surgeries. He said this chart was the “type” of information that he would give to a patient. Greg objected because the chart had not been disclosed before trial and becaus e Dr. Oury gave no foundation for the information in the chart. The court initially overruled Greg’s objection, but later deemed inadmissible the chart and related testimony. The court instructed the jury to disregard the testimony. [¶ 11. ] The jur y returned a verdict in favor of Dr. Oury. Greg moved for a new trial asserting that multiple prejudicial errors prevented him from having a fair trial. He argued that the circuit court’s erroneous admission of Dr. Oury’s chart#26182

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- and testimony allowed the jury to hear unsupported and surprise evidence directly related to the issue of informed consent. And though the court ultimately told the jury to disregard Dr. Oury’s testimony related to the chart, the court’s admonition could not “unring the bell.” Gr eg argued that the circuit court erred when it refused to admit evidence about Dr. Oury’s lawsuit against Rapid City Regional Hospital. He claimed his instruction on spoliation of evidence was relevant and proper because Dr. Oury lost or destroyed the vid eo in anticipation of this lawsuit, and, therefore, the jury could infer that the video would have revealed that Kathy was not a suitable candidate for the Ross procedure. He also sought a new trial because the court made improper interjections and extran eous comments in the presence of the jury. Greg’s motion was deemed denied by operation of law, and he appeals asserting the same issues. 1
1. Admission of Chart and Related Testimony [¶ 12. ] During Dr. Oury’s direct examination, counsel asked Dr. Oury whether he gave information to Kathy about “the expected life of various valves.” Dr. Oury answered affirmatively , and counsel displayed a chart to the jury . He asked Dr. Oury if the chart represented the “type” of information that would have b een

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. Standard of Review: A denial of a new trial is reviewed for an abuse of discretion. SDDS, Inc. v. State , 2002 S.D. 90, ¶ 17, 650 N.W.2d 1, 8. An abuse of di scretion “is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Stavig v. Stavig , 2009 S.D. 89, ¶ 13, 774 N.W.2d 454, 458 (citation omitted) . “[A] n ew trial may follow only where the violation has prejudiced the party or denied him a fair trial. Prejudicial error is error which in all probability produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assign ing it.” Kjerstad v. Ravellette Publications, Inc. , 517 N.W.2d 419, 426 (S.D. 1994)

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- provided to Kathy. Dr. Oury responded , “That is the type of information.” Counsel requested admission of the chart for “illustrative purposes.” Greg ’ s attorney objected, saying , “Your Honor, it’s a violation of the rule. It’s a summary and we

were not given any underlying data which the rule requires. ” The court denied the objection and allowed admission of the chart for illustrative purposes. Shortly thereafter, Greg’ s counsel again interjected, Your Honor, before we go any further, an additiona l objection is this document was not provided to the plaintiffs and that it’s not

– so there is no foundation for it, as well

— provided to the client is what I was saying. Court: At this point of the game I am not in a position to resolve discovery dispu tes as far as I know. And at this point in time you lay a foundation to explain the data and

— before you go any further with it. Where it came from. [¶ 13. ] Dr. Oury testified extensively about the chart. It was entitled, “Patient Survival C omparison (%)

. ” It did not depict the life expectancy of the various valves , but rather the life expectancy of the patients who underwent the various replacement procedures. Dr. Oury prepared the chart, not for trial, but as part of his research for a pa st presentation on the Ross procedure. The chart ha d four lines, each one representing a different procedure. The line for the Ross procedure was at a constant level, suggesting a lengthy life expectancy, while the other three lines drop ped off significa ntly . Thus , the Ross procedure was portrayed

a s affording a far greater survival rate for patients receiving it . There were no numbers on the chart in reference to the lines. The chart was displayed for the jury

on a sc reen , and Dr. Oury stood in front of the display directing the jury to the chart with a l aser pointer. He told the jury th at the chart would inform a patient on the#26182

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- available choices and give the patient “a comprehensive feeling for, so we use one of these valves. How long do they last.

. . . And gives you an idea of what

— how long do these valve s last. I mean, it’s a question we’ve talked about again and again over the last two days.” [¶ 14. ] After Dr. Oury finished testifying , the court released the jury for lunch and addr essed Greg’s additional objection and motion to exclude the chart and Dr. Oury’s related testimony. Greg argued that it was prejudicial to allow Dr. Oury to testify about this chart when it was not presented to Kathy, and also that Dr. Oury failed to esta blish the requisite foundation to use the chart for illustrative purposes. The court exp lained that it found “nothing of value” in the chart, that it lacked the necessary foundation , and was vague. After lunc h, when the court reconvened, it gave the jury the following instruction : Over the course of the noon hour I have had the opportunity to reconsider the question of the testimony relative to the chart concerning the various valve replacements. And I have decided that it was

— there is insufficient fou ndation for it to be admitted into evidence, and you should disregard only the testimony related to that particular chart in that portion of Dr. Oury’s testimony. Thank you. [ ¶ 15. ] Greg argues that despite the court’s admonition , “the admissio n of this evidence and the jury’s exposure to it affected [G r eg’s] substantial rights and denied him a fair trial.” Specifically, Greg asserts that prejudice resulted because, first, Dr. Oury failed to timely disclose the exhibit before trial, and , second , the court’s after

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- fact exclusion of the evidence did not remove the prejudicial impression from the jur or s ’ mind s that Kathy and Greg were show n a chart that depicted the survival rates related to the various valve procedures, when in fact no such ch art was presented to them.#26182

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- [¶ 16. ] In response, Dr. Oury asserts that Greg did not object to the exhibit

soon enough and when he did object, the grounds asserted related to foundation and not any discovery violation or timeliness. Dr. Oury furt her argues that the court cured any error when it excluded the evidence, instructed the jury to disregard the testimony, and gave the jury a final instruction at the end of the trial that it must disregard any testimony that the court struck from the recor d

. [¶ 17. ] Our review of Greg’s objections reveals that Greg objected both to the lack of foundation al support and Dr. Oury’s failure to provide the exhibit to Greg. Indeed, in response to Greg’s objection, the court indicated, “At this point o f the game I am not i n a position to res o lve discovery disputes as far as I know.” These objections were sufficient to preserve the issue for review. [¶ 18. ] There is no dispute that the chart should not ha ve been admitted into evidence and displ ayed to the jury. The question is whe ther the court’s exclusion of the evidence after the fact and admonishment to the jury sufficiently cured any resulting prejudice. As a general rule, if a court excludes improperly admitted evidence and directs the ju ry to disregard it, the error is cured. 2 If, h owever, after

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. United States v. Wells , 431 F.2d 432 , 433 (6th Cir. 1970); State v. McCarthy , 104 N.W.2d 673 , 677 (Minn. 1960) (citing Jeddeloh v. Hockenhull , 18 N.W.2d 582 (Minn 1945 )); State v. Vallejo , 965 A.2d 1181 , 1188

- 89 (N.J. 2009); Verdicchio v. Ricca , 843 A.2d 1042 , 1064 (N.J. 2004) ; Baddou v. Hall , 2008 S.D. 90, ¶ 37, 756 N.W.2d 554, 563 ; Gilliland v. Rhoads , 539 P.2d 1221 , 1225 (Wyo. 1975); see also Bruton v. United States , 391 U.S. 123, 13 4

- 3 5, 88 S. Ct. 1620, 162 6

- 2 7, 20 L. Ed. 2d 476 (1968).#26182

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- probing the record, it appears the preju dicial effect of the admission wa s not fully overcome, despite the curative instruction, a new trial is warranted. 3 [¶ 19. ] In deciding these qu estions , certain considerations are helpful : (1) to what extent did the evidence go directly to a critical issue, (2) is the evidence inherently prejudicial and of such a character that it would likely impress itself upon the minds of the jurors, (3) was t he curative instruction firm, clear, and accomplished without delay, and (4) was there any misconduct on the part of the offering party? We address these questions individually. (a

) T o what extent did the evidence go directly to a critical issue ? [¶ 20. ] On the issue of informed consent, Greg testified that Dr. Oury failed to give them sufficient information about the intensive nature of the surgery involved in performing the Ross procedure, that it was a controversial procedure, and that it

was con traindicated for Kathy, a 56 year old with one kidney. Dr. Oury testified that he discussed with Kathy the various risks and benefits associated with the Ross procedure , and though he did not make a written record of his disc ussions with the Youngs , he maintain ed that Kathy gave her informed consent. As support, Dr. Oury told the jury that the chart was the “type” of information he would have given the Youngs, leaving the impression that the Youngs saw a chart that compared the various procedures. Dr. Oury’s testimony and chart undoubtedly went directly to the question whether Dr. Oury gave Kathy enough information to make an informed decision.

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. Wells , 431 F.2d at 433; Brown v. United States , 380 F.2d 477, 479 (10th Cir. 1967); Ray v. Kapiolani Med. Specialists , 259 P.3d 569 , 585 (Hawaii 2011).#26182

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- (b

) Wa s the evidence inherently prejudicial and of such a character that it would likely impress itself upon the minds of the jurors ? [¶ 21. ] This factor deals with what the jury actually saw and heard and h ow much the jurors were expected to disregard. Dr. Oury’s testimony using the chart covers seven pages of trial transcript. The exhibit rem ained on the projector screen for those seven pages and for two transcript pages thereafter . Dr. Oury stood outside the witness stand and used a laser pointer to draw attention to various

p arts of the chart. The chart depicted the Ross procedure as the o nly procedure with an almost constant life expectancy. The remaining procedures show ed a considerable drop , but at some unknown point

. The chart lacked numerical reference points for the jury. In fact , Dr. Oury acknowledged th is and told the jury that t hey “would have to take [his] word for it that 50 percent is right about here.” He emphasized that the chart “gives you an idea of what

— how long do these valves last. I mean, it’s a question we’ve talked about again and again over the last two days.” [ ¶ 22. ] Prejudice can be found in the use of t his chart not only because there

was no foundation al support for the information the chart purported to show, but also because Dr. Oury was permitted to suggest to the jury that the Youngs were given eq uivalent information showing the survival rates of the various valve procedures and, therefore, were given information sufficient to make an informed decision. The prejudicial character of the exhibit and Dr. Oury’s testimony would have made an impression on the minds of the jur ors . Enlarged on a screen for the jury to see and without any foundational support, the chart gave the impr ession#26182

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- that the Ross procedure wa s the prime choice compared to other procedures with sharply declining survival rates

. (c

) W as the curative instruction firm, clear, and accomplished without delay? [¶ 23. ] The court ’s instruction came after Dr. Oury concluded direct and cross

e xamination and after the jury returned from its lunch recess. T h e court had its first chanc e to exclude the evidence when counsel objected before the chart was displayed to the jury

. But t he court made the rather cryptic r uling that it was not in a position to address the question . Had the court address ed the substance of counsel’s objection a t that time , it would have learned that Greg had not receive d the exhibit until the day before trial and that there was no foundational support for the chart being used for illustrative purposes. [¶ 24. ] Moreover, the court’s instruction lacked clarity. The court told the jur ors that it reconsidered the admissibility of the chart, but then asked them to “disregard only the testimony related to that particular chart in that portion of Dr. Oury’s testimony.” From this admonishment, the jury could have been left to believe it could still consider Dr. Oury’s chart

— the chart that depicted the Ross procedure as superior to the other procedures. The lack of clarity and the fact t hat the court’s instruction came after the jury heard considerable test imony about the exhibit and had the lunch hour to digest the material tends to negate the curative impact the court’s admonishment might have had. See, e.g. , State v. Winter , 477 A.2d 323 , 328 ( N.J. 1984) (court immediately struck the comment, told the ju ry to disregard it, and asked the jury to acknowledge their ability to disregard it). (d

) W as there any misconduct on the part of the offering party?#26182

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- [¶ 25. ] There wa s no evidence that the late disclosure of the chart was the product of miscond uct. [¶ 26. ] “In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury

. ” SDCL 19

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- 5 (Rule 103(c)). Here, Greg objected before the jury ever saw the chart. He also objected before Dr. Oury stood with a laser pointer and emphasized the superiority of the Ross procedure

. Dr. Oury was able to use the cha rt to enhance his pos i t i o n on the critical issue of informed consent and suggest that he g ave the Youngs the same type of information the chart depicted . There being no clear, timely, and firm curative instruction, the evidence in all probability prejudic ially influenced the jury in its decision , and the court abused its discretion when it denied Greg’s motion for a new trial. [¶ 27. ] We address the following issues be cause they may arise in the new trial

. 2. Dr. Oury’s Lawsuit a gainst Rapid City Regional Hospital [¶ 28. ] Greg argues that the court abused its discretion when it denied admission of any allegations Dr. Oury made in his lawsuit against Rapid City Regional Hospital. Greg asserted that the lawsuit was relevant because it provided evidence of a “pecuniary reason regarding why Dr. Oury might steer Kathy Young into having a surgical procedure for which she was not an appropriate candidate[.]” Dr. Oury, on the other hand, maintains that assertions in his complaint were allega tions made against him by Rapid City Regional, which allegations he refuted#26182

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- by bringing the lawsuit. He asks , “How can [his] refutation of allegedly defamat ory
statements

— that he had lo w numbers and a high error rate

— have any evidentiary value whatsoe ver?” [¶ 29. ] We presume a court’s evidentiary rulings are correct, and reverse only on a showing of an abuse of discretion. Steineke v. Delzer , 2011 S.D. 96, ¶ 7, 807 N.W.2d 629, 631. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19

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- 1 (Rule 401)

. Th ere were no allegations in Dr. Oury’s complaint that relate d to his sel ection of patients, motivation to increase volume, or failure to obtain informed consent. Dr. Oury d id not contend in his complaint that he had external pressure on him, or that he performed the Ross procedure to advance his career. These were inferences Greg dr ew from a compilation of disconnected phrases in the complaint. Moreover, none of the factual allegations made by Dr. Oury in the complaint relate d
to any conduct of the Youngs or of Dr. Oury in this action. The court did not abuse its discretion in excluding this evidence. 3. Spoliation of Evidence [¶ 30. ] Before Kathy’s surgery, she gave Dr. Oury permission to make a video recording of the procedure for teaching purposes. It is undisputed that the video recording was made, but has si nce been lost or destroyed. The court granted Dr. Oury ’s motion in limine to preclude Greg from eliciting testimony about the missing video recording

. The court also refused Greg ’ s requested jury instruction on spoliation of evidence , ruling that the ins truction was unwarranted. Greg argues#26182

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- that substantial evidence existed to support the inference that the recording “would have revealed exactly what occurred in the operating room and would have tended to prove or disprove that Kathy Young’s death was re lated to her physical and medical unsuitability for the Ross procedure.” [¶ 31. ] We review a court’s decision to deny a requested jury instruction for an abuse of discretion. Vetter v. Cam Wal Elec. Coop., Inc. , 2006 S.D. 21, ¶ 10, 711 N.W.2d 6 12, 615. When an issue is supported by the evidence and an instruction correctly setting forth the law is requested, the court should so instruct the jury. Kuper v. Lincoln

- Union Elec. Co. , 1996 S.D. 145, ¶ 32, 557 N.W.2d 748, 758 (citing Bauman v. Auch , 539 N.W.2d 320, 323 (S.D. 1995)). But a court is not required to instruct the jury on issues lacking evidentiary support. Id. [¶ 32. ] A spo liation instruction is warranted “when substantial evidence exists to support a conclusion that the evid ence was in existence, that it was in the possession or under the control of the party against whom the inference may be drawn, that the evidence would have been admissible at trial, and that the party responsible for destroying the evidence did so intenti onally and in bad faith.” State v. Engesser , 2003 S.D. 47, ¶ 46, 661 N.W.2d 739, 755. W hat is missing here is a showing that the video would have been admissible at trial. Greg identifies nothing in particular that would have been on the video to suppor t his claim that Dr. Oury negligently determined Kathy was an appropriate candi date for the Ross procedure

or that Dr. Oury failed to obt ain Kathy’s informed consent. Greg does not contend that Dr. Oury was somehow negligent in the performance of the surg ery. Greg’ s own expert witness, D r. Adams, testified that the technical aspects of the operation#26182

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- met the standard of care. Giving a spoliation instruction would have encourage d jurors to speculate that simply because the video was missing something wrong was done during the surgery . Not being warranted under the facts, the instruction was properly refused

. [¶ 33. ] Because we order a new trial, we need not address the remaining issue. [¶ 34. ] Revers ed and remand ed for a new trial

. [¶ 35. ] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.