SHAMBURGER v. BEHRENS

MORGAN, Justice.

Plaintiffs Elston and Signe Shamburger (hereinafter Shamburgers collectively or Elston or Signe individually) appeal from a jury verdict rendered in favor of defendant Dr. Clayton Behrens (Behrens) in a medical malpractice action. Shamburgers also appeal from a summary judgment granted defendant Rapid City Regional Hospital, Inc. (Hospital). We affirm in part, reverse in part, and remand for new trial.

In March of 1980, Elston was hospitalized for diverticulitis.1 Since this was Elston's third bout with diverticulitis, it was determined that colon surgery was necessary. Behrens performed surgery on Elston on April 24, 1980. Following surgery, Elston's condition continued to deteriorate. Between May 3 and May 5, 1980, Behrens and other physicians at Hospital were unable to pinpoint the cause of Elston's deterioration. On May 6, the doctors concluded that Elston had developed infectious abscesses at the point where his colon had been resected. Further surgery became necessary. On that same day, prior to surgery, Behrens was dismissed by Signe as Elston's surgeon. Signe alleges that she dismissed Behrens because she smelled alcohol on his breath.

Shamburgers later instituted this suit alleging, inter alia, negligent preoperative care, failure to adequately inform and disclose, negligent surgery and negligent postoperative care. Prior to trial, the trial court granted summary judgment in favor of Hospital. As noted above, following a jury trial, a verdict was rendered in favor of Behrens on all issues.

Initially, Shamburgers claim the trial court erred in refusing to allow them to place testimony before the jury concerning alcohol on Behrens' breath. Shamburgers contend that the testimony of three witnesses that they smelled alcohol on Behrens' breath was admissible on the issue of Behrens' negligence.

During discovery depositions, Shamburgers elicited testimony from three individuals that on two separate occasions Behrens had alcohol on his breath. A nurse testified that she smelled alcohol on Behrens' breath on May 3. Signe and another physician testified that they detected the odor of alcohol on Behrens' breath on May 6, just prior to Signe's discharge of Behrens. No other testimony was elicited concerning possible alcohol consumption by Behrens. Elston did not detect alcohol on Behrens' breath at any time.

Prior to trial, Behrens filed a motion in limine urging the trial court to issue a protective order barring any mention of alcohol on Behrens' breath during trial. In ruling on the motion, the trial court granted a protective order barring such testimony; finding that any allegation that alcohol consumption affected Behrens' performance was not supported by the facts and that in any event any marginal relevance of the evidence was substantially outweighed by its prejudicial effect.

The rulings of the trial court are presumptively correct; we have no duty to seek reasons to reverse. The party alleging error must show prejudicial error affirmatively from the record. See Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976). In making the ruling concerning the alcohol odor, the trial court relied upon SDCL 19-12-3.2 In reviewing this order, we must determine whether the trial court abused its discretion. State v. Holland, 346 N.W.2d 302 (S.D.1984).

The trial court may exclude evidence under SDCL 19-12-3 if the evidence, as admitted, would provide the jury with an undue tendency to decide the case on an improper basis. See State v. Dunton, 396 A.2d 1001 (Me.1979) (construing Fed.R. Evid. 403, the statute upon which SDCL 19-12-3 is patterned).

The trial court found that there was no evidence that alcohol had any effect on diagnosis, treatment, preoperative or postoperative care. The Supreme Court of Montana considered alcohol use in a situation similar to this. Mydlarz v. Palmer/Duncan Const. Co., 682 P.2d 695 (Mont.1984). In Mydlarz, the court stated:

682 P.2d at 704. We agree with the Montana Court that the jury could have been misled concerning alcohol use. The trial court's refusal to admit this evidence did not hamper Shamburgers' efforts to show Behrens acted negligently. Therefore, we conclude the trial court did not abuse its discretion in granting Behrens' motion in limine.

Additionally, Shamburgers claim error in that they were not allowed to discover hospital records concerning Behrens' subsequent hospitalization for alcoholism treatment. Several months after Elston's surgery, Behrens was hospitalized for alcohol treatment. Shamburgers moved to produce the records of this treatment. The trial court denied this motion on two theories: (1) that the records were protected by the patient/physician privilege of SDCL 19-13-73 and (2) that the prejudice caused by exposing the treatment records outweighed their probative value.

First, we note that our discussion concerning the motion in limine could dispense with this issue also. See Mydlarz, supra. We believe, however, that the treatment records are also protected by the SDCL 19-13-7 privilege.

Shamburgers claim that the exception in SDCL 19-13-114 applies to Behrens' records. We disagree. "[SDCL 19-13-11] creates an exception to the [SDCL 19-13-7] privilege if the person for whom such privilege exists asserts a particular physical, mental, or emotional condition as an element of a claim or defense." Betty J.B. v. Division of Social Services, 460 A.2d 528, 531 (Del.1983) (emphasis added). Behrens did not assert his physical condition as an element of his defense. He simply denied he was negligent in the care of Elston. It is Shamburgers who attempt to place his physical condition into issue. The exception of SDCL 19-13-11 does not apply, and Behrens' treatment records are privileged under SDCL 19-13-7, and not discoverable.

Shamburgers also contend that the trial court erred in the giving of jury instruction number 7.5 First, they claim that the "good faith error of judgment" language contained in the instruction confuses the jury by suggesting that no liability will attach to a physician if he acts in "good faith." In this regard, Shamburgers claim the instruction unduly burdens the plaintiff in a medical malpractice suit by requiring him to show the doctor acted in "bad faith."

In examining claims of incorrect jury instructions, the instructions must be considered as a whole to determine if error was committed. Wheeldon v. Madison, 374 N.W.2d 367 (S.D.1985). It is the burden of the appellant to show the instruction was prejudicial. Wheeldon, supra.

It appears that the basis for the "good faith error of judgment" language in this instruction rests in our decision, Block v. McVay, 80 S.D. 469, 126 N.W.2d 808 (1964). In Block, we stated:

80 S.D. at 475-76, 126 N.W.2d at 811 quoting 41 Am.Jur. Physicians and Surgeons § 103. As recently as 1978, we upheld use of a similar instruction. Fjerstad v. Knutson, 271 N.W.2d 8 (S.D.1978).

Several courts have chosen to reexamine the use of instructions of this type. Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984); Ellis v. Springfield Women's Clinic, 67 Or.App. 359, 678 P.2d 268 (1984) rev. denied 297 Or. 228, 683 P.2d 91 (1984); Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294 (1983); Somer v. Johnson, 704 F.2d 1473 (11th Cir.1983); Veliz v. American Hosp., Inc., 414 So.2d 226 (Fla.App.1982); Teh Len Chu v. Fairfax Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820 (1982). These courts have held that the use of such terms as "honest mistake," "bona fide error in judgment," or "good faith error in judgment" have no place in a medical malpractice instruction.

Logan, 465 A.2d at 303.

We agree with the reasoning expressed in these cases and hold that the use of such terms as "good faith error in judgment" unduly confuses the issues in a negligence action. Hereafter, such instructions should not be given. Any language to the contrary in prior decisions is expressly overruled. We find the giving of instruction number 7 prejudicial to Shamburgers, and remand for new trial.

Secondly, Shamburgers claim that the second portion of the instruction dealing with the jury's consideration of an "unfortunate or bad condition" constituted prejudicial error. In this regard, Shamburgers rely upon Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521 (1945). Shamburgers contend instructing the jury that a "bad condition" alone does not prove negligence essentially instructs the jury to disregard Shamburgers' evidence of causation.

In Isaak, supra, the plaintiff suffered an injury from a diathermy treatment. The plaintiff was burned from this procedure. This court analogized the case to those of burns resulting from X-ray treatments. The court noted that such cases are often subject to the doctrine of res ipsa loquitur.

In Isaak, we stated: "The fact, however, that plaintiff was seriously burned is some evidence in itself and may be considered with other facts and circumstances in determining whether or not the injury resulted from negligence." 70 S.D. at 533, 19 N.W.2d at 522. It is this language which Shamburgers claim must be included in the "unfortunate condition" portion of the instruction. We disagree. As noted above, instructions must be considered as a whole to determine if error was committed. Wheeldon, supra. The factual situation in Isaak, supra, may have required the additional language. The instruction here did not. Elston's deterioration was not the type of injury such as an X-ray or diathermy burn which in and of itself could be evidence of negligence. As we noted in Van Zee v. Sioux Valley Hospital, 315 N.W.2d 489, 492 (S.D.1982):

Quoting Prosser, Law of Torts, pp. 226-228 (4th Ed.1971). See also Scardina v. Colletti, 63 Ill.App.2d 481, 211 N.E.2d 762 (1965). We therefore hold that under these facts the trial court did not err by including the "unfortunate condition" language in instruction number 7.

Shamburgers next contend that the trial court erred in allowing Behrens' counsel to cross-examine him during Shamburgers' case-in-chief. As part of Shamburgers' case, portions of Behrens' deposition were read to the jury. Immediately following this, Behrens' counsel was allowed to present the live testimony of Behrens by way of "cross-examination." During this cross-examination, Behrens' counsel made extensive use of leading questions. The trial court allowed cross-examination under the discretionary authority conferred on it by SDCL 15-6-43(b).6

Normally, the scope and manner of cross-examination are matters for the trial court's discretion. State v. Dace, 333 N.W.2d 812 (S.D.1983); State v. Richards, 84 S.D. 376, 378, 171 N.W.2d 808 (1969). The Supreme Court of Iowa has addressed the question of the scope of Rule 43(b). Matter of Estate of Herm, 284 N.W.2d 191 (Iowa 1979). In Herm, the plaintiff called the defendant as an adverse witness, and defendant's counsel then cross-examined. The Iowa Court concluded that the rule permits such cross-examination, but held that the cross-examination permitted by the rule should not include leading questions.

284 N.W.2d at 197-198.

We believe that Rule 43(b) and SDCL 19-14-18, 19-14-19, and 19-14-20 permit cross-examination by a party's own counsel when the party has been called as an adverse witness. We agree, however, with the Iowa Court's reasoning and hold that use of leading questions is not proper in the cross-examination under such circumstances. In light of our reversal and remand on the instruction issue, we need not determine whether cross-examination of Behrens by leading questions constituted prejudicial error.

Shamburgers also claim error in the granting of summary judgment for Hospital. In their claim against Hospital, Shamburgers alleged Hospital was negligent in allowing Behrens to remain on staff. Shamburgers claim Hospital knew or should have known Behrens had a drinking problem and was incompetent, which manifested itself in a problem with Elston's care.

The trial court held that the evidence, viewed in the light most favorable to Shamburgers, presented no evidence to show Hospital knew or had any reason to believe that Behrens was incompetent, and that Hospital had not breached any of its medical staff review procedures.

In South Dakota, separate liability in negligence attaches to a hospital when it has breached its own standards or those available in same or similar communities or hospitals generally. Fjerstad, supra. We note that hospital records concerning staff competency evaluations are not discoverable materials. SDCL 36-4-26.1. Shamburgers cannot obtain the records which would show whether or not the hospital considered or knew of Behrens' drinking problems when Hospital considered his staff privileges. The trial court was correct in determining that Shamburgers had presented no evidence pertaining to Hospital's alleged negligence. Mere allegations in the pleadings cannot thwart summary judgment. Boone v. Nelson's Estate, 264 N.W.2d 881 (N.D.1978). Once the motion has been made and supported, the nonmoving party has the burden of showing a genuine issue exists for trial. Olesen v. Snyder, 249 N.W.2d 266 (S.D. 1976). Trial court found, and we agree, that Shamburgers presented no evidence to support an issue for trial.

Accordingly, the judgment is affirmed in part, reversed in part, and remanded.

All the Justices concur.

HERTZ, Circuit Judge, acting as a Supreme Court Justice, not participating.