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Martinmaas v. Engelmann6/28/2000
Appeal from the Third Judicial Circuit, Codington County, SD Hon. Robert L. Timm, Judge
Affirmed
Argued Jan 13, 2000; Opinion Filed Jun 28, 2000
[ ] In this appeal we affirm jury verdicts in three consolidated medical malpractice actions against a former physician. We hold that for tort liability purposes, sexual misconduct falls within the definition of malpractice. We also see no error in the consolidation of these actions, in permitting access to hearing transcripts on defendant's application for re-issuance of a medical license, or in permitting comments that defendant was no longer a physician.
FACTS
[ ] This appeal involves former physician Gary Engelmann of Miller, South Dakota. On July 1, 1994, while Engelmann was conducting a pelvic examination, the patient allegedly sat up and noticed his exposed penis. She ran from the examination room and later filed rape charges, claiming Engelmann had inserted his penis inside her vagina during the examination. Soon after this incident, other alleged victims came forward with similar stories. Included among them were Audra Martinmaas, Natalie Bertsch and Nancy Froning. [hereinafter Martinmaas, Bertsch, Froning, or collectively, "Plaintiffs"]
[ ] Engelmann denied the rape allegations. He originally entered an Alford plea (whereby he pled guilty while maintaining his innocence) to the charges, but later withdrew it. After the rape charges were initiated, Engelmann voluntarily surrendered his medical license. He went to trial and was acquitted. After his acquittal, Engelmann sought to have his medical license returned. The South Dakota Board of Medical and Osteopathic Examiners refused, stating that certain gynecological examinations performed by Engelmann were performed in a manner constituting "gross incompetence" and "unprofessional conduct."
[ ] In addition to the criminal charges stemming from Engelmann's actions, Martinmaas, Bertsch, and Froning each filed separate civil suits. Finding common factual and legal issues among the cases, the trial court consolidated them for trial. The complaints originally filed alleged both negligence and intentional torts. However, the intentional tort allegations were dropped prior to trial, and the trial proceeded only on claims of professional negligence and negligent infliction of emotional distress. The negligence claims were based on two separate theories: utilization of improper positions, procedures, and methods, and engaging in improper and inappropriate sexual contact. The individual facts of each case are presented as follows:
[ ] Bertsch. Bertsch saw Engelmann for a gynecological exam on February 28, 1994. She testified that during the examination, Engelmann told her he was going to use a procedure called a uterine massage in order to obtain a sample of some suspicious discharge. This procedure allegedly involved the insertion of some gauze into her vagina along with some massaging back and forth, both externally on her lower abdomen and inside her vagina. Bertsch claimed that the procedure lasted three to four minutes, and during that time she felt an in-and-out motion, as if she were having sex. She also noticed Engelmann's breathing was irregular and his eyes were glassy. She related the experience to her husband immediately after the exam.
[ ] The next day, Bertsch told a female co-worker about the incident. The co-worker told Bertsch that she had the same experience during a gynecological exam by Engelmann. Shortly thereafter, Bertsch learned she was pregnant. Fearing Engelmann might be the father of the child, she and her husband arranged for a paternity test, which confirmed that Bertsch's h
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