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Martinmaas v. Engelmann6/28/2000
inguish those differences, the legitimate process of law degenerates.
1. Rape is Not an Act of Professional Negligence
[ ] Can rape and sexual misconduct constitute professional negligence if committed by a physician in the course of a gynecological exam? The answer is plainly no. No court has ever held otherwise under these circumstances. Although this Court ventures to answer it, the question before us today is not whether intentional acts constitute medical "malpractice." It is true that in Bruske v. Hille, 1997 SD 108, , 567 NW2d 872, 876-77, interpreting the medical malpractice statute of limitations, we wrote, "any professional misconduct" establishes malpractice. That statute covered "malpractice, error, mistake or failure to cure, whether based upon contract or tort. ..." SDCL 15-2-14.1. We held that acts alleged as intentional, but sounding in negligence, were covered by the limitations period. Bruske 1997 SD 108, -14, 567 NW2d at 877. There, the plaintiff sought to evade the medical malpractice statute of limitations by cloaking her suit as something other than a malpractice claim. We thought the statute broad enough to encompass the substance of plaintiff's complaint in spite of her attempts to artfully draft around it.
[ ] In this case, solely an action for negligence, the majority opinion groups negligence and intentional conduct into one category: malpractice. The plaintiffs themselves disclaimed any theory of intentional conduct. They dropped their intentional tort counts, and ostensibly for insurance coverage purposes, couched their claims as negligence. Accordingly, the trial court defined malpractice for the jury as negligence. Now, the Court's opinion redefines it. With the jury's decision rendered wholly on a theory of negligence, we are not, in retrospect, at liberty to change the definition in order to uphold the verdicts.
[ ] At trial, the jury was instructed that the plaintiffs seek to recover damages "based upon their claims of professional negligence. Such negligence is commonly referred to as malpractice." (Emphasis added.) Included in the court's instructions as an essential element of proof was the requirement that the plaintiffs show the "defendant was negligent." In defining professional negligence, the court instructed:
In performing professional services for a patient, a physician has the duty to possess that degree of knowledge and skill ordinarily possessed by physicians of good standing engaged in the same line of practice in the same or similar locality.
A physician also has the duty to use that care and skill ordinarily exercised under similar circumstance by physicians in good standing engaged in the same line of practice in the same or similar locality and to be as diligent in an effort to accomplish the purpose for which the physician is employed.
A failure to perform any such duty is negligence.
In another instruction the court told the jury: "Plaintiffs allege that the defendant was negligent and deviated from the recognized standard of care by engaging in inappropriate and improper sexual contact with each plaintiff during her gynecological examination." Rape and sexual exploitation in the course of a pelvic exam are intentional acts utterly beyond the concept of failure to use due care and skill. Deborah S.S. v. Yogesh N.G., 499 NW2d 272 (WisCtApp 1993).
2. Plaintiffs' Alternative Theory Will Sustain Verdicts
[ ] The court instructed the jury on the plaintiffs' alternative basis for their negligence action: " laintiffs allege that the defendant was negligent and deviated from the recognized standard of care for gynecological examination
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