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Martinmaas v. Engelmann6/28/2000
ional tort theory against Dr. Engelmann was dismissed prior to trial, the jury should not have been considering his intentional misconduct. While I find it highly deplorable that a professional would deliberately and intentionally engage in such a flagrant violation of the law and professional ethics solely to satisfy his prurient interests, neither the loathsomeness of the tortfeasor's conduct nor the sympathy towards the victims should control our decision in this case.
[ ] We have often stated that although a party is not entitled to a perfect trial, they are entitled to a "fair trial." Atkins v. Stratmeyer, 1999 SD 131, , 600 NW2d 891, 904 (Amundson, J., dissenting) (quoting McDonough Power Equipment, Inc. v. Greenwood, 464 US 548, 553, 104 SCt 845, 848, 78 LEd2d 663, 669 (1984)). A fair trial did not occur in the present case due to the injection of the alleged sexual assault, an intentional act, into the malpractice action. It is especially unfair considering the fact that the parties voluntarily dismissed the intentional tort claims prior to trial. The trial court should guard against allowing inflammatory evidence to be presented at trial which has no beneficial value other than escalating the damages award. See, e.g., Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, n3, 579 NW2d 1, 5 (stating that " he ideal in any trial is to keep improper and inflammatory questions or evidence from the jury"). The majority's decision attempts to support its conclusion that malpractice encompasses more than negligence by citing SDCL 58-5B-1, which defines medical malpractice as "coverage against the legal liability of the insured ... arising out of the death or injury of any person as a result of negligence or malpractice in rendering professional services." (emphasis added by majority opinion). As Justice Border stated in his dissent in Shernow, the intentional sexual assault by Dr. Engelmann "no more constituted the rendering of professional services than if a lawyer, angry at his client, hit her over the head with volume 24 of Corpus Juris Secondum." 610 A2d at 1286 (Borden, J., dissenting). I submit that Dr. Engelmann was denied a fair trial where the trial of an intentional act transpired under the guise of it being a negligence/malpractice case.
[ ] I would reverse and remand this case for a retrial solely on the medical malpractice claim relating to the alleged use of the "uterine massage and gauze procedure" since it certainly appears that these plaintiffs are entitled to recover under a real malpractice theory rather than the intentional tort.
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