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Martinmaas v. Engelmann6/28/2000
the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, "then without weighing the evidence must decide if there is evidence which would have supported or did support a verdict[.]" Bland v. Davison County, 1997 SD 92, , 566 NW2d 452, 460 (quoting Sabag v. Continental South Dakota, 374 NW2d 349, 355 (SD 1985)). Thus, we apply the abuse of discretion standard when reviewing the trial court's ruling. Id. (citing Treib v. Kern, 513 NW2d 908, 914 (SD 1994)).
[ ] Engelmann contends that the Plaintiffs' evidence, even if believed, showed that he committed intentional acts, not negligence. He argues an act must be performed within the realm of patient care in order to constitute malpractice, and allegations of rape do not. Alternatively, he asserts that even if evidence was presented which tended to show negligence, there was no causal connection between it and a resulting injury; the injuries claimed by Plaintiffs resulted from intentional acts, not negligent ones, therefore no negligence cause of action was proven.
[ ] Plaintiffs generally agree that a physician's act must be performed under the pretext of treatment in order to constitute medical malpractice. They assert, however, that Engelmann's actions were indeed administered under the pretext of treatment. They claim South Dakota defines malpractice sufficiently broad to include both negligent and intentional acts.
[ ] In addition, Plaintiffs emphasize that they presented two separate bases of malpractice: utilization of improper positions, procedures and methods, and engaging in inappropriate and improper sexual contact. They contend that even if malpractice is not found on the latter claim, malpractice has still been shown on the former claim. They argue that regardless of whether Engelmann's acts stemmed from the use of his penis or a piece of gauze or merely an atypical position, they were nevertheless injured by his negligence.
[ ] How broadly do we define the tort of "malpractice?" Count One of each plaintiff's complaint was captioned, "Medical Malpractice." The complaints alleged that Engelmann was "negligent in failing to exercise a degree of reasonable skill and care with the degree of knowledge and expertise" ordinarily exercised by other doctors. The complaints contained further allegations that as a result of Engelmann's "negligence and malpractice," Plaintiffs suffered damages.
[ ] The jury was instructed that Plaintiffs were seeking to recover damages "based upon their claims of professional negligence. Such negligence is commonly referred to as malpractice." The standard malpractice jury instruction was given:
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 a similar locality.
A physician also has the duty to use that care and skill ordinarily exercised under similar circumstances by physicians in good standing engaged in the same line of practice in the same or similar locality and to be diligent in an effort to accomplish the purpose for which the physician is employed.
A failure to perform any such duty is negligence. South Dakota Pattern Civil Jury Instruction 105-01 (1998).
Apparently, under this definition, malpractice is synonymous with negligence. Any failure to use "that care and skill ordinarily exercised under similar circumstances" is considered negligence, and accordingly, malpractice.
[ ] In Rehm v. Lenz, 1996 SD 51, 547 NW2d 560, a plurality dec
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