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Martinmaas v. Engelmann6/28/2000
ision, we held that a psychologist treating clinical depression was a "practitioner of healing arts," (per Justice Sabers), but that the medical malpractice statute of limitations, SDCL 15-2-14.1, did not apply because doubt existed as to the characterization of the cause of action (per Chief Justice Miller). In that opinion Circuit Judge Dobberpuhl opined that, although "malpractice" claims against a psychologist should fall within the two-year malpractice statute of limitations, causes of action based on "intentional acts" should be outside the purview of the malpractice statute of limitations. Id. , 547 NW2d at 570-71. In response, Justice Sabers stated that "it does not make any difference [whether the act was negligent or intentional] because SDCL 15-2-14.1 provides a two-year statute of limitations for [actions] 'whether based upon contract or tort.' Even intentional acts are torts and are included." Id. , 547 NW2d at 569 (emphasis in original).
[ ] Later, in Bruske v. Hille, 1997 SD 108, 567 NW2d 872, we defined malpractice as " ny professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties... .". 1997 SD 108, , 567 NW2d at 876-77. There we affirmed the grant of summary judgment in favor of an oral-maxillofacial surgeon who was sued by a former patient. The patient's cause of action claimed intentional torts of fraud and deceit, because the physician allegedly failed to timely inform the patient of the dangers of a defective implant in her jaw. We found that rather than constituting an intentional tort, the patient's actions sounded in negligence. As a result, the action was governed by the medical malpractice statute of limitations, SDCL 15-2-14.1, and thereunder the patient's cause of action was not timely filed.
[ ] Further evidence that malpractice was intended to encompass more than negligence is found at SDCL 58-5B-1, where medical malpractice insurance is defined as "coverage against the legal liability of the insured ... arising out of the death or injury of any person as the result of negligence or malpractice in rendering professional service." (emphasis added). This statutory language seems to indicate that malpractice and negligence are two distinct legal concepts; not that malpractice is synonymous with negligence.
[ ] A review of the pertinent authority, while not directly on point, persuades us to conclude that for tort liability purposes, sexual misconduct falls within the definition of malpractice. Sexual misconduct is clearly encompassed in the concept of "professional misconduct" as malpractice is defined in Bruske. In turn, the jury instruction definition of malpractice could reasonably include professional misconduct, because such conduct would constitute a breach of "the duty to use that care and skill ordinarily exercised under similar circumstances by physicians in good standing."
[ ] "The negligence standard for doctors is no different than that for other professionals." Magbuhat v. Kovarik, 382 NW2d 43, 46 (SD 1986) (citing Lenius, 294 NW2d at 914; [Introduction] to Instruction 105-00 Malpractice, SD Pattern Civil Jury Instructions). With malpractice actions, "the issue on which the jury should be instructed ... is whether the doctor deviated from the required standard of care." Id. It is important to remember that deviation from the standard of care is not conditioned on bad faith or the physician's state of mind at the time of the alleged incident. Id. Thus, whether Engelmann's actions were intentional or negligent is irrelevant to the jury's finding of malpractice in this limited tort context.
[ ] The evidence showed that Engelmann breached his duty to
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