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Jorgenson v. Vener2/6/2002
Appeal from the Circuit Court of The Third Judicial Circuit Codington County, South Dakota Hon. Robert L. Timm, Judge
Argued November 16, 2001
Reassigned 12/21/2001
[ .] David Jorgenson (Jorgenson) developed an infection in his lower right leg as a result of surgery to repair a shattered tibia and ankle. Jorgenson's attending physician, Dr. Michael Vener (Vener), did not discover the infection for approximately three months. Jorgenson sued Vener for medical malpractice under the loss of chance doctrine. The trial court granted summary judgment for Vener, Jorgenson appealed, and we reversed. Jorgenson v. Vener, 2000 SD 87, , 616 NW2d 366, 373 (Jorgenson I). Now, Jorgenson pursues damages for the loss of a ten-fifteen percent chance that he could have saved his leg from amputation. The trial court granted summary judgment for Vener again, Jorgenson appeals again, and we reverse and remand for trial.
FACTS
[ .] On August 16, 1997, while visiting relatives in Wisconsin, Jorgenson jumped from a 7-foot high ledge, landing on a cement sidewalk. The impact shattered his right tibia and ankle. Jorgenson was taken to a nearby hospital where a doctor surgically inserted pins into the fractured bone and stabilized the injury with external fixators. After five days, Jorgenson was released from the hospital and returned home to Waubay, South Dakota.
[ .] Jorgenson continued treatment with Vener, a Watertown physician specializing in orthopedic surgery. On August 26, about one month after the surgery, Vener noticed some drainage around the pins in Jorgenson's leg and placed him on a week-long course of antibiotics. An open sore of about one and a half inches had developed on Jorgenson's lower right shin.
[ .] In late October, Jorgenson began feeling feverish. He also noticed drainage and a foul odor coming from the sore on his leg. Vener prescribed another course of antibiotics.
[ .] On November 10, 1997, Vener removed the external fixator. Approximately two weeks later, Jorgenson again noticed the drainage and foul odor coming from his open sore. This time, however, he could also see a portion of bone at the surface of the wound. Jorgenson immediately contacted Vener, who again prescribed a course of oral and topical antibiotics. Vener also recommended scheduling an appointment with a doctor in Fargo to determine whether a "free flap" procedure should be done "in order to salvage the limb."
[ .] Jorgenson opted, instead, to make an appointment at the Mayo Clinic in Rochester, Minnesota. On December 4, he was told that he had two alternatives concerning the treatment of his leg: (1) an attempted bone and skin graft, which would require two years of treatment with a sixty percent chance of success; or (2) an immediate amputation of the lower portion of Jorgenson's right leg. On December 9, 1997, Jorgenson underwent a below-the-knee amputation of his right leg.
[ .] Jorgenson and his wife subsequently filed a medical malpractice action against Vener for negligently failing to diagnose a chronic infection in the bone and negligently failing to refer Jorgenson to an infectious disease specialist. Jorgenson alleged that Vener's negligence caused the loss of a ten-fifteen percent chance that Jorgenson could have saved his leg.
[ .] On June 28, 1999, the trial court granted Vener's summary judgment motion on grounds that "the loss of chance doctrine is not compatible with South Dakota Law." As indicated, this Court reversed and remanded the case, for the first time recognizing a cause of action for loss of chance in South Dakota. Jorgenson I, 2000 SD 87 at , 616 NW2d at 371. On remand
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