Mousseau v. Schwartz

#24109, #24125-rev & rem-DG

2008 SD 86

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
DIANE MOUSSEAU, Plaintiff and Appellant,

v.

STEVEN SCHWARTZ, M.D., AND,
STEVEN SCHWARTZ, M.D., P.C., d/b/a
WEST RIVER NEUROSURGERY & SPINE, Defendants and Appellees.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *
HONORABLE A. PETER FULLER
Judge

* * * *

MICHAEL C. LOOS of
Clayborne, Loos, Strommen
& Gusinisky, LLP
Rapid City, South Dakota Attorneys for plaintiff
and appellant.

LONNIE R. BRAUN
TIMOTHY L. THOMAS of
Thomas Nooney Braun
Solay & Bernard, LLP
Rapid City, South Dakota Attorneys for defendants
and appellees.

* * * *

ARGUED ON MARCH 26, 2008

OPINION FILED 08/20/08
#24109, #24125

GILBERTSON, Chief Justice

[¶1.] On November 15, 2002, Diane Mousseau (Mousseau) filed suit against

Steven B. Schwartz, M.D., and Steven B. Schwartz, M.D., P.C., d/b/a West River

Neurosurgery & Spine (collectively Dr. Schwartz) alleging medical malpractice.

The case was tried to a jury on February 12-15, 2006, in the South Dakota Seventh

Judicial Circuit. The jury entered a verdict for Dr. Schwartz and on February 21,

2006, the trial court entered judgment on the verdict. We reverse and remand.

FACTS AND PROCEDURE

[¶2.] On June 5, 2001, Mousseau consulted with Dr. Schwartz, a Rapid City,

South Dakota, neurosurgeon, about a problem she was having with pain in her back

and lower extremities. Dr. Schwartz at that time was new to the practice of

neurosurgery in Rapid City having only commenced his practice in June 2000,

shortly after he was issued his license to practice medicine. Dr. Schwartz conducted

an examination and diagnosed Mousseau with the following condition, as he

testified to at trial:

I found that there was a severe degree of spinal stenosis 1

1. Stenosis is a condition that describes a narrowing or closing of an anatomical
space. http://www.cure-back-pain.org/foraminal-stenosis.html (last visited
August 13, 2008).
Spinal stenosis refers to the condition where, due to degeneration of, or wear
and tear on a part of the spinal column, the spinal canal becomes narrower
putting pressure on the nerves in the canal thereby causing pain in the
extremities.
http://www.eorthopod.com/public/patient_education/6571/lumbar_laminectom
y.html (last visited August 13, 2008).

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at the L3-4 2 level with associated neuro foraminal stenosis, 3 that
being the tunnel the nerve roots traveled through. I found there
was a moderate to severe degree of spinal stenosis at the next
level down, which was L4-5, also, with foraminal stenosis, and I
found some foraminal stenosis on the left at the lowest segment,
the L5-S1 level and along with that a grade one
spondylolisthesis at the L5-S1 level which was a slight slippage
of the L5 vertebral body forward on the sacrum.

Based on his diagnosis, Dr. Schwartz testified that he made the following

recommendation to Mousseau:

[B]ased on the severity of her pain, the duration of her
symptoms, the severe limitation that she had with her
walking and standing and the generalized discomfort that
she had because of this, that the treatment would be
my recommendation which could consist of opening up
those compressed areas and that was the laminectomy 4
that I recommended, which was an L3-L4 and L5

2. There are three main groups of vertebrae – the cervical vertebrae atop the
spinal column, of which there are seven; the thoracic vertebrae, situated
below the cervical vertebrae, of which there are twelve; and the lumbar
vertebrae situated below the thoracic vertebrae, of which there are five. The
letters “C,” “T,” and “L” are used respectively to designate cervical, thoracic
and lumbar vertebrae. The sacrum is located at the base of the spinal
column and below it, the coccyx or “tailbone.” The five sacral and four
coccygeal vertebrae are fused and together are considered one bone.
http://www.apparelyzed.com/spine.html (last visited August 13, 2008).

3. Foraminal stenosis is a spinal condition occurring when a foramen, or
opening between vertebrae through which a nerve root exits the spinal
column, narrows. The condition can result in compression of the spinal nerve
root causing pain and discomfort in the extremities. http://www.ortho-
spine.com/content/spine/eidelson0124_2003.html (last visited August 13,
2008).

4. Laminectomy is a procedure used to treat spinal stenosis. See supra n1
regarding spinal stenosis. During the procedure, the spinous process (the
bony projection on the posterior side of the vertebra) and the lamina on each
side are removed from the affected area, thereby alleviating pressure in the
spinal canal. http://www.eorthopod.com/public/patient_education/6571/
lumbar_laminectomy.html (last visited August 13, 2008).

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laminectomy with foramintomies 5 which is opening up
the tunnels that the nerve roots ran through. . . .

Dr. Schwartz conducted the procedure on Mousseau the following day.

[¶3.] After experiencing some initial relief, Mousseau began having renewed

pain in her back and lower extremities within two months of the surgery. On

October 10, 2001, she underwent another examination. During the trial, Dr.

Schwartz testified that he diagnosed her condition at that time as follows:

The findings noted . . . that there was evidence of a
Retrolisthesis 6 of the L3 on L4 which appeared to increase
from the flexion to the extension view by several millimeters.
In addition, there was loss of the disk space height at this
level with concomitant . . . neuro foraminal stenosis. I
noted that there was a slight spondylolisthesis, grade one,
of L5 on S1 which appeared to be stable and did not move
from flexion to extension and I gave my impression and
that was instability demonstrated at the L3-4 level with
disk space collapse.

5. Foraminotomy is a procedure performed to enlarge the foramen, or opening
between vertebrae through which a nerve root exits the spinal column, in
order to alleviate pain caused by pressure on the spinal nerve root. During
the procedure, the surgeon removes the bone or tissue which obstructs the
passageway and causes pressure. This information was obtained at
http://www.spineuniverse.com/displayarticle.php/article554.html (last visited
August 13, 2008).

6. Retrolisthesis is the posterior displacement of one vertebra on the subjacent
vertebra. http://www.medcyclopaedia.com/library/topics/
volume_iii_1/r/retrolisthesis.aspx (last visited August 13, 2008).

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On November 1, 2001, Dr. Schwartz performed a second surgery on Mousseau. He

described the procedure as “an L3-4 redo, diskectomy 7 with posterior lumbar

intrabody fusion 8 at L3-L4, L3-L4, pedicle screw fusion 9 and [postero-] lateral

autograft fusion.” 10

[¶4.] Mousseau, who testified that she continued to suffer back pain as well

as pain and weakness in the lower extremities following the second surgery, filed a

malpractice suit against Dr. Schwartz on November 15, 2002. At the February 12-

15, 2006 trial, Mousseau presented evidence through the expert testimony of a

7. Diskectomy or “[d]iscectomy is the surgical removal of herniated disc material
that presses on a nerve root or the spinal cord.”
http://www.webmd.com/back-pain/discectomy-or-microdiscectomy-for-a-
herniated-disc (last visited August 13, 2008).

8. “Posterior lumbar interbody fusion surgery involves adding bone graft to an
area of the spine to set up a biological response that causes the bone to grow
between . . . vertebral elements[,] thereby stop[ping] motion at that segment.”
http://www.spine-health.com/treatment/back-surgery/posterior-lumbar-
interbody-fusion-plif-surgery (last visited August 13, 2008).

9. “[P]edicle screw[s, which are] sometimes used as an adjunct to spinal fusion
surgery, provide[ ] a means of gripping a spinal segment. The screws
themselves do not fixate the spinal segment, but act as firm anchor points
that can then be connected with a rod.” http://www.spine-
health.com/treatment/spinal-fusion/pedicle-screws-for-spine-fusion (last
visited August 13, 2008).

10. “A Postero-lateral spinal fusion is achieved through an incision in the middle of
the back by joining adjacent vertebrae with screws and rods but without
interfering with the disc. Small pieces of bone are usually taken from the back
of the pelvis, through the same skin incision, and are placed along the back and
side of the vertebrae to be fused.” http://www.spine.
com.au/spinal_fusion.htm#Postero-lateral%20Fusion: (last visited August 13,
2008). The term “autograft” is in reference to the taking of bone tissue from one
part of the patient’s body and placing it at another.
http://www.medterms.com/script/main/art.asp?articlekey=40486 (last visited
August 13, 2008).

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Rapid City neurosurgeon, Dr. Larry Teuber, that Dr. Schwartz had failed to deliver

the applicable standard of care in three ways.

[¶5.] First, Dr. Teuber testified that Dr. Schwartz failed to decompress

spinal nerves in the L5-S1 vertebral segment, thereby leaving a stenosis condition

in that location at the conclusion of the initial surgery on June 6, 2001. Second, Dr.

Teuber stated that the November 1, 2001 fusion surgery was necessary because of

the procedures that Dr. Schwartz performed on Mousseau on June 6. Dr. Teuber

testified that the laminectomy performed at the L3-L4 vertebral segment on June 6,

actually weakened the spine in that location with the predictable result that the L3

vertebra slid back in relation to the L4 vertebra resulting in a “clinically significant

retrolisthesis” at that segment. Dr. Teuber further indicated that a complete

diagnosis prior to surgery would have taken into account the need for fusion in

addition to laminectomy at the L3-L4 segment. Dr. Teuber stated that this should

have been discussed with Mousseau prior to the June 6 surgery and that she should

have been advised that if the fusion was not performed during the initial surgery, it

would have to be undertaken later.

[¶6.] Finally, Dr. Teuber testified that Dr. Schwartz breached the applicable

standard of care when he excessively retracted Mousseau’s spinal nerve roots

during the November 1, 2001 fusion surgery, thereby causing nerve damage. Dr.

Teuber stated that excessive manipulation of the nerve roots during the fusion

surgery resulted from the increased difficulty in performing the procedure due to

the growth of scar tissue around the affected nerves subsequent to the June 6

surgery. Dr. Teuber indicated that the nerve retraction injury was the avoidable

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result of not performing the L3-L4 fusion coincident with laminectomy on June 6,

2001, and thus, constituted a breach of the standard of care.

[¶7.] In a pretrial motion to exclude evidence of other malpractice claims

against Dr. Schwartz, defense counsel acknowledged that Dr. Schwartz was the

subject of “numerous claims” alleging malpractice. Two suits, filed by Bobbi Gay

and Sharon Sowards, 11 were specifically addressed in Mousseau’s response to

defense counsel’s pretrial motion and at a pretrial motions hearing. 12 Subsequent

to the initiation of Mousseau’s suit against Dr. Schwartz, the South Dakota State

Board of Medical and Osteopathic Examiners (the “Board”) brought disciplinary

proceedings against him to address allegations of malpractice. On December 17,

2003, three and one half years after Dr. Schwartz commenced his practice and two

and one half years after his first surgery on Mousseau, the Board entered its

“Stipulation On Agreed Disposition And Order Of Probation” (the Stipulation) in

regard to the licensure of Dr. Schwartz. Therein, his license was placed on

probationary status. As a condition of the probation, Dr. Schwartz was required to

complete one year of “advanced clinical training” in neurosurgery and a minimum of

three months in neuroradiology. His practice of medicine was restricted to only

11. Pretrial documents indicate that Dr. Schwartz performed vertebral fusion
surgery at the incorrect level on Bobbi Gay and removed a healthy vertebra
instead of the intended adjacent fractured vertebra from Sharon Sowards.

12. “By Dr. Schwartz’s own estimate, there have been over thirty suits alleging
medical malpractice filed against him. However, some of those have been
dismissed, three others have been tried to defense verdicts, and at least nine
remain to be tried.” Kostel v. Schwartz, 2008 SD 85, ¶21 n15, __ NW2d __, __
n15.

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that required to fulfill his training requirement. Further conditions of his probation

provided that for a period of five years, following the successful completion of his

training, Dr. Schwartz was prohibited from solo practice, thereby limiting himself to

a neurological group practice setting. The Stipulation also stated:

This Agreement for the disposition of the above entitled
contested case is a mater of public record and the obligations
of the Board with respect thereto shall be governed by
the laws of South Dakota and current Board policy.

(Emphasis added). Moreover, the Stipulation provided that “the Board will report

its disciplinary action to the National Practitioner Data Bank, the Healthcare

Integrity and Protection Data Bank, and the Federation of State Medical Boards.”

The Board therein stated that the reason given for Dr. Schwartz’s license probation

was “Malpractice.”

[¶8.] Prior to trial, Dr. Schwartz filed a motion to exclude the Stipulation

evincing his licensure probation and the conditions thereon. Mousseau sought to

admit the Stipulation as evidence that Dr. Schwartz lacked the necessary

knowledge, skill and training to provide the applicable standard of care. Moreover,

Mousseau sought to use the Stipulation to impeach Dr. Schwartz’s testimony. The

trial court granted Dr. Schwartz’s motion and excluded the Stipulation.

[¶9.] The jury returned a verdict for Dr. Schwartz and Mousseau raises the

following issue on appeal:

Whether the trial court abused its discretion by excluding
the Board’s order of probation and agreed stipulation,
including sanctions and conditions imposed therein.

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STANDARD OF REVIEW

[¶10.] “The trial court’s evidentiary rulings are presumed correct and will not

be overturned absent a clear abuse of discretion. ‘An abuse of discretion refers to a

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.’” Kaiser v. Univ. Physicians Clinic, 2006 SD 95, ¶29, 724 NW2d 186,

194 (internal citations omitted).

ANALYSIS AND DECISION

[¶11.] Whether the trial court abused its discretion by
excluding the Board’s order of probation and agreed
stipulation, including sanctions and conditions imposed
therein.

[¶12.] Mousseau asserts that the trial court’s decision to exclude the

Stipulation and evidence about the status of Dr. Schwartz’s licensure and

conditions placed thereon constituted prejudicial error. Mousseau argues that, had

she been able to use the Stipulation in her case-in-chief or to cross-examine Dr.

Schwartz, the outcome of the trial would have likely been different. See Kjerstad v.

Ravellette Publications, Inc., 517 NW2d 419, 427 (SD 1994) (opining that the

prejudicial impact of evidentiary error is amplified when the evidence in question

goes to the “vital issue” in a case). We will address the bases for Mousseau’s

assertion of error separately.

Admissibility of the Stipulation as Evidence of the Degree of Knowledge and Skill
Possessed by Dr. Schwartz

[¶13.] The trial court delivered Instruction No. 6 to the jury as follows:

In performing professional services for a patient, a
neurosurgeon has the duty to possess that degree of
knowledge and skill ordinarily possessed by neurosurgeons

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of good standing engaged in the same field of specialization
in the United States.

A neurosurgeon also has the duty to use that care and skill
ordinarily exercised under similar circumstances by
neurosurgeons in good standing engaged in the same field
of specialization in the United States and to be diligent
in an effort to accomplish the purpose for which the
neurosurgeon is employed.

A failure to perform any such duty is negligence.

(Emphasis added). Mousseau contends that this instruction and our settled case

law establishes two separate duties for the practitioner engaged in the performance

of professional services – a duty to possess the degree of knowledge and skill

ordinarily possessed by practitioners in the profession and a duty to use that

knowledge and skill in the manner ordinarily used by practitioners in the profession

under like circumstances. Mousseau avers that a breach of either duty is then

negligence per se because it constitutes a failure to meet the applicable standard of

care. Consequently, she argues that the trial court abused its discretion by

excluding the Stipulation and the provisions therein pertaining to Dr. Schwartz’s

licensure probation and the conditions thereupon. Mousseau argues such evidence

was relevant to the consideration of whether Dr. Schwartz failed to meet the

applicable standard of care by breaching a duty to possess the requisite degree of

knowledge and skill.

[¶14.] Dr. Schwartz submits that our settled case law does not establish two

separate grounds upon which the practitioner can be found liable for negligence.

He contends that the practitioner is negligent only if he deviates from the applicable

standard of care and such only occurs if he should fail to have and use the skill and

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care ordinarily employed by practitioners in the profession under like

circumstances. Thus, he reasons, since the degree of knowledge and skill possessed

by the practitioner does not alone constitute a basis upon which a jury can find a

failure to meet the applicable standard of care, the trial court correctly excluded the

Stipulation since it would not have established the causation required to sustain a

negligence action for medical malpractice.

[¶15.] In this regard, Dr. Schwartz cites Martinmaas v. Engelmann, 2000 SD

85, ¶31, 612 NW2d 600, 608 (holding that the defendant physician deviated from

the applicable standard of care when he “breached his duty to ‘use that care and

skill ordinarily exercised under similar circumstances by physicians in good

standing’” and that such deviation constituted malpractice) (emphasis added);

Shamburger v. Behrens (Shamburger II), 418 NW2d 299, 305 (SD 1988) (citing a

jury instruction similar to Instruction No. 6 that, however, concluded with the

statement, “The failure to perform these duties is negligence”) (emphasis added); In

re Appeal of Schramm, 414 NW2d 31, 34 (SD 1987) (concluding in reference to a

jury instruction similar to Instruction No. 6 that the issue becomes “whether the

professional deviated from this required standard of care”) (emphasis added)

(citation omitted); Block v. McVay, 80 SD 469, 476, 126 NW2d 808, 811 (1964)

(affirming a judgment for defendant physician where there was no evidence to

support a finding “that he failed to apply his skill and judgment with ordinary

care”) (emphasis added), overruled on other grounds by Shamburger v. Behrens

(Shamburger I), 380 NW2d 659 (SD 1986); Hansen v. Isaak, 70 SD 529, 531, 19

NW2d 521, 522 (1945) (recognizing that while the law requires a physician to have

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the degree of learning and skill ordinarily possessed by practitioners in the

profession, negligence consists of the physician’s “failure to conform to a standard of

care” defined therein as “the obligation to have and to use the skill and care”

commonly possessed by members of the profession) (emphasis added).

[¶16.] While we are not persuaded by Mousseau that a practitioner fails to

meet an applicable standard of care simply by failing to possess the knowledge and

skill ordinarily possessed by practitioners in the field, neither are we persuaded by

Dr. Schwartz that the Stipulation was properly excluded simply because a breach of

his duty to possess ordinary knowledge and skill did not alone constitute a failure to

meet the applicable standard of care and establish the causal connection to

Mousseau’s injury.

[¶17.] As Dr. Schwartz points out, this Court has previously stated:

The law requires that a physician shall have the degree
of learning and skill ordinarily possessed by physicians
of good standing practicing in the same community and
negligence of a doctor consists of his failure to conform
to the standard of care which the law establishes for
members of his profession, that is, the obligation to have
and to use the skill and care which members of his
profession commonly possess and exercise under similar
circumstances. Warwick v. Bliss, 46 SD 622, 195 NW 501 [(1923)].

Hansen, 19 NW2d at 522 (emphasis added). While we no longer subscribe to that

portion of the statement that refers to a local standard of care, see Shamburger II,

418 NW2d at 306 (adopting a national standard of care by which the practitioner

shall be measured), Hansen does in essence reflect the content of Instruction No. 6

from the instant case. The question before us is to what extent, if any,

consideration of the degree of “learning and skill” possessed by the physician enters

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into the determination of malpractice. This Court’s opinion in Fjerstad v. Knutson,

271 NW2d 8 (SD 1978), overruled on other grounds by Shamburger I, 380 NW2d at

663, together with our review of opinions from other jurisdictions is instructive.

[¶18.] In Fjerstad, the plaintiff sued the defendant medical intern for

malpractice contending that he was negligent per se because he practiced medicine

without a license. Id. at 13. In rejecting the plaintiff’s broad contention, the Court

recognized that while patients are entitled to an applicable standard of care

notwithstanding the caregivers’ status as an intern, the patient’s interest must be

balanced with the medical licensure requirement that a fully licensed physician

must first accredit himself through the institution of the intern requirement. Id. at

13-14. However, the Court signaled a broader application for its holding that

practicing medicine without a license is not evidence per se of negligence, stating:

Aside from the intern requirement, we do not believe that
failure to have a license should, in itself, render the
unlicensed person negligent. A physician is negligent if
his treatment is improper, but failure to have a license is
not enough to render the treatment automatically deficient.

Id. at 14 (citing Tittle v. Hurlbutt, 497 P2d 1354 (Hawaii 1972); Janssen v. Mulder,

205 NW 159 (Mich 1925)).

[¶19.] Tittle was another case involving a plaintiff who asserted that a

physician was negligent per se by practicing medicine without a license. Tittle, 497

P2d at 1355. Although, the physician was highly experienced having practiced

medicine for eighteen years in two jurisdictions, including a medical administration

position with the United States Navy, he did not have a license because he had not

yet lived in Hawaii long enough to satisfy that state’s residency requirement, which

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was in existence at the time the act giving rise to the claim arose. Id. at 1356. The

Hawaii Supreme Court rejected the plaintiff’s assertion stating that “it would have

been absurd to measure his skill by his non-licensed status.” Id. at 1356. See also

Janssen, 205 NW at 161 (holding that a failure to comply with the state registration

requirement “is not in itself sufficient on which to base a charge of malpractice”)

(emphasis added).

[¶20.] In Hall v. Hilbun, 466 So2d 856, 860-66 (Miss 1985), superseded by

statute on other grounds, the plaintiff in a medical malpractice action challenged

the manner in which the defendant physician conducted postoperative care of the

decedent. The court reiterated the applicable law that a physician “has a duty of

care consistent with the level of expertise the physician holds himself out as

possessing and consistent with the circumstances of the case.” Id. at 869 (emphasis

added). The court then stated:

Liability results from the physician’s failure to provide
requisite care under the circumstances, and nothing turns
on whether this failure resulted from incompetence or
neglect.

Our law has long focused upon the quality of care a
physician’s knowledge and skill may enable him to
render. . . . [A] physician must possess that reasonable
degree of learning, skill and experience which is ordinarily
possessed by others in his profession.

Id. (emphasis added).

[¶21.] In Durham v. Vinson, 602 SE2d 760 (SC 2004), the South Carolina

Supreme Court considered an appeal by a defendant physician in a medical

malpractice suit. The defendant asserted that a jury instruction, similar to

Instruction No. 6, supra ¶13, was erroneous in that it should not have included a

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“knowledge component.” See id. at 765. The defendant argued that emphasis on

his education and training combined with the instruction implied to the jury that

the defendant could be found liable for malpractice “solely on the basis of a lack of

education or background[.]” Id. (emphasis added). The court agreed with the

defendant to the extent that the instruction suggested that a lack of professional

learning, “by itself,” constituted a breach of the standard of care. Id. (emphasis

added). However, while holding that in the case at bar any such implication was

harmless, the court went on to state that “[t]he standard of care in a medical

malpractice action concerns both the physician’s skill and the physician’s

professional learning.” Id. at 765-66 (emphasis original). The court further

developed this view as follows:

Professional learning is pertinent to a physician’s
background and training, particularly when the procedure
in question . . . requires a special kind of learning.
Therefore, the knowledge component was properly included
in the jury charge. But the lack of or inadequacy of such
knowledge is not, by itself, dispositive as to whether a
physician is liable for medical malpractice.

Id. at 766 (emphasis added).

[¶22.] We read the pertinent sections of these opinions together to mean that

a deficit in the degree of knowledge and skill possessed by a practitioner from that

ordinarily possessed by other practitioners in the field is not alone sufficient for the

fact finder to conclude that the applicable standard of care has not been met.

However, that deficit is relevant to that determination in that it goes to the question

of whether the practitioner had and used the skill and care which other

practitioners in the field commonly possess and use. See supra ¶17 (quoting

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Hansen, 19 NW2d at 522); see also Kostel v. Schwartz, 2008 SD 85, ¶59, __ NW2d

__, __ (holding that language in a jury instruction stating that a “result alone is not,

in itself, evidence of negligence” was not to be interpreted to mean that the nature

of the result is no evidence of negligence, but rather could be considered along with

other evidence in making that determination). This is intuitive in that one who

does not possess ordinary knowledge and skill cannot apply either in the course of

conducting a procedure.

[¶23.] Dr. Schwartz held himself out as a licensed practitioner in the field of

medicine specializing in neurosurgery. Unlike the usual medical malpractice case,

which merely questions the otherwise competent physician’s application of a

standard of care, here, Mousseau asserted that Dr. Schwartz failed to even possess

the degree of knowledge and skill ordinarily possessed by neurosurgeons.

Accordingly, Dr. Schwartz should be held to possess the degree of knowledge and

skill ordinarily commensurate with such credentials. We conclude that Mousseau

should have been able to introduce the Stipulation on this basis, because it was

relevant to the jury’s determination of whether Dr. Schwartz possessed ordinary

knowledge and skill and whether he had and used the skill and care ordinarily

possessed and used by other neurosurgeons under like circumstances. 13

13. Since neither Mousseau nor Dr. Schwartz have alleged that Instruction No. 6
was erroneous, we do not address that issue on this appeal. However, we
caution that such an instruction may be misinterpreted such that an
inference could be drawn that a practitioner might fail to meet an applicable
standard of care either by failing to possess or use the ordinary knowledge
and skill possessed and used by practitioners in the field.

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[¶24.] Alternatively, Dr. Schwartz argues that to admit the Stipulation would

violate SDCL 19-12-5 (Rule 404(b)) 14 in that it would serve to establish an inference

for the jury that when Dr. Schwartz operated on Mousseau he was negligent in

conformity with prior acts. In Kostel, we summarized the analysis that must

proceed before “other acts” evidence can be properly admitted under Rule 404(b) as

follows:

Given that the list of “other purposes” under Rule 404(b)
for which evidence of other acts may be admitted is
nonexclusive, the possible uses, other than character is
limitless. Rule 404(b) is thus an inclusionary rule, not
an exclusionary rule. Evidence is only inadmissible under
the rule if offered to prove character.

2008 SD 85, ¶27, __ NW2d __, __ (citations omitted) (emphasis original).

[¶25.] In this case, Mousseau has not argued for inclusion of the Stipulation

as evidence of Dr. Schwartz’s character or to show that he acted in conformity with

some prior act. As we have already set out in the foregoing analysis, Mousseau

sought to introduce the Stipulation as evidence of Dr. Schwartz’s deficiency in

knowledge and skill and that such deficiency was relevant to his ability to meet the

applicable standard of care that required him to have and to use the skill and care

14. Rule 404(b) codified under SDCL 19-12-5 provides:

Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that
he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.

(Emphasis added).

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of that ordinarily possessed and used by neurosurgeons under similar

circumstances. While the Stipulation is certainly prejudicial to Dr. Schwartz, he

has failed to show that it is unfairly so or that the prejudicial nature of the

Stipulation outweighs its probative value. Therefore, his alternative argument also

fails.

Admissibility of the Stipulation to Cross-Examine Dr. Schwartz

[¶26.] The trial court allowed Dr. Schwartz to testify as a “fact” witness

without inquiry into the Stipulation and his licensure probation on the condition

that Dr. Schwartz refrain from offering any opinion as to the applicable standard of

care. Mousseau avers that notwithstanding this demarcation between “fact” and

“expert” testimony, Dr. Schwartz effectively appeared as an expert witness by

virtue of the highly technical nature of his testimony about how he arrived at his

diagnosis of Mousseau’s condition and his recommendations to her, as well as the

manner in which he described the procedures he performed on her. Simply stated

she asserts that, in the eyes of the jury, Dr. Schwartz was providing technical,

expert testimony, regardless of whether he specifically stated any opinions

regarding the standard of care. See Block, 126 NW2d at 812 (holding that “[l]aymen

cannot be expected to possess the technical knowledge and experience required to

intelligently second guess a physician on diagnostic procedures and the conclusions

to be drawn therefrom; this is especially true in a case such as this where the [ ]

nervous system[ ] of the human body [is] involved”) (emphasis added). Mousseau,

therefore, argues that Dr. Schwartz should have been available for cross-

examination about the Stipulation and the nature of his conditional licensure that

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#24109, #24125

was in effect at the time of trial, as it went to his knowledge, skill, learning, and

training in the field of neurosurgery and thus the credibility of his testimony. See

State v. Litschewski, 1999 SD 30, ¶¶22, 23, 590 NW2d 889, 903 (recognizing that

where a witness makes an issue of his credibility by favorable direct testimony, he

“‘opens the door’ to impeachment evidence on cross-examination”) (citations

omitted).

[¶27.] The excerpts of Dr. Schwartz’s testimony are replete with explanations

of his diagnostic findings prior to both the June 6 and November 1, 2001 surgeries

and how they supported his conclusions about recommended courses of treatment

for Mousseau’s condition preceding the respective surgeries. 15 Dr. Schwartz offered

15. In addition to the diagnostic and recommendation testimony in regard to the
June 6, 2001 surgery, cited supra ¶2, Dr. Schwartz also offered the following
direct testimony at trial concerning his preoperative assessments and the
procedure itself:

Dr. Schwartz: [G]iven the symptoms, given the excellent
clinical correlation that I felt existed, I felt
there was an explanation for her pain [ ]
that fit [ ] the symptoms very well and given
the treatment options, one of which . . .
was injection therapy, however, I told Ms.
Mousseau that epidural steroid injections
. . . in a diabetic doesn’t fix the problem
because this is a mechanical problem with
compression by bone, the overgrown facet
joints, that’s the body component of this
compression and thickened ligament.
There’s a . . . ligament just underneath
the facet joints called the ligament flavum
or yellow ligament, [ ] that was the majority
of the compression and that while steroids
might in an unpredictable manner help
. . . they might be like applying a Band-Aid[.]
It was not a fix and given the severity of
(continued . . .)
-18-
#24109, #24125

________________________
(. . . continued)
the symptoms and the radiographic findings,
I felt that she was at a point where she needed
surgical treatment, and I made that
recommendation. . . .

Defense Counsel: [C]an you tell the jury how you would have
described [to Mousseau] the surgical
procedure you were performing[?]

Dr. Schwartz: I told Ms. Mousseau that with the spinal
narrowing that the bones at the back of
the spine, which look like a shingle, one
on the left, one on the right, with a pointy
spinous process in between the two and
that being the bone that you can feel when
you press on your back, that that was the
portion that we remove to open the canal.
I told her that I would do it at the third,
the fourth, and the fifth lumbar levels, and
I, also explained to her that each level
of the spine where the, [ ] nerve roots come
out at each segment or level, that the nerves
run through little tunnels, called a
neuroforamina and that I would decompress
those nerves where they ran through the
tunnels. I discussed the risks of the surgery
which there’s always a risk of bleeding,
although I felt that that was a minimal risk.
With her being diabetic, the risk of infection
was discussed, and that was although with
diabetics there is a high risk of infection,
I generally would tell patients and . . . I told
Ms. Mousseau that the risk of infection
was probably about 1 in 100, still extremely
low. I told her that we give prophylactic
antibiotics, that’s before the surgery and
then several doses of antibiotic after the
surgery. I reassured her that the risk of
bleeding was small and I would not expect
to have to transfuse her. So as I routine,
I wouldn’t get a blood consent for a transfusion
with this type of surgery because I would
explain that the only circumstances where
(continued . . .)

-19-
#24109, #24125

________________________
(. . . continued)
blood might be needed would be in some
unforeseen complication which was extremely
rare and that typically was not even needed,
that we lost very little blood with this type
of surgery. I told Ms. Mousseau that
whenever I worked around in there and
saw the sac containing the nerves, there
was a little risk of injury to those structures,
although that was extremely small and
that I didn’t expect that there would be
any problem from a nerve injury, any
weakness or paralysis. I also explained
that working around the nerves and [ ]
the dural [sic] which is the covering around
the nerves and the sack containing the
nerves and contained in addition to the
nerves, the spinal fluid. That there’s always
a risk of spinal fluid leak. [I]f that tears,
. . . spinal fluid would leak out, typically
it would be seen at the time of surgery, and
fixed and [ ] what I would do is I would just
sew it up. I told her that there would be
in rare cases, it’s not obvious that a spinal
fluid leak has occurred, and that after the
surgery, [if] there was clear fluid draining
through the incision, . . . that would be an
indication that there was a spinal fluid leak
and the worst case scenario that we might
have to take her back to fix that. . . . I did
explain to Ms. Mousseau that in the majority
of cases, after you do a decompression,
that nine times out of ten, no further problems
develop. . . . However, in approximately
ten percent of patients, instability might
develop. If that happens it would require
a fusion, however, the chances of that
happening are so low that there’s really
no indication to do a fusion up front,
besides the fact that she had minimal
low back pain at the time that she saw
me, which once again was another
indication to me . . . that there really
wasn’t a component of instability present.
(continued . . .)

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#24109, #24125

________________________
(. . . continued)

...

Defense Counsel: Okay. Could you describe for the jury,
Doctor, what you did in performing the
surgery?

Dr. Schwartz: . . . The lumbar region was pricked in
a sterile fashion, an incision was made,
the levels were identified, the bones were
exposed, removed, and then foraminotomies
were carried out. After doing that, the
sac containing the nerve roots was inspected
by looking at it and the nerve roots
themselves were individually palpated or
felt with the surgical probe to make sure
that the probe could be passed along each
of the nerve roots on either side from L3
down to the S1 nerve root. And that’s
the way that I would ensure that the
decompression was adequate, and once
it was done, I would stop the bleeding, I
stopped the bleeding, irrigated with saline
and peroxide which is something I did
routinely. The peroxide really to help kill
bacteria possibly as well just as kind of
an [ ] extra little thing that I routinely do,
and then was sutured in a multi-layered
fashion, meaning several layers initially I,
I would sew up and the muscle and fascia,
which is the thick connective tissue just
overlying the muscle and then the
subcutaneous tissue, and finally the skin.
A dressing was applied[.] Ms Mousseau
[ ] was placed back on the stretcher. She
was extubated by the anesthesiologist,
woken up and taken to recovery.

(Emphasis added).

Dr. Schwartz offered the following direct testimony in regard to his
October 10, 2001 examination of Mousseau, his diagnostic conclusions and his
recommendations leading up to the November 1, 2001 fusion surgery:
(continued . . .)

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#24109, #24125

________________________
(. . . continued)

Defense Counsel: . . . Could you relate what your chart reflects
your review of the x-ray was on October
10, 2001, of the flexion/extension films?

Dr. Schwartz: . . . The findings I noted was . . . that there
was evidence of a retrolisthesis of L3 on
L4 which appeared to increase from flexion
to the extension view by several millimeters.
In addition, there was loss of the disk space
height at this level, . . . with associated
neuron foraminal stenosis. I noted that
there was a slight spondyloisthesis, grade
one, of L5 on S1 which appeared to be stable
and did not move from flexion to extension
and I gave my impression and that was
instability demonstrated at the L3-4 level
with disk space collapse.

...

Defense Counsel: Following your review of the MRI’s and the
x-rays, Doctor, what did you do?

Dr. Schwartz: Well, given the findings on the flexion/
extension films, I took these and I felt that
those were significant. My impression was
that there was instability. Ms. Mousseau
had related developing back pain and left
anterior thigh discomfort. This indicated
to me that there was potential instability
just based on the description of this
mechanical back pain, . . . which was
evidenced on these lateral flexion/extension
films and in addition to that, the foraminal
stenosis that I note on the x-rays would
correlate with an L3 nerve root compression
syndrome which would fit to me and along
with her description of this left anterior thigh
pain. So to me, this was the most significant
study, because it did indicate a problem
radiographically to my interpretation that
went along with her clinical symptoms and
(continued . . .)

-22-
#24109, #24125

________________________
(. . . continued)
I discussed these x-rays with . . . Ms.
Mousseau[ ] and made a recommendation
to her based on this.

(Emphasis added).

Dr. Schwartz offered the following testimony on cross-examination:

Plaintiff’s Counsel: You did not discuss with Ms. Mousseau
on June 5, 2001, the option of fusing
one or more of her vertebrae to fix her
problem, correct?

Dr. Schwartz: Given Ms. Mousseau’s complaints –

Plaintiff’s Counsel: That’s a yes or no?

Dr. Schwartz: I’m trying to answer your question.
Given Ms. Mousseau’s complaints of mild
low back pain and predominant left leg
pain, I didn’t believe that a fusion operation
at this time was even indicated.

...

I believe at this time, I felt that a
conservative surgical approach would
be the most appropriate for Ms. Mousseau
given her symptoms, her findings and
her radiographic studies.

Plaintiff’s Counsel: You don’t know, you didn’t have a flexion/
extension films prior to consenting Ms.
Mousseau for the laminectomy and
foraminotomy, did you?

Dr. Schwartz: Ms. Mousseau had mild low back pain.
I saw no reason to get flexion/extension
films.

...

I think one can get an x-ray anytime,
(continued . . .)

-23-
#24109, #24125

testimony as to percentage rate for various types of complications that could

potentially arise during or as a result of the procedures he proposed. He also

testified to the practice that he and others would follow during the various stages of

the procedure that he performed on Mousseau and what he would do if

complications arose. Most significantly, however, when Dr. Schwartz testified in

regard to the probability that vertebral instability might develop as a result of the

June 6, 2001 surgery by stating that “the chances of that happening are so low that

there’s really no indication to do a fusion up front,” he directly contradicted the

expert testimony of Dr. Teuber. One of the ways Dr. Teuber testified that Dr.

Schwartz had failed to meet the applicable standard of care was that he should

have recognized that the laminectomy performed at the L3-L4 vertebral segment

actually weakened the spine in that location resulting in a “clinically significant

retrolisthesis,” see supra n6, at that segment necessitating the fusion surgery at

that segment performed on November 1, 2001. See supra ¶3.

[¶28.] While in the view of the trial court, Dr. Schwartz’s testimony

constituted that of a percipient “fact” witness, conveying only his observations of his

examinations of and surgeries performed on Mousseau and refraining from

________________________
(. . . continued)
but as a clinician, I think it’s
incumbent to use judgment and you
get an x-ray if you feel that the clinical
signs and symptoms warrant getting
an x-ray or whatever other study the
clinician wants to order.

(Emphasis added).

-24-
#24109, #24125

testifying to an applicable standard of care, it is apparent that his testimony

amounted to an expert medical opinion offered by a witness with highly specialized

knowledge in a field beyond the scope of a layman’s independent comprehension.

See State v. Fool Bull, 2008 SD 11, ¶29, 745 NW2d 380, 389 (concluding that an

emergency room physician called by the State as a percipient observer in regard to

her examination of a rape victim offered testimony that amounted to expert

opinion); see also Orth v. Stoebner & Permann Const., Inc., 2006 SD 99, ¶44, 724

NW2d 586, 596 (reiterating in a case where we found that a physician stated with a

satisfactory degree of medical probability that a work-related injury and

degenerative condition respectively accounted for fifty percent each for the

plaintiff’s condition that “[t]here are no ‘magic words’ needed to express an expert’s

degree of medical certainty, and the test is only whether the expert’s words

demonstrate that he or she was expressing an expert medical opinion”) (quoting

Stormo v. Strong, 469 NW2d 816, 824 (SD 1991)); Ward v. Epting, 351 SE2d 867,

872 (SC 1986) (holding that the defendant physician, who took the witness stand as

a mere party and not an expert, did effectively offer expert testimony based in part

on the fact that she testified to routine surgical and recovery room procedures in

addition to her own actions and to a reasonable degree of medical certainty as to

how the subject event in the case at bar occurred).

[¶29.] Moreover, while Dr. Schwartz did not expressly offer testimony as to

his opinion on the applicable standard of care, we conclude that he in effect did so.

From Dr. Schwartz’s testimony as to the practice that he and others would follow

during the various stages of the procedures that he performed on Mousseau, we can

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#24109, #24125

infer that he was testifying to an applicable standard of care. To conclude

otherwise would be to surmise that Dr. Schwartz disavows the application of a

standard of care or at best is ambivalent about such a standard. See McCurdy v.

Hatfield, 183 P2d 269, 271 (Cal 1947) (holding that while the defendant physician

did not expressly testify to an applicable standard of care, his testimony did amount

to what constituted proper practice, and thus, could reasonably be inferred to

constitute testimony as to a standard of care ordinarily applied by physicians under

like circumstances); Huffman v. Lindquist (Huffman I), 213 P2d 106, 110

(CalDistCtApp 1950), vacated on other grounds by Huffman v. Lindquist (Huffman

II), 234 P2d 34 (Cal 1951); Dickow v. Cookinham, 266 P2d 63, 65-66 (CalDistCtApp

1954); see also Huffman II, 234 P2d at 41 (reasoning that where a defendant

physician, who does not expressly testify to an applicable standard of care, but does

in effect testify to a proper practice, it is presumed that the practice is based on the

applicable standard of care and if the defendant physician does not therewith

conform, a prima facie case of negligence is therein established).

[¶30.] Still, Dr. Schwartz argues that, in any case, the trial court properly

excluded the Stipulation evincing his licensure probation and the conditions

thereon. He cites Boomsma v. Dakota, Minnesota & Eastern R.R. Corp., 2002 SD

106, 651 NW2d 238, overruled on other grounds by State v. Martin, 2004 SD 82, 683

NW2d 399; Sommers v. Friedman, 493 NW2d 393 (WisCtApp 1992); Soto v. Lapeer

County, 426 NW2d 409 (MichCtApp 1988); and King v. Ahrens, 16 F3d 265 (8thCir

1994) for the proposition that under the circumstances of the instant case, evidence

-26-
#24109, #24125

pertaining to the status of professional licensure is not a proper subject of cross-

examination. However, these cases are distinguishable from the case on appeal.

[¶31.] In Boomsma, the trial court refused to admit evidence that plaintiff’s

expert had voluntarily relinquished his optometry license and defendant appealed.

2002 SD 106, ¶48, 651 NW2d at 248. Unlike the instant case where Dr. Schwartz

acknowledged by way of the Stipulation that his licensure probation was

attributable to malpractice, in Boomsma, the plaintiff’s expert was merely the

subject of allegations of misconduct. This case lends no support to Dr. Schwartz’s

position. Our affirmance of the trial court in Boomsma was based on the court’s

reasoning that in lieu of any evidence of misconduct, allowing testimony “which

amounted to no more than mere allegations of misconduct” “would be more

prejudicial than probative.” Id. ¶51

[¶32.] In Sommers, the plaintiff sought to cross-examine the defendant

physician about the fact that she had failed two voluntary internal medicine

specialty board certification exams three years and four years respectively prior to

examining the decedent. 493 NW2d at 397. The plaintiff asserted that the exam

failures were relevant to the defendant’s overall competency and that they were the

proper subject of impeachment because she alleged the defendant offered expert

opinions on the subject matter underlying the exams. In refusing the plaintiff’s

request, the trial court reasoned that the defendant offered only very limited

opinion testimony and that the exam failures were of limited relevance to the

manner in which she examined the decedent. Id. at 397-98. Contrasted with

Sommers, in the instant case, Dr. Schwartz offered a voluminous amount of medical

-27-
#24109, #24125

opinion testimony in regard to the diagnosis and treatment of Mousseau. And, the

licensure probation and conditions set out in the Stipulation were relevant to the

level of credibility that the jury might assign to Dr. Schwartz’s seemingly competent

testimony.

[¶33.] In Soto, the trial court ruled that the plaintiff could not question the

defendant physician about a consent order whereby he agreed to a probationary

period during which his license was restricted. 426 NW2d at 411-12. In affirming

the trial court, the appellate court noted that the consent order arose out of an

administrative complaint filed against the defendant concerning a specific

procedure performed on a particular patient, that it did not arise out of the case at

bar, and that it did not involve any procedure performed by the defendant in the

case at bar. Id. at 412. The nature of the Stipulation in the instant case is

dissimilar in that although it may have arisen out of Dr. Schwartz’s malpractice in

regard to other patients, the procedures giving rise to his stipulated conditional

licensure were neurosurgical spine procedures.

[¶34.] Finally in King, that trial court refused to allow evidence that the

defendant physician’s medical license had been suspended for thirty days some

eight years prior to trial. 16 F3d at 268. King is inapposite to Dr. Schwartz’s five-

year conditional licensure probation that began twenty-six months prior to trial.

With reference to the balancing test applied under Rule 403, 16 the Eighth Circuit

Court of Appeals stated:

16. Rule 403 codified under SDCL 19-12-3 provides as follows:

(continued . . .)
-28-
#24109, #24125

The danger of unfair prejudice is substantial and
immediately apparent in this case for several reasons.
The license suspension by its very nature reflects badly
on [the defendant’s] professional conduct, although this
alone does not amount to unfair prejudice. Additional
factors to weigh include the remoteness of the license
suspension to the incident at issue, the suspension having
occurred approximately eight years before [the defendant’s]
examination of Mr. King. The license suspension did not
arise out of the same or similar circumstances as the
incident at issue. Further, the veracity of [the defendant]
and his medical chart were subject to thorough impeachment
at trial by inconsistencies readily apparent in his testimony,
the medical chart, and his deposition, and the past license
suspension would have shed little new light on [the
defendant’s] character for truthfulness. Thus, in spite
of the peripheral relevance of the suspension, there was
great danger that the jury might improperly infer from
the fact of a distant and unrelated past license suspension
that [the defendant’s] professional judgment and conduct
in the instant case must have been substandard solely
because his license had been suspended on a prior occasion.
Given the danger that this evidence might influence a jury
to decide the case on an improper basis and the great
deference with which we review this evidentiary ruling,
we cannot say that the district court abused its discretion
in determining that the danger of prejudice outweighed
the probative value of the license suspension.

Id. at 269-70 (emphasis in original).

[¶35.] In the instant case, both Dr. Schwartz and Mousseau thoroughly

briefed the issue of whether to allow reference to the Stipulation, and fully argued

factors for and against admission during a pretrial motions hearing. The trial court

________________________
(. . . continued)
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

-29-
#24109, #24125

appears to have ruled in favor of exclusion without balancing the probative value

against the danger of unfair prejudice or providing any justification on the record.

[¶36.] Our review of the record reveals no basis similar to that cited by the

court in King, 16 F3d at 269-70, as to why the Stipulation should not be admitted

into evidence or available for Mousseau to use during cross-examination of Dr.

Schwartz. The Stipulation was relevant to the degree of knowledge and skill in the

field of neurosurgery possessed by Dr. Schwartz during the time proximate with the

procedures he performed on Mousseau. Accordingly, it was relevant to his

credibility as a witness who effectively gave expert testimony in the field of

neurosurgery. While evidence of, or inquiry into, Dr. Schwartz’s licensure probation

and conditions thereon would no doubt have been prejudicial to him, the probative

value of that evidence outweighs the prejudicial effect upon Dr. Schwartz in the

context of his having had the chance to offer highly technical, effectively expert

testimony to the jury without any challenge to the credibility of his supposedly

competent testimony.

[¶37.] Alternatively, Dr. Schwartz argues that to admit the Stipulation would

violate SDCL 19-14-10 (Rule 608(b)), because he argues the probationary status of

his license is not probative of his reputation for truthfulness. Rule 608(b), codified

under SDCL 19-14-10 provides:

Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility, other
than conviction of crime as provided in §§ 19-14-12 to
19-14-16, inclusive, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness:

-30-
#24109, #24125

(1) Concerning his character for truthfulness or
untruthfulness; or
(2) Concerning the character for truthfulness or
untruthfulness of another witness as to which
character the witness being cross-examined has
testified.

[¶38.] We addressed this precise issue when presented to the Court for

review by Dr. Schwartz in Kostel, 2008 SD 85, ¶13, __ NW2d __, __. Thus we need

not revisit our analysis of the proper scope of application for Rule 608(b), other than

to reiterate our holding:

[W]hile inquiry into an expert’s alleged mistakes or
connection to unrelated adverse claims do not impact on
his credibility or character for truthfulness, evidence
contrary to the representation of the witness’s expertise
in the field for which he offers his opinion at bar is relevant
to his competency, does impact credibility and therefore
is appropriate inquiry.
Id. ¶14 (emphasis original) (citations omitted). 17 Furthermore, in Kostel, we

restated our prior recognition that when a witness places his credibility at issue

17. As we did in Kostel, we again note Dr. Schwartz’s citation to Hathcock v.
Wood, 815 So2d 502 (Ala 2001) in support of his position that inquiry into the
Stipulation and his conditional licensure probation violates Rule 608(b). See
2008 SD 85, ¶14 n9, __ NW2d __, __ n9. In Kostel, we explained:

In Hathcock, a medical malpractice case, the Alabama Supreme
Court deferred to the trial court’s conclusion that cross-
examination of plaintiff’s expert about events that led to his
medical license being placed on probationary status by the local
licensing authority was more prejudicial than probative. 815 So2d
at 507. However, affirming the trial court, the Alabama court
opined that “evidence bearing on a witness’s veracity is forbidden
under Rule 608(b).” Id. at 508. We are not persuaded by this
interpretation of Alabama’s rule, which is identical to South
Dakota’s, for this is precisely the kind of testimonial evidence that
a party may elicit on cross-examination pursuant to the express
language in the rule.

-31-
#24109, #24125

through favorable direct testimony, he “‘opens the door’” to impeachment on cross-

examination pursuant to SDCL 19-14-8 (Rule 607), 18 even in instances when

evidence is not otherwise admissible under Rule 608(b). Id. ¶20 (citing Litschewski,

1999 SD 30, ¶¶22, 23, 590 NW2d at 903 (quoting State v. Byrum, 399 NW2d 334,

337-38 (SD 1987)) (citations omitted).

[¶39.] Finally, Dr. Schwartz argues that inclusion of the Stipulation would

violate the provisions of SDCL 36-4-31.5, 19 which establishes as confidential,

witness testimony and documentary evidence in license cancellation, revocation,

suspension, or limitation proceedings conducted by the Board. However, our review

of the Stipulation reveals that it does not include any information from the Board

proceeding itself, which is the focus of the confidentiality statute. Therefore, the

18. Rule 607 codified under SDCL 19-14-8 provides:

The credibility of a witness may be attacked by any party,
including the party calling him.

19. SDCL 36-4-31.5 provides:

Testimony of a witness or documentary evidence of any kind on
cancellation, revocation, suspension, or limitation proceedings are
not subject to discovery or disclosure under chapter 15-6 or any
other provision of law, and are not admissible as evidence in any
action of any kind in any court or arbitration forum, except as
hereinafter provided. No person in attendance at any hearing of
the Board of Medical and Osteopathic Examiners considering
cancellation, revocation, suspension, or limitation of a license
issued by it may be required to testify as to what transpired at
such meeting. The prohibition relating to discovery of evidence
does not apply to deny a physician access to or use of information
upon which a decision regarding his staff privileges was based.
The prohibition relating to discovery of evidence does not apply to
any person or his counsel in the defense of an action against his
access to the materials covered under this section.

-32-
#24109, #24125

provisions of SDCL 36-4-31.5 are not invoked by inclusion of the terms and

conditions of Dr. Schwartz’s probation as provided in the Stipulation. Moreover,

since Dr. Schwartz consented that the terms of the Stipulation constituted a public

record, see supra ¶7, his claim that SDCL 36-4-31.5 precludes admission of the

Stipulation is without merit.

[¶40.] Dr. Schwartz established his neurosurgery practice in June 2000,

immediately after completing his residency. One year later, he performed the first

of two procedures on Mousseau. Mousseau alleges that during the first procedure

on June 6, 2001, Dr. Schwartz failed to meet the applicable standard of care by

leaving untreated, areas of her spine that needed treatment, while at the same time

weakening others, thereby necessitating spinal fusion surgery on November 1,

2001. She further alleges that the accumulation of scar tissue following the first

surgery led to Dr. Schwartz again failing to meet the applicable standard of care by

damaging nerve roots while conducting the second surgery, resulting in permanent

back pain and leg weakness. During the time proximate with Mousseau’s surgery,

Dr. Schwartz conducted procedures on other patients from which claims of

malpractice were raised. Ultimately, Dr. Schwartz entered into the Stipulation

with the Board whereby his license was placed on probationary status with

numerous conditions precedent to his full reinstatement, including retraining in his

chosen field and group practice for five years thereafter. The reason given by the

Board for the sanctions was “Malpractice.”

[¶41.] The Stipulation was evidence of a deficiency in Dr. Schwartz’s

knowledge and skill in the field of neurosurgery that related directly to his ability to

-33-
#24109, #24125

meet the applicable standard of care by possessing and using the skill and care

ordinarily possessed and used by neurosurgeons under like circumstances. In

addition, the Stipulation was relevant to challenge the credibility of Dr. Schwartz’s

highly technical, effectively expert testimony regarding his diagnostic findings and

conclusions and the manner in which he conducted the surgery on Mousseau.

Finally, as a public record, there was no basis in this case for the exclusion of the

Stipulation. Accordingly, we conclude that the trial court abused its discretion by

excluding the Stipulation. Because the terms and conditions therein went to vital

matters in the case – the level of knowledge and skill possessed by Dr. Schwartz

and the credibility of his testimony – exclusion of the Stipulation in all probability

affected the outcome of the jury’s verdict and thereby constitutes prejudicial error.

See Carpenter v. City of Belle Fourche, 2000 SD 55, ¶23, 609 NW2d 751, 761;

Kjerstad, 517 NW2d at 427.

[¶42.] Reverse and remand for further proceedings consistent with the

foregoing opinion.

[¶43.] ZINTER and MEIERHENRY, Justices, and WILBUR and HOFFMAN,

Circuit Judges, concur.

[¶44.] WILBUR, Circuit Judge, sitting for SABERS, Justice, disqualified.

[¶45.] HOFFMAN, Circuit Judge, sitting for KONENKAMP, Justice,

disqualified.

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