Frye-Byington v. Rapid City Medical Center

#28952, #28969-a-MES
2021 S.D. 3

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

JODIE M. FRYE-BYINGTON, Plaintiff and Appellant,

v.

RAPID CITY MEDICAL CENTER,
LLP, GARY L. WELSH, M.D.,
ROBERT C. BURGESS, M.D., and
MICHAEL C. RAFFERTY, M.D., Defendants and Appellees.

****

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

****

THE HONORABLE THOMAS L. TRIMBLE
Retired Judge

****

R. SHAWN TORNOW
Sioux Falls, South Dakota Attorney for plaintiff
and appellant.

LONNIE R. BRAUN
GREGORY J. BERNARD
KIMBERLY PEHRSON of
Thomas, Braun, Bernard,
& Burke, LLP
Rapid City, South Dakota Attorneys for defendants and
appellees.

****

ARGUED
OCTOBER 6, 2020
OPINION FILED 01/20/21
#28952, #28969

SALTER, Justice

[¶1.] Jodie Frye-Byington brought a negligence claim against Rapid City

Medical Center (RCMC) and three of its doctors (collectively, the Appellees),

alleging the doctors did not inform her of a mass growing in her chest for six years.

Jodie asserts that the mass caused her persistent issues with her throat and chest

that continued until the mass was removed. Following a six-day jury trial, the jury

returned a verdict in favor of RCMC and the named doctors. On appeal, Jodie

argues that the circuit court abused its discretion in refusing to allow her to call two

rebuttal witnesses and refusing her proposed jury instruction on agency. The

Appellees also raise several issues by notice of review. We affirm.

Background

[¶2.] Jodie Frye-Byington sought medical care at RCMC from 2008 to 2014

for complaints of a constant cough, hoarseness, neck pain and swelling, difficulty

breathing, and chest pain. Several radiographic images taken between 2008 and

2014 revealed a mass in her chest, but Jodie asserts she was not told of its presence.

Over time, the mass grew to about seven centimeters in length, and doctors at the

Mayo Clinic removed the mass in September 2014. The mass, known as a

mediastinal mass, was determined to be benign thyroid tissue that regrew after

doctors removed her thyroid prior to 2008. 1

1. Jodie was previously diagnosed with Hashimoto’s thyroiditis, an autoimmune
disorder that attacks the thyroid. As a result, doctors removed the left side of
her thyroid in 1996, and the right side was removed in 2005. Jodie maintains
a proper thyroid hormone level by taking Synthroid, a synthetic hormone
replacement medication.

-1-
#28952, #28969

[¶3.] In July 2016, Jodie commenced this action against RCMC and three of

its physicians, alleging malpractice for misdiagnosing her condition and failing to

inform her of the mass. Jodie’s principal claim was that Dr. Robert Burgess, an ear,

nose, and throat specialist (ENT), was negligent for not telling Jodie about the mass

in 2008 when it was first seen on a CT scan. Her claims against Dr. Michael

Rafferty and Dr. Gary Welsh, both family practice physicians, were that they

similarly failed to advise her of the mass. Jodie’s expert witness, a family practice

physician, concluded that the standard of care for a physician—regardless of

specialty—required disclosure of the mass to the patient.

[¶4.] Dr. Burgess moved for summary judgment, arguing that Jodie’s claim

against him was time-barred under South Dakota’s two-year medical malpractice

statute of repose. See SDCL 15-2-14.1. The circuit court denied Dr. Burgess’

motion based upon the continuing tort doctrine, which, when applicable, operates to

delay the commencement of the repose period.

[¶5.] During the six-day jury trial, the Appellees objected to portions of the

testimony of Jodie’s expert witness, alleging some of her opinions were not

previously disclosed and that she was not qualified to render an opinion on the

standard of care for Dr. Burgess. The Appellees also objected to Jodie’s effort to

support her malpractice allegations by claiming negligent conduct by an RCMC

doctor not named in her suit. The court overruled these objections.

[¶6.] After the Appellees rested, Jodie’s counsel asked to call two

radiologists as rebuttal witnesses, arguing they were necessary to rebut Dr.

Burgess’ testimony that he had not previously seen two draft radiology reports. The

-2-
#28952, #28969

court denied the request, explaining that Jodie’s counsel should have offered the

documents as exhibits in its case-in-chief.

[¶7.] At the close of Jodie’s case and again the at the close of the evidence,

the Appellees moved for judgment as a matter of law, arguing Jodie’s expert failed

to produce testimony establishing the correct standard of care for an ENT specialist,

such as Dr. Burgess. The Appellees also claimed that Jodie’s expert failed to

provide sufficient testimony to support the malpractice claims against each of the

named providers. The court denied these motions and also denied Jodie’s proposed

jury instruction describing RCMC’s vicarious liability in the event the jury found

RCMC’s doctors negligent.

[¶8.] The jury returned a verdict in favor of RCMC and the named

physicians. Jodie raises the following issues on appeal:

1. Whether the circuit court abused its discretion when it
denied her request to call two rebuttal witnesses.

2. Whether the circuit court abused its discretion when it
denied her proposed jury instruction regarding RCMC’s
vicarious liability.

[¶9.] By notice of review, the Appellees also raise the following additional

issues: 2

1. Whether the circuit court erred when it denied Dr.
Burgess’ motion for summary judgment.

2. Whether the circuit court erred when it denied Dr.
Burgess’ motion for judgment as a matter of law.

2. At oral argument, counsel for the Appellees advised the Court that they
would not seek review of their issues if we affirmed the jury verdict. Having
determined that affirmance is proper, we therefore will not address the
Appellees’ issues.

-3-
#28952, #28969

3. Whether the circuit court erred when it denied the
Appellees’ motion for judgment as a matter of law.

4. Whether the circuit court abused its discretion when it
allowed expert testimony alleged to be previously
undisclosed.

5. Whether the circuit court abused its discretion when it
allowed evidence of an unnamed provider’s alleged
negligent care to be attributed to the named defendants.

Analysis

Denial of Jodie’s Request for Two Rebuttal Witnesses

[¶10.] “Our standard of review for evidentiary rulings ‘requires a two-step

process[:] first, to determine whether the trial court abused its discretion in making

an evidentiary ruling; and second, whether this error was a prejudicial error that

“in all probability” affected the jury’s conclusion.’” Johnson v. United Parcel Serv.,

Inc., 2020 S.D. 39, ¶ 27, 946 N.W.2d 1, 8 (quoting Supreme Pork, Inc. v. Master

Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491) (alteration in original)

(emphasis omitted). “An abuse of discretion is a fundamental error of judgment, a

choice outside the range of permissible choices, a decision, which, on full

consideration, is arbitrary or unreasonable.” Id. (quoting Andrews v. Ridco, Inc.,

2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546).

[¶11.] “Rebuttal evidence is that which explains, contradicts, or refutes the

defendant’s evidence. Its purpose is to cut down [the] defendant’s case and not

merely to confirm that of the plaintiff[].” Shrader v. Tjarks, 522 N.W.2d 205, 209

(S.D. 1994) (citation omitted); see also SDCL 15-14-1(6) (explaining how rebuttal

-4-
#28952, #28969

evidence may be offered during trial). “Rebuttal is appropriate only when the

defense injects a new matter or new facts.” Id. (citation omitted).

[¶12.] At the heart of Jodie’s request for rebuttal testimony were two draft

radiology reports from 2010 and 2011, 3 which she claims indicate the mediastinal

mass had grown since it was first detected in 2008. The draft reports Jodie sought

to offer each contain a “cc” notation indicating Dr. Burgess received a copy.

However, RCMC’s medical records do not contain the same “cc” notation, and Dr.

Burgess flatly denied ever seeing the 2011 draft report when Jodie’s counsel asked

him at his deposition five months before trial. Jodie’s counsel did not show Dr.

Burgess the 2010 draft report at his deposition.

[¶13.] At trial, Jodie’s counsel attempted to cross-examine Dr. Burgess by

comparing the 2010 draft report to the version of the report contained in Jodie’s

RCMC medical records in an apparent effort to demonstrate that, because the draft

report contained the “cc” notation, Dr. Burgess had seen it. However, neither of the

draft reports were admitted as evidence, and the circuit court sustained the

Appellees’ objection for lack of foundation.

[¶14.] After the defense rested, Jodie’s counsel sought to offer rebuttal

testimony from the two radiologists who prepared the reports which Dr. Burgess

denied ever seeing. According to an impromptu offer of proof by Jodie’s counsel, the

radiologists would testify that their draft reports listed Dr. Burgess as receiving a

3. The two draft reports were Jodie’s March 18, 2010 thyroid biopsy ultrasound
report and her March 21, 2011 chest computerized tomography report.

-5-
#28952, #28969

copy through a “cc” reference. Jodie’s counsel did not produce affidavits from the

two radiologists, and they were not present in court. 4

[¶15.] The circuit court denied Jodie’s request to offer the rebuttal testimony,

reasoning that Jodie’s counsel knew there were foundation issues associated with

the draft reports from the two radiologists well in advance of trial. Therefore, in the

court’s view, Jodie’s counsel should have sought to introduce the exhibits with the

proper foundation in Jodie’s case-in-chief in order to then discuss the records with

Dr. Burgess during his cross-examination. Doing so would have removed the

evidentiary impediment and allowed the presentation of the draft report evidence

during the principal evidentiary portion of the case, as Jodie had contemplated.

[¶16.] We find no abuse of discretion in the circuit court’s decision to exclude

the proffered testimony of the radiologists and question whether it was rebuttal

evidence at all. It appears from the record that Jodie’s counsel originally planned to

use the radiologists’ draft reports during Dr. Burgess’ cross-examination to suggest

he had seen the draft reports showing the mediastinal mass had grown, not as

rebuttal evidence. Prior to trial, counsel for the Appellees anticipated this and

specifically advised at the pretrial conference that the Appellees would not stipulate

to the authenticity of the draft reports. Although they agreed that all of Jodie’s

other medical records could be admitted without foundation, Appellees’ counsel

indicated at the pretrial conference that they were unwilling to accede to the

4. Counsel for Jodie attempted to serve subpoenas on the radiologists, but they
did not appear because they alleged through their counsel that service was
insufficient. Consequently, the circuit court’s decision to deny Jodie’s request
for testimony from rebuttal witnesses who were not present could be affirmed
on this basis alone.

-6-
#28952, #28969

admission of the draft reports at trial because they were not included in RCMC’s

official medical records, and counsel expressed uncertainty regarding their origin.

[¶17.] However, at trial, Jodie’s counsel did not seek to lay foundation to

authenticate the two draft reports in her case-in-chief, and the effort to cross-

examine Dr. Burgess about them stalled when the court sustained the Appellees’

foundation objections. Viewed in context, therefore, Jodie’s counsel was not using

the proposed rebuttal testimony to “cut down” Dr. Burgess’ testimony because it

“injected a new matter or new facts” into the case. It was, instead, an effort to

belatedly authenticate the draft reports Jodie had unsuccessfully offered as

evidence earlier in the trial. 5

[¶18.] Beyond this, Jodie has failed to demonstrate prejudice. The proposed

rebuttal testimony from the radiologists indicating that Dr. Burgess was listed next

to a “cc” notation on the draft reports would not have impacted the verdict for two

apparent reasons.

[¶19.] First, Jodie’s counsel acknowledged that Dr. Burgess’ testimony about

not having seen the draft report may well have been accurate, telling the circuit

court, “quite honestly, [Dr. Burgess’] testimony may be truthful that he hasn’t seen

it.” As indicated, the final reports contained in Jodie’s medical records produced by

5. This case differs significantly from the fact-bound circumstances in Sorensen
v. Harbor Bar, LLC, 2015 S.D. 88, ¶ 33, 871 N.W.2d 851. There, we held that
a workers’ compensation claimant’s pretrial knowledge of a defense expert’s
testimony did not preclude rebuttal testimony, but we did so because the
rebuttal testimony did not augment the claimant’s compensability case.
Rather, the rebuttal testimony disputed the employer’s defense. Here,
however, Jodie intended to use the draft reports to directly support her claim
that Dr. Burgess’ negligence prevented her from knowing that the size of the
mediastinal mass had increased.

-7-
#28952, #28969

RCMC and admitted at trial did not contain a notation showing that Dr. Burgess

had received a copy. As we understand the proffer, the two radiologists were not

going to testify that Dr. Burgess had, in fact, received a copy of the draft reports or

reviewed them—only that the draft reports indicated he had received copies. 6

[¶20.] Second, Jodie’s case against Dr. Burgess focused principally on her

allegation that he should have advised her of the mediastinal mass at the outset,

when he first noticed it in 2008. The fact that it was still present and had increased

in size related more to the claims against Drs. Welsh and Rafferty, both of whom

prevailed at trial.

[¶21.] Under the circumstances, we see no abuse of discretion or prejudice

associated with the circuit court’s decision to deny Jodie’s request to allow the

rebuttal testimony.

Denial of Jodie’s Proposed Jury Instruction

[¶22.] “A trial court has discretion in the wording and arrangement of its jury

instructions, and therefore we generally review a trial court’s decision to grant or

deny a particular instruction under the abuse of discretion standard.” Johnson,

2020 S.D. 39, ¶ 28, 946 N.W.2d at 9 (quoting Bertelsen v. Allstate Ins. Co., 2011 S.D.

13, ¶ 26, 796 N.W.2d 685, 695). However, courts do not have discretion to give

incorrect instructions to the jury:

“[T]o do so constitutes reversible error if it is shown not only
that the instructions were erroneous, but also that they were

6. Although Jodie’s counsel proffered that the radiologists could provide a
foundation for the draft reports, there was no indication they would have
been able to distinguish between a draft report and a final report, or explain
how the former becomes the latter.

-8-
#28952, #28969

prejudicial.” Prejudice occurs “when[,] in all probability[,] [the
instructions] produced some effect upon the verdict and were
harmful to the substantial rights of a party.”

Mealy v. Prins, 2019 S.D. 57, ¶ 30, 934 N.W.2d 891, 900 (alteration in original)

(quoting Vetter v. Cam Wal Elec. Coop., Inc., 2006 S.D. 21, ¶ 10, 711 N.W.2d 612,

615). “To determine whether the court erred in instructing the jury, we apply a de

novo standard of review and ‘construe jury instructions as a whole to learn if they

provided a full and correct statement of the law.’” Tammen v. K & K Mgmt. Servs.,

Inc./Fryn’ Pan, 2019 S.D. 29, ¶ 13, 929 N.W.2d 96, 99 (quoting Vetter, 2006 S.D. 21,

¶ 10, 711 N.W.2d at 615).

[¶23.] Jodie contends that the circuit court’s decision to truncate her

proposed jury instruction regarding the law of agency resulted in an incomplete, or

incorrect, statement of the law. Under SDCL 59-6-9:

[A] principal is responsible to third persons for the negligence of
his agent in the transaction of the business of the agency,
including wrongful acts committed by such agent in and as part
of the transaction of such business; and for his willful omission
to fulfill the obligation of the principal.

[¶24.] Jodie’s proposed agency jury instruction read:

Rapid Medical Center, LLP, is liable to third persons, like
Plaintiff, for the negligence of its employee(s) in carrying out
medical services to and for Plaintiff’s medical diagnosis,
treatment(s) and failure to inform, including wrongful acts
committed by such employee(s) in and as part of the conduct of
such medical services; and for the employee(s) willful
omission(s) to fulfill the obligation(s) of Defendant Rapid
Medical Center, LLP.

[¶25.] The Appellees objected, stating that the last portion of the instruction

only served to restate Jodie’s negligence claim. The circuit court agreed, and

provided the following instruction to the jury:

-9-
#28952, #28969

Rapid City Medical Center, LLP, is liable to third persons, like
Plaintiff, for the negligence of its employee(s) in carrying out
medical services to and for Plaintiff’s medical diagnosis and
treatment(s).

[¶26.] Missing from this instruction is the portion taken from Jodie’s

proposed instruction concerning the failure to inform and advising the jury that

RCMC is also liable for “wrongful acts committed by such agent in and as part of

the transaction of such business; and for his willful omission to fulfill the obligation

of the principal.” However, we are not convinced this language was necessary in

this case to adequately state the law to the jury.

[¶27.] Under the circumstances of this case, Jodie’s claim that Drs. Burgess,

Welsh, and Rafferty had failed to inform her of the mediastinal mass was

inextricably intertwined with her treatment. The circuit court’s decision to omit

this “failure to inform” phrase did not overlook Jodie’s evidence or deprive her of the

argument that RCMC was liable because its physicians were negligent for not

advising her of the mass.

[¶28.] We are also not persuaded by Jodie’s claim that the circuit court

abused its discretion by not instructing the jury that RCMC was liable for its agents

“willful omission[s] to fulfill [RCMC’s] obligations.” Jodie sought to impose

vicarious liability upon RCMC based on its doctors’ alleged negligence. It was not

tried on the claim that their conduct included “willful omission[s] to fulfill the

obligation” of RCMC.

[¶29.] Jodie contends the circuit court’s agency instruction failed to account

for a separate claim against RCMC. This claim is based upon the theory that Dr.

Burgess referred her to RCMC’s urgent care clinics where she was seen by other

-10-
#28952, #28969

providers, including non-party providers, who, she alleges, failed to thoroughly

review her medical records and learn of her mediastinal mass. To support the

claim, Jodie cites the decision of the Ohio Supreme Court in Clark v. Southview

Hosp. & Fam. Health Ctr., 628 N.E.2d 46 (Ohio 1994). However, Clark involved a

distinctly different agency issue, and Jodie’s reliance upon it is misplaced.

[¶30.] In Clark, a divided court used the doctrine of agency-by-estoppel to

extend the principles of respondeat superior from the employer/employee

relationship to the employer/independent contractor relationship. 628 N.E.2d at 54.

Here, there are no independent contractors, and although RCMC denied that other

providers who had not been individually sued were appropriately part of the case, it

did not dispute their status as agents.

[¶31.] Beyond this, Jodie’s agency argument is ultimately unsustainable

because it does not state a new theory of negligence as much as it reprises the

unsuccessful allegations of negligence against Drs. Burgess, Welsh, and Rafferty.

Jodie claimed that Dr. Burgess initially breached the standard of care by not

advising her of the mediastinal mass and that Drs. Welsh and Rafferty were

similarly negligent for not reviewing the prior CT scan. This is precisely the same

theory Jodie states with respect to other RCMC providers who were not named as

defendants. 7 However, Jodie has not demonstrated how she would have been able

7. Jody alleged at trial that three other RCMC providers, who were not named
in the suit, provided negligent care to her because, like Drs. Welsh and
Raffety, they also treated her without reviewing her medical records to learn
of the mediastinal mass. For reasons not directly raised by the issues here,
the circuit court allowed Jodie to discuss the alleged negligence of one of
these non-party providers, but not all three. Though not identified as an
(continued . . .)
-11-
#28952, #28969

to use these same negligence allegations to extend vicarious liability to RCMC

through its unnamed agents when she was unable to do so through the named

doctors. 8

[¶32.] Further, even if the circuit court abused its discretion, we are unable to

perceive prejudice because the general verdict precludes meaningful review. In

order to understand the effect of the error Jodie alleges, the verdict form should

have contained special interrogatories that isolated the specific basis for the jury’s

determination of no liability from among the necessary elements. 9 “Without special

interrogatories detailing the basis for the jury’s determination of no liability, we are

unable to discern the reason for its verdict, which could have rested on multiple

permissible bases.” Sedlacek v. Prussman Contracting, Inc., 2020 S.D. 18, ¶ 22, 941

N.W.2d 819, 824.

[¶33.] Here, the jury’s general defense verdict may have been based on

several permissible grounds having nothing to do with the law of agency. For

________________________
(. . . continued)
issue on appeal, Jodie claims this ruling “arbitrarily limited” her “agency
evidence.” However, because there was no detectible variation in the theory
of negligence among any of these providers, named or unnamed in the action,
Jodie’s argument is not supportable.

8. The jury was instructed that the three doctors named in the action were
RCMC’s agents and that “if you find Dr. Welsh, Dr. Rafferty and/or Dr.
Burgess liable for any of the plaintiff’s claims against them, you must also
find defendant Rapid City Medical Center, LLP, liable on the same claims.”

9. Jodie proposed a verdict form for use in the event that the jury returned a
verdict for her. She did not propose a verdict form that contemplated a
defense verdict. The verdict form used by the jury was consistent with one
proposed by the Appellees which simply stated, “We, the jury . . . find for the
Defendants.”

-12-
#28952, #28969

example, the jury could have determined that the individual doctors did not violate

the applicable standard of care. The jury could have also concluded that there was

insufficient evidence of causation because Jodie, by her expert’s own admission, did

not establish when the surgery to remove the mediastinal mass should have

occurred in the absence of the alleged malpractice. Under these circumstances, our

cases recognize that we cannot assess prejudice, leaving as our only course,

recognition of the rule that the circuit court is presumed to have acted correctly.

See State Farm Mut. Auto. Ins. Co. v. Miranda, 2019 S.D. 47, ¶ 10, 932 N.W.2d 570,

574 (quoting Reed Constr., Inc. v. S.D. Dep’t of Transp., 2017 S.D. 63, ¶ 14, 903

N.W.2d 740, 745 (“[I]f a general verdict is handed down and the jury could have

decided the case on two theories, one proper and one improper, the reviewing court

will assume that it was decided on the proper theory.”)).

Conclusion

[¶34.] The circuit court did not abuse its discretion by denying the request to

call two rebuttal witnesses in an attempt to lay foundation for medical records not

offered during Jodie’s case-in-chief. The court also did not abuse its discretion when

it limited the agency instruction relative to the claims Jodie raised against the

Appellees. We affirm.

[¶35.] JENSEN, Chief Justice, and DEVANEY, Justice, and GILBERTSON,

Retired Chief Justice, and MEIERHENRY, Retired Justice, concur.

[¶36.] MEIERHENRY, Retired Justice, sitting for KERN, Justice,

disqualified.

-13-
#28952, #28969

[¶37.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

-14-