South Dakota Medical Malpractice Incorrect Jury Instruction: A New South Dakota Supreme Court Case

The South Dakota Supreme Court has upheld South Dakota Circuit Judge Jon Erickson’s decision to grant a new trial in a medical malpractice lawsuit against a Huron doctor. The medical malpractice lawsuit arose out of complications from gall bladder surgery in 2001. The jury instruction stated:

A doctor is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.

This instruction is clearly not South Dakota law and, while the South Dakota Supreme Court says there are medical malpractice cases where this instruction is appropriate in “certain limited circumstances” the court does not explain what those circumstances might be. I can’t imagine what they are. But Judge Erickson gave the instruction. The jury last year found that the doctor was not negligent.

I don’t know how the change of heart came about but, to his credit, Judge Erickson acknowledged the error and ordered a new trial. The doctor’s malpractice lawyer appealed, arguing that is was an abuse of discretion to grant a new trial. Specifically, the defendant’s lawyer relied on Veith v. O’Brien where the court found that the plaintiff did not prove that this “error in judgment” instruction “in all probability” had an impact on the jury’s verdict.

The South Dakota Supreme Court agreed with Judge Erickson that the instruction was inappropriate and found that it was not an abuse of discretion to find that the instruction prejudiced the Plaintiff’s case. Interesting, the court stated in a footnote that “concededly, there may be little to distinguish our holding in Veith.” I just thought this was a remarkable candid admission from the South Dakota Supreme Court.

The decision was unanimous and I think it is hard to argue with the result because every medical malpractice plaintiff has the right to have a jury consider what the malpractice law actually is. That said, I feel for the doctor who received a verdict and now must go through the entire process all over again. Finding for the plaintiff is the lesser injustice but it is intellectually dishonest to think that the jury in this case likely would have found medical malpractice but for this incorrect jury instruction.

You can read the entire opinion here.