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He stated that it was only after the operation had commenced that the problems in these segments were apparent, and that accordingly, he fused those areas as well. Schwartz presented expert witnesses who testified that a procedure conducted beyond the scope of consent, to repair spinal problems undetectable through preoperative examination, was consistent with the requisite standard of care.[¶ 6.] The jury found for Kostel and awarded damages of 1,962.96. The trial court denied the post-trial motions and entered judgment on the verdict on June 27, 2006.[¶ 7.] Both parties allege error in regard to evidentiary decisions and jury instructions by the trial court. Schwartz from testifying to his training, experience and knowledge without opening the door to the disclosure of other allegations of malpractice and associated disciplinary proceedings.2. We affirmed the trial court based on its 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. Consequently, this inquiry would have related to Dr. D., a neurosurgeon from Dakota Dunes, South Dakota, they testified as plaintiff's experts at trial. Schwartz asserts that this was error and that the letter was relevant and should have been admissible.[¶ 45.] First, Dr. Schleusener subordinated his own judgment in the treatment of Kostel by succumbing to animus motivated influence by Dr. Whether the trial court abused its discretion by the inclusion of jury instructions objected to by Dr. Schwartz was negligent, such could not be reached unless it concluded he had failed to provide the applicable standard of care set out in other instructions. During the surgery, where it had been originally intended that the L4-L5 segment would be fused, two other segments were also fused. With the exception of anxiety and depression, the trial court suppressed all other evidence or references to Kostel's history of other psychiatric disorders.[¶ 74.] We will address Dr. Durward, Schleusener, Seljeskog and Teuber, who all stated that a patient's psychiatric health is relevant to a neurosurgeon because it effects the patient's recovery. Schwartz also claims that information about Kostel's psychiatric disorders would have provided impeachment evidence pertinent to her ability to accurately perceive and recall events occurring around the relevant time.[¶ 76.] The trial court was skeptical of the foundation for the neurosurgeons' claims about the relevancy of psychiatric health to surgical recovery and their qualifications to testify thereto. The law requires a board-certified surgeon to base any professional decision he made on skill and careful study and consideration of the case, but when the decision depends upon the exercise of judgment, the law requires only that the judgment be in good faith. Although in Shamburger, this Court affirmed the second paragraph of the instruction, which is relevant to our analysis in the instant case, this Court reversed the trial courts inclusion of the “good faith error in judgment” language in the first paragraph of Instruction No. In deciding what testimony to believe, you may consider:(1) the witnesses' ability and opportunity to observe;(2) their intelligence;(3) their memories;(4) their manner while testifying;(5) whether they said or did something different at an earlier time;(6) their qualifications and experience;(7) any apparent interest, bias, or prejudice they may have; and(8) the reasonableness of their testimony in light of all the evidence in the case.27. … continue reading »


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