South Dakota Neurosurgeon Loses 2 Malpractice Appeals

A Rapid City neurosurgeon who said he had been sued more than 30 times for malpractice lost two appeals on August 21 in the South Dakota Supreme Court.

The court upheld a jury verdict awarding a woman nearly $552,000 in damages from Dr. Steven B. Schwartz because of mistakes in surgery on her spine.

In the second case, the Supreme Court overturned the verdict of a jury that had found Schwartz did not commit malpractice in performing surgery on another woman. The high court said the trial was flawed because the jury did not learn that a state board had put Schwartz on probation and limited his practice because of malpractice.

Court documents said Schwartz established his neurosurgery practice in June 2000, immediately after completing his residency training.

In December 2003, Schwartz signed a stipulation with the state Board of Medical and Osteopathic Examiners that placed him on probation and required him to undergo advanced training. Schwartz also agreed that for five years after the training he would not practice on his own and would only practice neurosurgery through group practice.

In the first case, Schwartz operated on Patricia Kostel in March 2002, and she later sued him for malpractice after she experienced problems that led to additional surgeries. Kostel’s spine has been fused from the tailbone to her shoulder blades, she takes medication for pain, and lives in an assisted living facility because she requires help in routine daily activities, according to court records.

A jury awarded Kostel damages of nearly $552,000, but Schwartz filed an appeal arguing the trial judge made a number of errors in admitting evidence and instructing the jury.

Schwartz sought to prevent evidence in the trial about other pending malpractice lawsuits and his agreement with the Board of Medical and Osteopathic Examiners.

The Supreme Court upheld the trial judge’s decision to exclude that evidence from the trial on the condition that Schwartz not testify about his experience and training and his opinion about the applicable standard of care in such cases. Schwartz testified only about the surgery,

If Schwartz had testified about his credentials or the applicable standard of care, the additional evidence about the board’s disciplinary action and the previous lawsuits would have been relevant, the high court said.

The Supreme Court also upheld the trial judge’s other rulings, including a decision to exclude evidence about a letter another doctor sent anonymously to Kostel to tell her something had gone wrong when Schwartz operated on her.

In the second case, Schwartz operated on Diane Mousseau in June and November 2001. She later alleged he failed to treat some areas of her spine that should have been treated and that he weakened other areas of her spine, resulting in permanent back pain and leg weakness.

A jury did not award Mousseau any damages.

The judge in Mousseau’s case refused to admit the agreement between Schwartz and the Board of Medical and Osteopathic Examiners as evidence, but the Supreme Court said the case must return to circuit court because that document should have been presented to the jury.

The agreement was evidence of a deficiency in Schwartz’s knowledge and skill in neurosurgery that related to his ability to meet the applicable standard of care for a patient, the high court said. That agreement also was needed to allow Mousseau to challenge the credibility of Schwartz’s technical testimony, the justices said.

Because the agreement dealt with vital matters, its exclusion as evidence probably affected the outcome of the jury’s verdict, the Supreme Court said.

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