Kostel v. Schwartz

#24244, #24254-a-DG

2008 SD 85

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
PATRICIA KOSTEL, Plaintiff and Appellee,

v.

STEVEN B. SCHWARTZ, M.D., individually,
STEVEN B. SCHWARTZ, M.D., P.C., d/b/a
WEST RIVER NEUROSURGERY & SPINE,
a professional corporation, Defendants and Appellants.

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

* * * *
HONORABLE A. PETER FULLER
Judge
* * * *

G. VERNE GOODSELL
TERENCE R. QUINN
MATTHEW E. NAASZ of
Gunderson, Palmer, Goodsell & Nelson, LLP
Rapid City, South Dakota Attorneys for plaintiff
and appellee.

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

* * * *
ARGUED ON MARCH 26, 2008

OPINION FILED 08/20/08
#24244, #24254

GILBERTSON, Chief Justice

[¶1.] Patricia Kostel (Kostel) filed suit against Dr. 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 May 30 through June 8, 2006, in the South Dakota Seventh Judicial Circuit.

The jury entered a verdict for Kostel and on June 27, 2006, the trial court entered a

judgment on the verdict. We affirm.

FACTS AND PROCEDURE

[¶2.] In March 2002, Kostel consulted with Dr. Schwartz, a Rapid City,

South Dakota, neurosurgeon, in regard to a back problem. Following an

examination of Kostel and review of her medical records, Dr. Schwartz

recommended that she undergo a one-level spinal fusion at the L4-L5 1 vertebral

segment. The procedure was to involve an L4 laminectomy 2 and L4-L5 discectomy 3

1. 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://apparelyzed.com/spine.html (last visited August 8, 2008).

2. Laminectomy is a procedure used to treat spinal stenosis – a condition that
causes pain in the extremities due to compression of the spinal nerves inside
the spinal canal, arising from degeneration, or wear and tear, in the parts of
the spine adjacent to the affected area. 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
the pressure.
(continued . . .)
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using posterior lumbar interbody fusion 4 with pedicle screws. 5 Dr. Schwartz

operated on Kostel on March 8, 2002. In addition to the anticipated fusion at the

L4-L5 segment, Dr. Schwartz performed fusions at the L3-L4 and L5-S1 6 segments

as well.

[¶3.] Following her surgery, Kostel received an anonymous letter, ostensibly

written by a surgical nurse or operating room or scrub technician, which alleged

that serious problems had occurred during the surgery. 7 The letter suggested that

________________________
(. . . continued)
http://www.eorthopod.com/public/patient_education/6571/lumbar_laminectom
y.html (last visited August 8, 2008).

3. “Discectomy 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
8, 2008).

4. “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/surgery-
overview/lumbar-surgery/posterior-lumbar-interbody-fusion-plif-surgery.html
(last visited August 8, 2008).

5. “[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- spine-fusion (last visited
August 8, 2008).

6. This designation refers to the segment that includes the last lumbar vertebra
and the first sacral vertebra. http://images.main.uab.edu/
spinalcord/graphicimages/bspine.gif (last visited August 8, 2008).

7. The anonymous letter had been written by Larry Teuber, M.D., a competing
Rapid City neurosurgeon.

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Kostel seek legal recourse against Dr. Schwartz and included referrals and Yellow

Page advertisements for local attorneys practicing in the field of medical

malpractice. Kostel ultimately filed suit against Dr. Schwartz alleging negligence

in the performance of her surgery, and that the surgery exceeded the scope of the

L4-L5 fusion to which she had given consent.

[¶4.] During the jury trial the parties disputed why the surgery went

beyond its preoperative scope. Kostel alleged that Dr. Schwartz became “lost in her

spine” and mistakenly performed unnecessary fusions in addition to the consented-

to, L4-L5 fusion. Kostel elicited testimony from Dr. Schwartz that in the fourteen

months prior to her surgery, he had misread X-rays and had conducted surgery at

unconsented-to levels. Her suit against Dr. Schwartz, supported by expert

testimony, was founded on the claim that such was the case with her procedure and

that he had consequently breached the standard of care to which she was entitled.

[¶5.] Dr. Schwartz testified that the preoperative examination and X-rays

did not reveal problems in the L3-L4 and L5-S1 segments. 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. Dr. 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 $551,962.96.

Kostel moved for additur, or in the alternative, a new trial on damages. Dr.

Schwartz responded and moved for a new trial. The trial court denied the post-trial

motions and entered judgment on the verdict on June 27, 2006.
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[¶7.] Both parties allege error in regard to evidentiary decisions and jury

instructions by the trial court. Dr. Schwartz raises six issues on appeal:

1. Whether the trial court abused its discretion when
it precluded Dr. 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. Whether the trial court abused its discretion when
it allowed Kostel to elicit testimony from Dr. Schwartz
pertaining to alleged “other acts” and when the court gave
the jury an instruction limiting the applicability
of the testimonial evidence obtained during this line of
questioning.

3. Whether the trial court abused its discretion when
it refused to admit an anonymous letter sent to
Kostel, the author of which was a competitor of
Dr. Schwartz’s and non-testifying expert for Kostel.

4. Whether the trial court abused its discretion by the
inclusion of jury instructions objected to by Dr.
Schwartz and the denial of others that he requested.

5. Whether the trial court abused its discretion by the
sua sponte preclusion of evidence related to Kostel’s
history of psychiatric disorders.

6. Whether the trial court erred when it excluded evidence
that portions of Kostel’s medical bills were “written
off” pursuant to federal laws governing the billing
of Medicare beneficiaries.

We address one issue raised by Kostel on notice of review: 8

7. Whether the trial court abused its discretion by
denying Kostel’s request for a jury determination of her claim
for punitive damages.

8. Due to our affirmance on Issues 1 through 6, we need not address Kostel’s
remaining issues.

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ANALYSIS AND DECISION

[¶8.] 1. Whether the trial court abused its discretion
when it precluded Dr. 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.

[¶9.] Within the fourteen-month period prior to the surgery he performed on

Kostel, Dr. Schwartz operated on two patients, on both of which Dr. Schwartz

mistakenly performed procedures in the wrong locations on the patients’ spines.

The first of these surgeries took place in July 2001, seven months after Dr.

Schwartz completed his residency and started his practice. As a consequence,

litigation arising from these two incidents was pending at the time the instant case

was at trial.

[¶10.] On December 17, 2003, Dr. Schwartz signed a stipulation with the

South Dakota State Board of Medical and Osteopathic Examiners (the “Board”)

wherein he agreed to have his license placed on probationary status. Among the

conditions of the probation, Dr. Schwartz agreed to complete one year of advanced

clinical training in neurosurgery and three months of advanced training in

neuroradiology. He also agreed that he would limit his practice of medicine to the

extent required to fulfill the training obligations. Dr. Schwartz further agreed that

for a period of five years following the completion of training, he would refrain from

practicing on his own and that during that time he would only engage in the

practice of neurosurgery through group practice. The stipulation provided that

various national data bases and the Federation of State Medical Boards would be

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notified of the probation and that the “Basis for Action” given in such notification

would be “Malpractice.”

[¶11.] Dr. Schwartz moved in limine to exclude evidence or testimony

concerning the other pending malpractice suits and Board proceedings. At a

hearing on May 5, 2006, the trial court granted his motion. The exclusion was

conditioned, however, on Dr. Schwartz refraining from offering any testimony about

his training and experience, or opinions as to the applicable standard of care. Still,

Dr. Schwartz was permitted to testify about the surgical procedure he performed on

Kostel and the intra-operative pathology that he alleged was the basis for

expanding the preoperative scope of the surgery without exposing himself to

examination of other pending malpractice claims or proceedings involving the same

type of allegations. Nevertheless, Dr. Schwartz contends the ruling was prejudicial

and that he should have been able to offer his expert opinion as to the applicable

standard of care and to establish for the jury the basis for his opinion by testifying

to his training and qualifications without being subject to inquiry into the other

pending malpractice suits or the Board proceedings.

[¶12.] “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 and quotations omitted).

[¶13.] Dr. Schwartz argues that an inquiry into the other pending

malpractice suites or Board proceedings would violate SDCL 19-14-10 (Rule 608(b)).

Rule 608(b) provides:
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#24244, #24254

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:

(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.

In support of this argument, Dr. Schwartz cites Persichini v. William Beaumont

Hosp., 607 NW2d 100 (MichCtApp 1999); Heshelman v. Lombardi, 454 NW2d 603

(MichCtApp 1990); Nowatske v. Osterloh, 549 NW2d 256 (WisCtApp 1996); and Roe

v. Doe, 612 NYS2d 558 (NYSupCt 1994).

[¶14.] These cases are consistent with the precept that inquiry into an

expert’s alleged mistakes or connection to unrelated adverse claims do not impact

on his credibility or character for truthfulness. However, these cases also hold that

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 and does impact

credibility, and therefore, is appropriate inquiry. 9 See Persichini, 607 NW2d at 106

9. Dr. Schwartz also cites Hathcock v. Wood, 815 So2d 502 (Ala 2001) in support
of his position that inquiry into the other malpractice suits and Board
proceedings would violate Rule 608(b). 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. Id. 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
(continued . . .)
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#24244, #24254

(holding that inquiry on cross-examination of expert as to whether he had been a

defendant in other malpractice cases without addressing any alleged misdiagnosis

in said cases, was not relevant to the expert’s competency or knowledge);

Heshelman, 454 NW2d at 609 (holding that “[m]ere unproven accusations of

malpractice stated in a complaint cannot be used as a basis for attacking a

physician’s knowledge and credibility”); Nowatske, 549 NW2d at 259 (holding that

cross-examination of expert about the mere existence of malpractice actions against

him did not impact on his credibility and did not go to his character for truthfulness

or untruthfulness); Roe, 612 NYS2d at 560 (holding that disclosure of defendant

expert’s conviction of a criminal offense was relevant to his credibility as a witness,

but that inquiry into the disciplinary proceedings that resulted in the suspension of

his license due to the well publicized criminal conviction did not aid the fact finder

in assessing his credibility and competency in regard to the unrelated malpractice

suit at bar).

[¶15.] In Wischmeyer v. Schanz, 536 NW2d 760 (Mich 1995), the Michigan

Supreme Court analyzed this issue in a case with facts that closely parallel those of

the instant case. The plaintiff in Wischmeyer injured his back and thereafter

consulted with the defendant physician who performed an “L4-L5 discectomy with a

posterior lumbar interbody fusion (PLIF).” Id. at 762. The plaintiff filed a

malpractice suit when his condition worsened following the surgery. Id. at 763.

________________________
(. . . continued)
by that court’s interpretation of this 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 rule’s express language.

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#24244, #24254

Plaintiff’s expert testified at length to his credentials and explained that he

performed six to ten PLIF surgeries and “hundreds of other spinal surgeries.” Id.

Plaintiff’s expert offered a colloquy on various spinal surgery procedures and how

they should be performed, culminating with his conclusion that the defendant

performed the wrong procedure on the plaintiff, and further, that he had performed

that procedure incorrectly. Id. The expert then pronounced that the “plaintiff’s

symptoms ‘should not have occurred unless there was some negligence at the time

of the procedure.’” Id.

[¶16.] On cross-examination, Schanz’s defense counsel inquired into

plaintiff’s expert’s success in the six to ten PLIF surgeries he had performed that

were similar to the one at issue in that case. Plaintiff’s expert acknowledged that

none of these procedures had been successful. He was also asked about four non-

PLIF surgeries that had failed, which plaintiff’s expert denied remembering.

Plaintiff’s expert then testified he had never been a defendant in a medical

malpractice suit. Id. at 763.

[¶17.] On appeal, that court considered defense counsel’s cross-examination

in a two-part analysis – the question of whether plaintiff’s expert had been the

subject of a malpractice suit and the inquiry into plaintiff’s expert’s failed non-PLIF

procedures. 10 In regard to the malpractice inquiry, the court held that “the mere

fact that an expert may have been named in an unrelated medical malpractice

action is not probative of his truthfulness under [Rule 608(b)] or relevant to his

10. Defense counsel’s inquiry into plaintiff’s expert’s unsuccessful PLIF surgeries
was not at issue during the appeal. Wischmeyer, 536 NW2d at 764.

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competency or knowledge.” Id. at 767 (emphasis added); see also Persichini, 607

NW2d at 105 (taking guidance from Wischmeyer). In the other analysis, the court

held that Rule 608(b) was properly considered by the trial court11 and the inquiry

into the unsuccessful non-PLIF surgeries was relevant to plaintiff’s expert’s

competency. 12 Wischmeyer, 536 NW2d at 765. In justifying this result, the court

opined:

In this case, [plaintiff’s expert] testified that defendant
should have undertaken a more conservative course of
treatment, implying that a more conservative treatment
would have prevented plaintiff's injuries. Through this
testimony, he placed his competency to condemn defendant
in question. The cross-examination of [plaintiff’s expert]
regarding prior poor surgical results, therefore, did not
raise extrinsic evidence prohibited by [Rule 608(b)]. Because
the competency of [plaintiff’s expert] was properly before
the court, evidence pertaining to his credibility was relevant.

It is intended that the Rules of Evidence promote the
ascertainment of the truth. [ 13 ] Where information is relevant

11. The court also found that the Rule 403 was correctly considered. Id. at 766.
Michigan’s version of Rule 403 is identical to South Dakota’s, which is
codified at SDCL 19-12-3 and provides as follows:

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.

12. The court also recognized that the trial court had appropriately applied Rule
608(b) by disallowing impeachment of plaintiff’s expert with extrinsic
evidence and noting that the trial court stated that defense counsel “would be
‘stuck with [plaintiff’s expert’s] answer.’” Id.

13. The court cited Michigan’s Rule 102, which is effectively identical to South
Dakota’s Rule 102 codified under SDCL 19-9-2, and provides:

Chapters 19-9 to 19-18, inclusive, shall be construed to
(continued . . .)
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and not unduly prejudicial, it would be unwise to apply
[Rule 608(b)] so that the jury is deprived of information
that would assist it in its task. We believe that this cross-
examination was proper because during direct examination
[plaintiff’s expert]testified that he had performed hundreds
of back surgeries, including PLIFs, in order to establish his
competency.

The juxtaposition of [plaintiff’s expert’s] testimony on direct
examination and his conclusion that plaintiff’s condition
could only result from some negligence during surgery
rendered [plaintiff’s expert’s] ability to perform such surgeries
relevant. “Gaps or weaknesses in the witness’ expertise
are a fit subject for cross-examination, and go to the weight
of his testimony, not its admissibility.” Because expert
testimony is admitted to assist the trier of fact, it was
imperative that opposing counsel be afforded the opportunity
to cross-examine [plaintiff’s expert] to expose the weaknesses
in his knowledge, skill, experience, training, or education.

Id. at 765-66 (emphasis added) (internal citations omitted).

[¶18.] In support of his position, Dr. Schwartz also cites Martinmaas v.

Engelmann, 2000 SD 85, 612 NW2d 600. In Martinmaas, the defendant physician

testified to the applicable standard of care and we affirmed the trial court’s decision

allowing plaintiffs’ counsel to establish that the defendant no longer had a license,

but denied defense counsel any further inquiry into the proceedings of the licensing

authority or any other evidence concerning the reason the defendant physician no

longer was licensed. Id. ¶¶54-58, 612 NW2d at 612-13. However, this case does not

________________________
(. . . continued)
secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth
and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly determined.

(Emphasis added).

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lend support to Dr. Schwartz, since our holding in Martinmaas was premised on the

trial court’s consideration of the fact that the defendant had surrendered his license

contemporaneous with an assault charge that was adjudicated prior to trial. See id.

¶3. Our review of the record in Martinmaas revealed that plaintiffs’ counsel was

able to impeach the defendant’s credibility by establishing that the defendant no

longer was licensed. Id. ¶58, 612 NW2d at 613.

[¶19.] In addition, Dr. Schwartz claims 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, lends support to his argument. In

Boomsma, the defendant appealed the trial court’s refusal to admit evidence

pertaining to plaintiff’s expert’s optometry license, which the expert voluntarily

relinquished rather than contest allegations of misconduct. Id. ¶48, 651 NW2d at

248. Again, this case lends no support to Dr. Schwartz’s position. 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. Id. ¶51. Compare with

Adams v. Fuqua Industries, Inc., 820 F2d 276 (8thCir 1987) (holding that where

expert testified that defendant was liable because it failed to incorporate a “state of

the art” device in its lawn mower, the trial court erred by not allowing defendant to

impeach expert on cross-examination about his use of the same kind of lawn mower

at his place of business).

[¶20.] We have also recognized that where a witness makes an issue of his

credibility by favorable direct testimony, he “‘opens the door’ to impeachment

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evidence on cross-examination.” State v. Litschewski, 1999 SD 30, ¶¶22, 23, 590

NW2d 889, 903 (citations omitted). In holding that the defendant’s testimony had

placed his credibility at issue, subjecting him to impeachment by contradiction on

cross-examination, we noted that “even if ‘the evidence is not admissible under

[Rule 608(b)] it may be admissible to impeach by contradiction as allowed by SDCL

19-14-8[(Rule 607)].’” 14 Id. ¶26 (quoting State v. Byrum, 399 NW2d 334, 337 (SD

1987)) (citation omitted).

[¶21.] In this case, Dr. Schwartz established his neurosurgery practice in

June 2000, immediately after completing his residency. Twenty-one months later,

he operated on Kostel. In the fourteen-month period preceding Kostel’s surgery, Dr.

Schwartz conducted two surgeries similar to Kostel’s during which, by his own

deposition testimony, he made significant mistakes, and in malpractice suits were

filed. 15 Ultimately, Dr. Schwartz entered into a 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 these sanctions was

malpractice.

14. 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.

15. 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.

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[¶22.] Nevertheless, Dr. Schwartz contends that he should be able to testify

without challenge to the applicable standard of care and his credentials and

experience as a neurosurgeon. This is not appropriate. Under the trial court’s

ruling, had Dr. Schwartz testified as he proposed, Kostel’s inquiry on cross-

examination would have been based, not on allegations, but rather on Dr.

Schwartz’s own admissions of malpractice. In addition, the procedures giving rise

to the malpractice actions about which Kostel would have inquired of Dr. Schwartz

were not of a kind remote in time or unrelated in type to Kostel’s procedure.

Consequently, this inquiry would have related to Dr. Schwartz’s competency and

thereby would have been relevant to the assessment of his credibility in the eyes of

the jury. We find no prejudice in the trial court’s conditional exclusion of evidence

related to the other malpractice actions and the Board proceedings, and therefore,

no abuse of discretion. 16

[¶23.] 2. Whether the trial court abused its discretion
when it allowed Kostel to elicit testimony from
Dr. Schwartz pertaining to alleged “other acts”
and when the court gave the jury an instruction
limiting the applicability of the testimonial
evidence obtained during this line of questioning.

16. While our conclusion on this issue did not necessitate a review of the trial
court’s decision to allow Dr. Schwartz to offer lay testimony about the surgical
procedure that he performed on Kostel’s spine, we reiterate our holding in
Block v. McVay, 80 SD 469, 126 NW2d 808, 812 (1964) (emphasis added),
overruled on other grounds by Shamburger v. Behrens, 380 NW2d 659 (SD
1986): “Laymen 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.”

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[¶24.] Dr. Schwartz alleges that the trial court misapplied SDCL 19-12-5

(Rule 404(b)) when it ruled that Kostel could ask him three questions regarding

“other acts.” He also contends that this alleged error was compounded and he was

unduly prejudiced when the trial court issued a jury instruction limiting the scope

of the application of his answers to the questions.

Evidence of Other Acts

[¶25.] Rule 404(b) as codified at 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).

[¶26.] Pursuant to the “other purposes” under Rule 404(b), the trial court

allowed Kostel to ask the following three questions “for the purpose of determining

whether Dr. Schwartz had the requisite skill and knowledge required of a

neurosurgeon to read and interpret the radiographic images in this case[:]”

1. Did you misread X-rays involving spinal surgeries
in the 14 months prior to Ms. Kostel’s surgery?
2. On how many occasions did you misread X-rays
involving spinal surgeries during this period of time?
3. Did you operate at a level of a patient’s spine not
consented to in the 14 months prior to Ms. Kostel’s
surgery?

Dr. Schwartz answered affirmatively to all three questions.

[¶27.] 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, are limitless. State v. Wright, 1999 SD 50, ¶14, 593 NW2d 792,

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798. Rule 404(b) is thus an inclusionary rule, not an exclusionary rule. Id. ¶13

(citing John W. Larson, South Dakota Evidence § 404.2(1) (1991)). Evidence is only

inadmissible under the rule if offered to prove character. Id. (citing Larson, §

404.2(1)).

[¶28.] Notwithstanding the inclusionary nature of Rule 404(b), the proponent

of the other-act evidence has the burden of showing the relevance of the other act.

SDCL 19-12-1 (Rule 401); 17 SDCL 19-12-2 (Rule 402). 18 The other-act evidence is

then admissible only if the evidence is sufficient for the trial court to conclude that

a jury could find by a preponderance that the other “act occurred and that the

defendant was the actor.” Wright, 1999 SD 50, ¶14, 593 NW2d at 798 (quoting

Huddleston v. United States, 485 US 681, 689, 108 SCt 1496, 1501, 99 LEd2d 771

(1988)); See also State v. McDonald, 500 NW2d 243, 246 (SD 1993)) (additional

17. Rule 401 codified under SDCL 19-12-1 provides:

“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.

18. Rule 402 codified under SDCL 19-12-2 provides:

All relevant evidence is admissible, except as otherwise
provided by Constitution or statute or by chapters 19-9 to
19-18, inclusive, or by other rules promulgated by the
Supreme Court of this state. Evidence which is not relevant
is not admissible.

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citation omitted); see also SDCL 19-9-8 (Rule 104(b)). 19 When evidence is found

relevant, “the balance tips emphatically in favor of admission” unless the probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

issues, misleading the jury, undue delay, waste of time or cumulative evidence

pursuant to Rule 403. Wright, 1999 SD 50, ¶14, 593 NW2d at 799 (quoting Edward

J. Imwinkelried, Uncharged Misconduct, Evidence § 8.28, at 118-19 (Rev ed 1998)).

The party objecting to the admission of the other-act evidence then has the burden

of establishing that the concerns expressed under Rule 403 substantially outweigh

the probative value. Id. ¶16 (quoting Larson, § 403.1; (citing Jane C. Hofmeyer, A

Relaxed Standard of Proof for Rule 404(b) Evidence: United States v. Huddleston, 6

Cooley LRev 79 (1989))); see also Id. ¶15 (citing United States v. Betancourt, 734

F2d 750, 757 (11thCir 1984) (Rule 403 is an “extraordinary remedy which should be

used only sparingly since it permits the trial court to exclude concededly probative

evidence”), reh’g denied, 740 F2d 979 (11thCir 1984), cert. denied, Gerwitz v. United

States, 469 US 1021, 105 SCt 440, 83 LEd2d 365 (1984)).

[¶29.] Out of the jury’s presence, trial counsel argued the merits of the

inclusion of evidence pertaining to the two mistakenly performed spinal surgeries

conducted by Dr. Schwartz within time proximity with Kostel’s. Plaintiff’s counsel

19. Rule 104(b) codified under SDCL 19-9-8 provides:

When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of the
fulfillment of the condition.

(Emphasis added).

-17-
#24244, #24254

argued that the nature of these surgeries was relevant to the case at bar and that

evidence thereof should be admitted to show the degree of knowledge and skill

possessed by Dr. Schwartz. In reaching its decision, the trial court made the

following assessment:

The evidence is directed toward establishing a matter and
issue other than the defendant’s propensity to commit
the act. [T]he evidence shows that the other act is similar
enough and close enough in time to be relevant to the
matter at issue. [T]the evidence is sufficient to support
a jury finding that . . . Dr. Schwartz committed this similar
act. [T]he probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice[.]

[¶30.] The trial court ultimately limited the admissible evidence to Dr.

Schwartz’s testimony to the three aforementioned questions, the wording of which

was precisely crafted. The parties were further instructed that Dr. Schwartz could

answer each question “yes or no.”

[¶31.] Dr. Schwartz’s other surgeries, from which the other-acts evidence was

derived, were similar in kind and close in time to Kostel’s surgery. Further, by his

own admission, Dr. Schwartz made mistakes during those other surgeries. From

Dr. Schwartz’s affirmative answers to the three questions, there was sufficient

evidence to reasonably conclude that the jury could find that he had made prior

mistakes. Given Dr. Schwartz’s defense that the expansion of the preoperative

scope of the procedure was attributable to an intraoperative diagnosis of more

extensive pathology requiring treatment, the evidence entered for purposes of

showing his knowledge and skill was not unduly prejudicial to Dr. Schwartz.

Rather, it went to establishing Kostel’s claim that the two additional fusions,

beyond the consented-to L4-L5, were performed in error due to his lack of

-18-
#24244, #24254

competency. Therefore, we find that the trial court did not abuse its discretion

when it permitted Kostel to ask the three questions and admitted Dr. Schwartz’s

answers pursuant Rule 404(b).

Instruction Limiting The Application of Rule 404(b) Evidence.

[¶32.] “[W]e review the wording and inclusion of individual jury instructions

as well as the overall arrangement of instructions under the abuse of discretion

standard.” Veith v. O’Brien, 2007 SD 88, ¶25, 739 NW2d 15, 23 (citing Vetter v.

Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶10, 711 NW2d 612, 614 (citations

omitted)). However, reviewing their correctness in toto and whether the jury was

properly instructed overall, we apply the de novo standard. Id. (citing Vetter, 2006

SD 21, ¶10, 711 NW2d at 614 (citations omitted)).

[¶33.] Dr. Schwartz objected to Instruction No. 14, which limited the scope of

the jury’s consideration of Dr. Schwartz’s answers to the aforementioned three

questions. Instruction No. 14 provided as follows:

The evidence that Dr. Schwartz allegedly had difficulty
with or misread radiographic images on occasions separate
from his care and treatment of the plaintiff, and that on
occasion separate from his care and treatment of plaintiff
operated at a level not consented to, was received only
for limited purposes. You may consider this evidence for
the purpose of determining whether Dr. Schwartz had
the requisite knowledge and skill required of a neurosurgeon
to read and interpret the radiographic images in this case.
You may not consider it for any other purpose.
Specifically, you may not infer that because Dr. Schwartz
allegedly had difficulty with or misread radiographic images
on occasions separate from his care of plaintiff or operated
at a level not consented to that he acted in the same manner
in treating plaintiff. Keep in mind as well that the fact
that it is alleged that a person may have acted in a wrongful
manner on a separate occasion is not evidence of any kind
that the person has acted wrongfully in the matter at issue.

-19-
#24244, #24254

You should not, as a matter of law and as a matter of
fundamental fairness, assume in any way that Dr. Schwartz
is or might be liable for medical malpractice simply because
it has been alleged that he had difficulty with or misread
radiographic images involving other individuals or operated
at a level not consented to on entirely different occasions.

(Emphasis added).

[¶34.] Initially, Dr. Schwartz argues that the trial court erred by offering

Instruction No. 14 without his request. In support of his argument, he cites

Wangsness v. Aldinger, 1999 SD 103, 598 NW2d 221 and Hall v. Commonwealth of

Kentucky, 817 SW2d 228 (Ky 1991). However, these cases do not support his

proposition. The proposition they do support is that where the appellant does not

request the limiting instruction at trial and the trial court does not sua sponte give

the instruction, the appellant cannot claim error on appeal. See Wangsness, 1999

SD 103, ¶20, 598 NW2d at 228; see also Hall, 817 SW2d at 229. Finding no error

where no instruction was given and none was requested does not logically equate

with a claim of error were an instruction is given and none was requested. Failure

to cite relevant supporting authority is a violation of SDCL 15-26A-60(6) 20 and is

deemed a waiver. State v. Boston, 2003 SD 71, ¶27, 665 NW2d 100, 109 (failure to

cite relevant authority on point). Therefore, we need not address this argument.

[¶35.] Dr. Schwartz next argues that Instruction No. 14 is erroneous because

it is not supported by the evidence. See Van Zee v. Sioux Valley Hosp., 315 NW2d

20. SDCL 15-26A-60(6) provides in pertinent part:

[A]n argument shall contain the contentions of the party with
respect to the issues presented, the reasons therefore, and
the citations to the authorities relied on.. . .

-20-
#24244, #24254

489, 492 (SD 1982) (reiterating that a trial court may present to the jury, by way of

instruction, only those issues that are supported by evidence in the record). We

need not expand on our prior Rule 404(b) analysis except to say that Dr. Schwartz’s

affirmative answers to the three other-act questions sanctioned by the trial court,

see supra ¶26, were sufficient for the trial court to reasonably conclude that the jury

could find he had made prior mistakes and that the jury could thereby consider

evidence of those prior mistakes in evaluating the degree of knowledge and skill he

possessed. Accordingly, we conclude that the instruction was sufficiently supported

by the evidence and properly limited the scope for which it could be considered to

the aforementioned purpose.

[¶36.] Finally, Dr. Schwartz submits that Instruction No. 14 created an

additional standard of care that he was required to provide Kostel. Moreover,

despite the clear limitation that the instruction placed on the manner in which the

jury could consider his response to the three other-act questions, acknowledging

that in prior surgeries he had misread X-rays and had conducted procedures in

areas of patients’ spines beyond patient consent, Dr. Schwartz alleges that the

instruction suggested that the jury could consider his response as evidence of

negligence in the instant case. We disagree. The standard of care applicable to the

determination of negligence was given to the jury with Instruction No. 12, which

provided: “A neurosurgeon is negligent if he fails to exercise the level of skill,

knowledge, and care in diagnosis and treatment that other reasonably careful

neurosurgeons would possess and use in similar circumstances.” (Emphasis added).

Instruction No. 13 informed the jury how it could make the determination of

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whether Dr. Schwartz had applied the standard of care. “You must decide whether

Dr. Schwartz possessed and used the knowledge, skill, and care which the law

demands based on the testimony and evidence of members of the profession who

testified as expert witnesses.” 21 Instruction No. 14 then provided other-act

evidence as an additional basis upon which the jury could consider for the very

narrow purpose of determining “whether Dr. Schwartz had the requisite knowledge

and skill . . . to read and interpret radiographic images. . . .”

[¶37.] Since Instruction No. 14 was supported by Rule 404(b) evidence, and

carefully limited the scope for which that evidence could be considered, we find no

abuse of discretion in the trial court’s inclusion of this instruction. See Veith, 2007

SD 88, ¶25, 739 NW2d at 23. Moreover, when read in context with other related

instructions, we conclude that the jury was properly instructed overall.

[¶38.] 3. Whether the trial court abused its discretion
when it refused to admit an anonymous letter
sent to Kostel, the author of which was a
competitor of Dr. Schwartz’s and non-testifying
expert for Kostel.

[¶39.] On or about April 3, 2002, Kostel received an anonymous letter. The

typewritten message stated the following:

What happened to you in surgery was real bad. They are
trying to cover it up. They told us all yesterday at work
not to talk about anything that happens in the operating
room. These things shouldn’t have to happen. I copied
this add [sic] form [sic] the phone book. This man has

21. Dr. Schwartz also alleges that the trial court abused its discretion when it
gave Instruction No. 13. However, we also disagree with this assertion,
which we will address in Issue 4.

-22-
#24244, #24254

helped my friends. Don’t tell anybody about this letter
I need my job and don’t want to lose it.

The referenced “add,” included in the envelope, was from a Yellow Pages

advertisement for a personal injury attorney in Rapid City.

[¶40.] Larry Teuber, M.D., a Rapid City neurosurgeon, ultimately admitted

to being the author of the letter. 22 Dr. Teuber had had no contact with Kostel prior

to sending the anonymous letter and knew nothing of her condition at that time

other than that he had heard from his associate, Edward Seljeskog, M.D., that a

procedure conducted on an unnamed individual had taken longer than expected on

March 8, 2002. Teuber admitted that he wrote the letter in such a way as to make

it appear as though it had been written by a nurse or a scrub technician. Once he

completed the letter and stuffed it in an envelope along with the Yellow Pages

advertisement, he had his office secretary address it in her handwriting, and place

it in the mail.

[¶41.] Kostel sought a second opinion from orthopedic surgeon, Rand

Schleusener, M.D., whom she first saw and began treating with on September 24,

2002. At the request of plaintiff’s counsel, Kostel was examined by Dr. Teuber on

one occasion on November 26, 2002. In addition to his examination, he reviewed a

series of Kostel’s MRIs dating from 1995 to 2001. Dr. Teuber drafted a report

summarizing his findings from the examination. In this report, which was entered

22. Including the letter to Kostel, Dr. Teuber admitted to sending four
anonymous letters to patients of Dr. Schwartz. See Dan Daly, Black Hills
Surgery Center physician’s practice suspended for 90 days, Rapid City
Journal, section A, pg 1, September 13, 2005.

-23-
#24244, #24254

into evidence at trial, Dr. Teuber stated that while there was a distinct

degeneration of the L4-L5 segment, the L3-L4 segment was “the only normal disc in

her back” and further, that “[t]here is only a very minimal amount of degenerative

change of the L5-S1 disc.” Dr. Schleusener reviewed Dr. Teuber’s report and spoke

to him about Kostel’s condition. In December 2002, Dr. Schleusener performed an

anterior interbody fusion with femoral allograft spacer 23 in the L5-S1 segment to

improve stability in this area near the base of Kostel’s spine. 24

[¶42.] Kostel filed her complaint on February 14, 2003, and therein made

several references to the anonymous letter. Prior to trial, Kostel filed an amended

complaint in which she deleted all references to the anonymous letter. Neither Dr.

Teuber nor Dr. Seljeskog was called to testify at the trial.

23. An allograft is “[t]he transplant of . . . tissue from one individual to another .
. . .” http://www.medterms.com/script/main/art.asp?articlekey=30941 (last
visited August 8, 2008). This is in contrast to an autograft, which is “[t]issue
transplanted from one part of the body to another in the same individual.”
http://www.medterms.com/script/main/art.asp?articlekey=40486 (last visited
August 8, 2008). Dr. Schleusener testified that he removed the disk from the
L5-S1 segment of Kostel’s spine and replaced it with a bone graft called a
“femoral allograft spacer.” He described the spacer as “a piece of femur that’s
cut into the shape of a wedge-shaped donut from [a] cadaver.”

24. At trial, Dr. Schleusener testified that an anterior interbody fusion is a fusion
performed on the front of the spine. He stated that at least one pedicle screw
that Dr. Schwartz had placed in the sacrum was not seating properly. He
indicated that the sacrum differs from the other spinal bones in that the bone
material in the sacrum does not make as secure an anchorage for screws and
suggested that the problem with the screw that was not seating properly may
have been attributable to the long, three-segment fusion that Dr. Schwartz
had performed on Kostel from L3-L4 to L5-S1, the entire span of which was
being anchored at the sacrum.

-24-
#24244, #24254

[¶43.] Dr. Schleusener continued to treat Kostel through the time of the trial,

and along with Quentin Durward, M.D., a neurosurgeon from Dakota Dunes, South

Dakota, they testified as plaintiff’s experts at trial. Both testified that the L4-L5

segment, to which Kostel had consented to surgery, was an appropriate candidate

for fusion at the time Dr. Schwartz operated on Kostel. They also testified that the

L3-L4 segment was not in need of treatment and that there was no medical reason

to remove the disk there and fuse that segment. In addition, they agreed that there

had been no preoperative need to perform the fusion at L5-S1.

[¶44.] On May 26, 2006, the trial court issued an order suppressing Dr.

Teuber’s anonymous letter and the Yellow Pages advertisement, following Kostel’s

motion and brief in support thereof in which she argued that said items should be

precluded for lack of relevance. See supra n17 (citing SDCL 19-12-1 (Rule 401)) and

n18 (citing SDCL 19-12-2 (Rule 402)). Dr. Schwartz asserts that this was error and

that the letter was relevant and should have been admissible.

[¶45.] First, Dr. Schwartz argues that the anonymous letter had relevancy to

why Kostel lost trust in him. Second, he contends that the letter could have been

used to refute Dr. Teuber’s November 26, 2002 examination report. Finally, he

alleges that Dr. Teuber was motivated out of deep personal animus stemming from

his position as a competitor of Dr. Schwartz’s. Dr. Schwartz also cites the fact that

Dr. Teuber and Dr. Schleusener are part owners of the Black Hills Surgical Center.

Coupled with the fact that Dr. Schleusener reviewed Dr. Teuber’s findings and

spoke with him prior to performing his own procedure on Kostel, Dr. Schwartz

-25-
#24244, #24254

contends that Dr. Schleusener was influenced by Dr. Teuber and that the letter was

relevant to put that influence into context.

[¶46.] We find these arguments to be attenuated and see no reason to disturb

the trial court’s decision regarding this discretionary decision. The record reflects

that Kostel was suffering from postoperative distress to a degree significant enough

to justify seeking another opinion notwithstanding her receipt of the anonymous

letter. Moreover, we fail to see the manner in which the letter could have served to

refute Dr. Teuber’s examination report or undermine Dr. Schleusener’s testimony.

Beyond the fact that their concurring opinions about Kostel’s condition were

corroborated at trial by an unrelated physician from the other end of the state, Dr.

Schleusener commenced a long-term, medical-care relationship with Kostel during

which he made his own diagnoses and conducted his own procedures. It is hard to

conceive how the anonymous letter would have in someway shown that Dr.

Schleusener subordinated his own judgment in the treatment of Kostel by

succumbing to animus motivated influence by Dr. Teuber.

[¶47.] 4. Whether the trial court abused its discretion
by the inclusion of jury instructions objected
to by Dr. Schwartz and the denial of others that
he requested.

[¶48.] Dr. Schwartz alleges numerous examples of reversible error in the

selection of jury instructions.

Requested Instruction No. 13

[¶49.] In addition to the preoperative diagnosis of a degenerative vertebral

segment at the L4-L5 location in Kostel’s spine for which she had consented to

fusion surgery, Dr. Schwartz avers that he discovered additional pathology

-26-
#24244, #24254

requiring treatment once surgery had commenced. As such, he asserts that he did

not breach the applicable standard of care by expanding the preoperative scope of

the procedure to include additional treatment. He, therefore, argues that he was

unduly prejudiced when the trial court refused him the following “error in

judgment” instruction:

A physician 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
as defined in these instructions.

[¶50.] We recently explained in Papke v. Harbert, 2007 SD 87, ¶50 n15, 738

NW2d 510, 527 n15 that in the medical malpractice setting this instruction is only

to be given when the physician is presented with multiple treatment options that

are viewed as acceptable in the subject field of practice. We also emphasized that

even in this limited area of application, an error-in-judgment instruction cannot

propose that the physician may commit mere error or mistake and not be liable. Id.

[¶51.] This case does not present an appropriate application for the requested

instruction. The issue here was not whether Dr. Schwartz erred in choosing one of

multiple acceptable methods to treat Kostel’s spine. The issue was whether he

negligently made a mistake by fusing two vertebral segments that did not need to

be fused. Accordingly, the trial court was correct in refusing Dr. Schwartz’s

requested instruction.

-27-
#24244, #24254

“Unfortunate or Bad Condition” Instruction

[¶52.] The trial court gave the following instruction designated as Instruction

No. 15:

A finding of negligence may not be based solely on evidence
of bad result to the claimant in question, but a bad result
may be considered by you, along with other evidence, in
determining the issue of negligence. You are the sole judges
of the weight to be given to this kind of evidence.

(Emphasis added). Dr. Schwartz contends that instructing the jury that it could

consider Kostel’s bad result along with other evidence in deciding whether Dr.

Schwartz had been negligent was an abuse of discretion under the circumstances.

In support of his position, he compares this Court’s analyses in Hansen v. Isaak, 70

SD 529, 19 NW2d 521 (1945) and Shamburger v. Behrens, 380 NW2d 659 (SD

1986).

[¶53.] In Hansen, this Court in effect characterized the factual circumstances

as a res ipsa loquitur case, where the presence of negligence speaks for itself

without the need for expert testimony to show a breach of the standard of care. 70

SD at 530, 19 NW2d at 522. Plaintiffs’ child was burned by a device that was

operated by and under the exclusive control of the defendant chiropractor at all

times relevant. While the plaintiffs submitted expert testimony at trial that when

the device of the type that injured the plaintiff was operated correctly no burn

would result, they offered no expert testimony as to the applicable standard of care

in operating such a device. Id. at 532, 19 NW2d at 523. The trial court entered a

directed verdict for the defendant. Id. at 531, 19 NW2d at 521.

-28-
#24244, #24254

[¶54.] Reversing the directed verdict, this Court concluded that “[t]he

character of the injury in connection with other facts and circumstances and the fair

inferences which the jury could draw from them constitute substantial credible

evidence and would have sustained a verdict for the plaintiff.” Id. at 534, 19 NW2d

at 523. In reaching this conclusion this Court set out the applicable rule in a case of

res ipsa loquitur:

“[W]hile the result alone is not, in itself, evidence of
negligence, yet same may nevertheless be considered,
together with other facts and circumstances disclosed
by the evidence in a given case in determining whether
or not such result is attributable to negligence or want
of skill.”

Id. at 533, 19 NW2d at 522 (quoting Berg v. Willett, 232 NW 821, 823 (Iowa 1930))

(citations omitted).

[¶55.] In Shamburger, the plaintiff underwent colon surgery and thereafter

his condition inexplicably deteriorated. 380 NW2d at 661. Eventually, it was

determined that the plaintiff had developed an abscess at the location where the

colon had been resected. Following the presentation of evidence at the trial on the

plaintiffs’ malpractice suit, the trial court instructed the jury as follows: “The fact

that an unfortunate or bad condition resulted to Plaintiff . . . during the care

afforded to him by Defendant . . . does not alone prove that Defendant . . . was

negligent.” 25 Id. at 663 n5 (emphasis added).

25. In the interest of clarity, we note that “Instruction No.7” from Shamburger,
cited in its entirety, provided in relevant part as follows:

If a board-certified general surgeon brings to his patient care,
skill and knowledge of the reasonable board-certified surgeon,
(continued . . .)
-29-
#24244, #24254

[¶56.] On appeal, the plaintiff in Shamburger argued that the instruction

was prejudicial and did not properly instruct the jury on causation without the

inclusion of language from the rule set out in Hansen – that his bad result was

some evidence in itself that could be considered with other evidence in the record in

determining whether the physician had been negligent. Id. at 663. This Court

affirmed the instruction given by the trial court based on the distinction between

the factual circumstances in Hansen and the case at bar. Id. at 664. Significant to

this Court was that unlike the injury in Hansen, the injury to the Shamburger

plaintiff “was not the type . . . which in and of itself could be evidence of negligence.”

Id. (emphasis added).

________________________
(. . . continued)
he is not liable to that patient for damages resulting from a good
faith error of judgment which he may have been guilty. 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. A board-certified surgeon is not an insurer of the
correctness of his judgment or the end result of his medical
treatment.

The fact that an unfortunate or bad condition resulted to
Plaintiff . . . during the care afforded to him by Defendant . . .
does not alone prove that Defendant . . . was negligent.

380 NW2d at 663 n5. (Emphasis added).

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 court’s inclusion of the “good faith error in judgment”
language in the first paragraph of Instruction No. 7. Id. at 663.

-30-
#24244, #24254

[¶57.] Returning to the instant case, Instruction No. 15 clearly allowed the

jury to consider Kostel’s bad result along with other evidence in reaching its finding

of negligence. Dr. Schwartz contends that the trial court should have given an

instruction similar to the Shamburger instruction because, as in Shamburger, this

too is a case in which negligence is not apparent without expert testimony and such

an instruction would have informed the jury that Kostel’s “bad result” was no

evidence of negligence.

[¶58.] However, Shamburger did not go that far. It is clear that while this

Court did not intend for a “bad result,” arising out of circumstances comparable to

Shamburger, to alone prove negligence, the Shamburger instruction does not

foreclose the jury from considering the “bad result” along with other evidence in

determining whether the defendant was negligent. See id. at 663; see also supra

¶55. Therefore, we find that the trial court did not abuse its discretion when it

instructed the jury that it could consider Kostel’s bad result along with other

evidence in determining whether Dr. Schwartz was negligent. See Kennelly v.

Burgess, 654 A2d 1335, 1370 (Md 1995) (in a case where plaintiff suffered brain

injury during an operation on his sinus cavity and experts disputed whether

defendant physician met the applicable standard of care, the court opined that

instructing the jury that “[a]n unsuccessful result following medical treatment is

not evidence of negligence” implying to the jury that the bad result was “no evidence

at all of negligence”) (emphasis added). As such, in Kennelly the court held that the

instruction was erroneous because the “well settled principle that no presumption

or inference of negligence arises from the bare happening of [a bad result]” meant

-31-
#24244, #24254

the bad result “may nonetheless be taken into consideration in assessing

negligence.” Id. at 1340-41 (citations omitted).

[¶59.] Moreover, we conclude that the jury was properly instructed overall in

this regard. While the jury was instructed that it could consider Kostel’s bad result

along with other evidence in reaching a finding that 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. See Williams v. Viswanathan, 64

SW3d 624 (TexCtApp 2001) (holding in a medical malpractice case where an alert

and responding, near-drowning victim died after receiving emergency room

treatment and the record reflected that there was dispute among experts whether

defendant physician had provided decedent with the applicable standard of care,

trial court did not abuse its discretion when it instructed the jury that while it could

not base a finding of negligence “solely on evidence of a bad result,” a bad result

could be considered “along with other evidence”); see also Kennelly, 654 A2d at 1343.

Instruction No. 13

You must decide whether Dr. Schwartz possessed and
used the knowledge, skill, and care which the law demands
based on the testimony and evidence of members of the
profession who testified as expert witnesses.

[¶60.] Dr. Schwartz objected to the trial court’s utilization of Instruction No.

13 arguing that it precluded the jury from considering the opinions and conclusions

of lay witnesses in determining whether Dr. Schwartz had met the applicable

standard of care. Specifically, Dr. Schwartz references his own “lay” testimony and

that of certified nurse practitioner Bonnie Miller and physician assistant Daryl

Sieg. Dr. Schwartz proposed Requested Instruction No. 11.

-32-
#24244, #24254

You must decide whether Dr. Schwartz used the skill and
care which the law demands based on the testimony and
evidence of neurosurgeons who testified as expert witnesses.

However, you are permitted to consider the opinions and
conclusions of lay witnesses on those subjects which are
within the common knowledge and comprehension of people
who have ordinary education, experience, and opportunity
for observation.

[¶61.] Dr. Schwartz argues that Magbuhat v. Kovarik, 382 NW2d 43, 46 (SD

1986) (citations omitted) supports the use of his proposed instruction over the

instruction that was given. In Magbuhat this Court reiterated the general rule that

“in medical malpractice cases that negligence must be established by the testimony

of medical experts,” because a verdict in a malpractice case cannot be based on

“speculation and conjecture.” In support of his proposed jury instruction, Dr.

Schwartz cites to the Court’s subsequent clarification in Magbuhat, “[t]he rule does

not exclude the opinions and conclusions of lay witnesses on subjects which are

within the common knowledge and comprehension of persons possessed of ordinary

education, experience and opportunity.” See id. (citations omitted). However, the

Court conditioned the extension of the rule for the inclusion of lay testimony on the

type of circumstance such as when “a physician operates on a patient’s knee, [and

then] the wrong knee [is] treated,” because under that kind of circumstance, “the

lay witness could establish [the error] without indulging in speculation and

conjecture or knowledge beyond a layperson’s realm.” Id. The complexity of

neurosurgery does not pose that kind of self-evident situation. See Block v. McVay,

80 SD 469, 476, 126 NW2d 808, 812 (1964), overruled on other grounds by

Shamburger, 380 NW2d at 663. We agree with the rationale of the trial court in

-33-
#24244, #24254

rejecting Dr. Schwartz’s Requested Instruction No. 11 in favor of Instruction No. 13,

because “no lay opinions and conclusions . . . were received or allowed in this case”

relevant to the issues before the jury. (Emphasis added).

Instruction No. 10

A legal cause is a cause that produces a result in a natural
and probable sequence, and without which the result
would not have occurred.

The legal cause need not be the only cause, nor the last
or nearest cause. A legal cause may act in combination
with other causes to produce a result. It is sufficient if
it occurs with some other cause acting at the same time,
which in combination with it causes the injury. However,
for legal cause to exist, you must find that the conduct
complained of was a substantial factor in bringing about
the harm.

(Emphasis added).

[¶62.] Dr. Schwartz argues that Instruction No. 10 was incomplete, without

expansion on the term “substantial factor.” He proposed an instruction that

included factors to consider in determining “substantial factor” from Restatement

(Second) of Torts, section 433 cited in Mulder v. Tague, 85 SD 544, 549-50, 186

NW2d 884, 887 (1971), where this Court adopted “substantial factor” as the

determination of whether an act is the proximate or legal cause for a plaintiff’s

damages. The Restatement factors for determining whether an act is a substantial

factor are as follows:

(a) the number of other factors which contribute in
producing the harm and the extent of the effect which
they have in producing it;

(b) whether the actor’s conduct has created a force or
series of forces which are in continuous and active
operation up to the time of the harm, or has created

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#24244, #24254

a situation harmless unless acted upon by other forces
for which the actor is not responsible;

(c) lapse of time.

Id. (quoting Restatement (Second) of Torts § 433).

[¶63.] Dr. Schwartz argues that, without setting out the above factors in an

instruction, the jury could not properly evaluate the significance of the role that the

surgery played in Kostel’s postoperative condition in the context of other factors

such as the degree of deterioration in her pre and postoperative physical condition

the state of her mental health, and the extent to which Dr. Teuber may have

exploited her mental health for his own ends by sending her the anonymous letter.

[¶64.] Dr. Schwartz does not cite any authority that would compel a trial

court to include the “substantial factor” evaluation instruction he proposed. In this

case we conclude that there was evidentiary support for the jury to find that the

surgery he performed on Kostel was a substantial factor in the postoperative

condition of her spine notwithstanding the other factors he cites. The record

reflects evidence to the effect that Kostel, although suffering discomfort in her back

and lower extremities from a degenerative L4-L5 vertebral segment, nonetheless

maintained full employment and a reasonably active lifestyle prior to surgery.

Kostel was forty-four years old at the time of the surgery. During the surgery,

where it had been originally intended that the L4-L5 segment would be fused, two

other segments were also fused. There was expert testimony that at least one of the

two additional segments that were fused required a follow-up procedure within nine

months. There was also expert testimony that adjacent vertebral segments

subsequently became involved due to repetitive contact with a rod that had been

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placed in Kostel’s spinal column during the initial surgery performed by Dr.

Schwartz. There was expert testimony that these adjacent vertebral segments

became involved to an extent during the four-year period following the March 8,

2002 surgery that Kostel ultimately had to have all of her lumbar vertebral

segments and several of her thoracic vertebral segments fused to the point that her

spine is now frozen from her tailbone to the middle of her shoulder blades.

[¶65.] We find no abuse of discretion in the settlement of Instruction No. 10

and that the jury was instructed properly overall in regard to “legal cause” and its

“substantial factor” prerequisite.

Credibility Instructions

[¶66.] Dr. Schwartz objected to the following instructions as insufficient on

the matter of witness credibility.

Instruction No. 5:

You may have heard the terms “direct evidence” and
“circumstantial evidence.” The law makes no distinction
between direct and circumstantial evidence. The jury
must simply determine the facts from the greater convincing
force of all the evidence in the case, both direct and
circumstantial.

You are the sole judges of all the facts and the credibility
of the witnesses.

(Emphasis added).

Instruction No. 7:

If you believe that any witness testifying in this case has
knowingly sworn falsely to any material matter in this case,
then you may reject all of the testimony of the witness.

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[¶67.] Dr. Schwartz argues that the jury also had to be instructed on how to

judge credibility. He cites State v. Hanley, 58 SD 191, 235 NW 516 (1931) and

Frazier By and Through Frazier v. Norton By and Through Norton, 334 NW2d 865

(SD 1983) in this regard. These cases, however, are not supportive. In Hanley, this

Court reviewed an instruction that was effectively the same as the “falsus in uno,

falsus in omnibus” Instruction No. 7, but for the addition of a clause at the end of

the instruction qualifying the basis under which the jury could disregard all of a

witness’s testimony – “in so far as you believe it to be false.” 58 SD at 193, 235 NW

at 517. This Court held that the additional qualifying phrase was erroneous

because it was the province of the jury to reject even witness testimony that it

believed to be true when it believed that at another time that witness testified

falsely. Id. at 194, 235 NW2d at 517-18. However, the Court held the erroneous

instruction was not reversible error because the trial court included an additional

instruction that informed the jury on how to assess credibility. Id. at 195, 235

NW2d at 518.

[¶68.] In Frazier, the appellants objected to the trial court’s rejection of their

proposed instruction designed to address witness credibility in regard to prior

inconsistent statements. 334 NW2d at 867. The trial court instead gave an

instruction on how to assess credibility. This Court held that the trial court’s choice

of instruction was not erroneous in the context of a falsus in uno, falsus in omnibus

instruction that was also given. Id. at 869.

[¶69.] It does not logically follow from the holdings in Hanley and Frazier

that Instruction Nos. 5 and 7 were incomplete or erroneous without an additional

-37-
#24244, #24254

instruction on how to assess credibility. We find no abuse of discretion in the trial

court’s refusal to instruct in this regard and infer that the court assessed the jury

competent to judge credibility without the additional instruction. 26

[¶70.] We conclude the jury was instructed properly overall and that Dr.

Schwartz has shown no basis on any of his charges of error upon which we could

decide there would have been a different outcome had the jury been instructed as he

proposed.

[¶71.] 5. Whether the trial court abused its discretion
by the sua sponte preclusion of evidence related
to Kostel’s history of psychiatric disorders.

[¶72.] Kostel had a history of psychiatric treatment for a variety of disorders

prior to the surgery. Kostel’s medical records indicated that she had received

counseling or treatment for anxiety, depression, post-traumatic stress disorder

stemming from abuse, suicidal tendencies, self-destructive behavior, and multiple

26. While we find no error with the trial court’s selection of jury instructions
pertaining to witness credibility, in the future claims of error in this regard
could largely be avoided by the inclusion of an instruction similar to South
Dakota Pattern Jury Instruction (SDPJI) 2-01. SDPJI 2-01 provides:

You are the sole judges of all facts and credibility of witnesses. 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.

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personality disorder. Kostel also had made several attempts at suicide and had

been prescribed several forms of psychotropic medication.

[¶73.] When Kostel began consultation with Dr. Schwartz she completed a

patient-intake form on which she indicated that she had a history of anxiety, but no

other psychiatric conditions. At the time of the March 8, 2002 surgery, Dr.

Schwartz was not aware of Kostel’s history of other psychiatric disorders. 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. Schwartz’s claims of error as they relate to

liability and damages.

Liability

[¶75.] Dr. Schwartz claims that evidence of the full extent of Kostel’s history

of psychiatric disorders would have revealed other factors that were responsible for

her postoperative condition. Dr. Schwartz cites the respective depositions of Drs.

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. He also cites the offer of proof in this regard provided by defense expert

Dr. Mark Eichler. Dr. 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 trial court told defense counsel that he would

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have to make a satisfactory offer of proof before any such testimony would be

allowed. To this end, defense counsel offered the testimony of his last witness, Dr.

Eichler, who was familiar with and had conducted presentations on the affects of

psychiatric health on patient recovery. The trial court conducted a Daubert hearing

during which Dr. Eichler presented medical literature and other information about

selection of surgical candidates and their expected surgical outcomes based in part

on their psychological profiles.

[¶77.] The trial court rejected the offer of proof finding that Dr. Schwartz had

failed to show that a neurosurgeon was qualified as an expert under SDCL 19-15-2

(Rule 702) 27 to testify about psychological disorders. The court also concluded that

the supporting literature was not satisfactory to meet the Daubert standard applied

in South Dakota. 28 Moreover, the court stated that Dr. Schwartz’s previously

27. Rule 702 codified under SDCL 19-15-2 provides:

If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise.

28. The standard for determining whether an expert’s theory or method qualifies
as scientific, technical, or specialized knowledge requires application of the
following nonexclusive list of factors for assessing admissibility at trial:

(1) whether the method is testable or falsifiable;
(2) whether the method was subjected to peer review;
(3) the known or potential error rate;
(4) whether standards exist to control procedures for the method;
(5) whether the method is generally accepted;
(6) the relationship of the technique to methods that have been
established as reliable;
(7) the qualifications of the expert; and
(8) the non-judicial uses to which the method has been put.
(continued . . .)
-40-
#24244, #24254

unannounced intention to have Dr. Eichler opine at a Daubert hearing about

psychological aspects of surgical recovery was not timely noticed and denied Kostel

an opportunity to discover Dr. Eichler’s basis. See Peters v. Hoisington, 72 SD 542,

552, 37 NW2d 410, 415 (1949) (opining that when deciding whether to allow an

expert to testify, the trial court has broad discretion to take into consideration how

much notice the adverse party has been provided so as to “guard against surprise

and to enable an adversary to investigate the professional standing of the proposed

expert witness”).

[¶78.] In regard to Dr. Schwartz’s claim that the suppressed evidence had

impeachment value, he argues that a former co-worker of Kostel’s would have

offered testimony about “black-outs” that Kostel allegedly told the co-worker she

had experienced that were attributable to her multiple personality disorder.

However, Dr. Schwartz offered no authoritative evidence on multiple personality

disorder or how it may have affected Kostel’s perceptions and recollections.

[¶79.] “[A] trial judge must ensure that an expert’s testimony rests on both a

‘reliable foundation and is relevant to the task at hand.’” Rogen v. Monson, 2000

SD 51, ¶13, 609 NW2d 456, 459 (quoting State v. Hofer, 512 NW2d 482, 484 (SD

1994 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt

2786, 125 LE2d 469 (1993))). When ruling on the admissibility of expert opinion,

the trial court must function as a gatekeeper. Id. (quoting Kuper v. Lincoln-Union

________________________
(. . . continued)
State v. Guthrie, 2001 SD 61, ¶35, 627 NW2d 401, 416 (citing Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 US 579, 593-95, 113 SCt 2786, 2796-
98, 125 LE2d 469 (1993)).

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#24244, #24254

Elec. Co., 1996 SD 145, ¶41, 557 NW2d 748, 760). In this regard the trial court’s

discretionary authority is broad. Wells v. Howe Heating & Plumbing, 2004 SD 37,

¶16, 677 NW2d 586, 592 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 US 137,

152, 199 SCt 1167, page, 143 LEd2d 238 (1999)).

[¶80.] We can infer from the record that the trial court had great concern

about the probative value of Kostel’s history of psychiatric disorders as balanced

against the prejudicial effect of admitting such evidence of uncertain relevance.

The court appears to have decided on a compromise by allowing Dr. Schwartz to

inquire into her history of anxiety and depression. However, the record reveals that

the trial court, after reviewing the respective depositions of the neurosurgeons, the

literature provided by the defense, and after conducting a Daubert hearing, was

unconvinced as to the relevance of Kostel’s psychiatric disorders in relation to her

surgical recovery or the qualifications of the neurosurgeons to provide testimony in

that regard.

[¶81.] Moreover, we would point out that the evidence of Kostel’s psychiatric

disorders would have involved disclosure of hundreds of pages of material otherwise

covered under the therapist-patient privilege. Confidentiality is the sine qua non of

that relationship. State v. Herendeen, 613 SE2d 647, 649 (Ga 2005) (citing Jaffee v.

Redmond, 518 US 1, 10-11, 116 SCt 1923, 1928, 135 LEd2d 337 (1996)). “Effective

psychotherapy . . . depends upon an atmosphere of confidence and trust in which

the patient is willing to make a frank and complete disclosure. . . .” Jaffee, 518 US

at 10, 116 SCt at 1928, 135 LE2d 337. “It is difficult if not impossible for

psychotherapists to function without being able to assure patients of confidentiality

-42-
#24244, #24254

and, indeed, privileged communication.” Desclos v. S. New Hampshire Med. Ctr.,

903 A2d 952, 956-57 (NH 2006). This is not intended to say that there is never a

place for discovery and disclosure of a party’s confidential psychological health

information, but merely that the trial court, before sanctioning such discovery and

disclosure, consider thoroughly and proceed with great care so as not to open that

door for an inappropriate purpose. Finally, we think it worthy to emphasize that

the issue of whether Dr. Schwartz was negligent in this case did not turn on

Kostel’s psychiatric health or lack thereof, but rather on whether he provided the

applicable standard of care in conducting the surgical procedure. Accordingly, on

the issue of liability we find no abuse of discretion in the trial court’s refusal to

allow Dr. Schwartz’s inquiry into Kostel’s history of psychological disorders.

Damages

[¶82.] Dr. Schwartz also argues that evidence of Kostel’s history of

psychological disorders was relevant on the issue of damages. Dr. Schwartz avers

that had the bulk of the psychological evidence been admitted it would have been

apparent that the quality of Kostel’s life prior to surgery was less than she, her lay

witnesses, and plaintiff’s counsel during closing argument claimed it to be.

[¶83.] Where physical pain and suffering absent mental anguish impairs the

enjoyment of life, the mere fact a plaintiff’s complaint references loss of enjoyment

of life is not a basis upon which to place that plaintiff’s mental or emotional state at

issue. Garbacik v. Wal-Mart Transp., LLC, 932 So2d 500, 504 (FlaCtApp 2006). “In

the event that the plaintiff’s claim for loss of enjoyment is limited solely to the

physical effects of the defendant[’s] alleged malpractice, then questioning regarding

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#24244, #24254

the plaintiff’s mental state would be improper.” Mora v. Saint Vincent’s Catholic

Med. Ctr., 800 NYS2d 298, 302 (NYSupCt 2005).

[¶84.] There was evidentiary support for plaintiff’s counsel’s summary during

closing argument to the degree of activity to which Kostel was accustomed in her

life before Dr. Schwartz performed surgery on her on March 8, 2002.

She had fun, she rode horses, and she enjoyed life. . . .
She played with her kids, she was the soccer mom, she
kicked the ball around[. N]ot even two weeks before the
surgery, she’s down on the floor, playing with her grandchild.

[¶85.] Evidence was presented at trial that because Kostel’s spine has been

fused from tailbone to shoulder blades, Kostel, who is now forty-eight years old with

Bachelor’s and Master’s degrees in social work, is unable to work and resides in an

assisted living facility for the elderly. She takes a variety of pain medications and

requires assistance with such routine daily activities as preparing her meals and

vacuuming her apartment.

[¶86.] The basis upon which Kostel claimed damages was grounded not on

the difference between her psychological state before and after surgery, but on the

difference between being able to function as a reasonably fit person before surgery

and being nearly incapacitated by the time of trial. We find no abuse of discretion

in the trial court’s refusal to allow inquiry into Kostel’s history of psychological

disorders for purposes of the jury’s assessment of damages.

[¶87.] 6. Whether the trial court erred when it excluded
evidence that portions of Kostel’s medical bills were
“written off” pursuant to federal laws governing the
billing of Medicare beneficiaries.

[¶88.] Before trial, the court denied Dr. Schwartz’s motion to preclude Kostel

from claiming damages for that portion of her medical expenses that were “written
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#24244, #24254

off” by her healthcare service providers in accordance with their agreements with

Medicare, whereby charges to Medicare recipients are limited. Kostel’s billed

medical charges totaled $210,219.00. The amount actually paid in satisfaction of

the billed charges less Medicare “write offs” was $94,727.41. Dr. Schwartz argues

that the trial court allowed Kostel a windfall of $115,491.59 by precluding

disclosure of the “written off” portion of the medical charges.

[¶89.] Until recently, there was a question as to whether South Dakota’s

collateral source rule that this Court recognized in Moore v. Kluthe & Lane Ins.

Agency Inc., 89 SD 419, 234 NW2d 260 (SD 1975) applied to Medicare “write offs.”

In that case this Court held “[t]otal or partial compensation received by an injured

party from a collateral source, wholly independent of the wrongdoer, does not

operate to reduce the damages recoverable from the wrongdoer.” Id. at 434, 234

NW2d at 269 (citations omitted). We settled this matter in Papke, 2007 SD 87, ¶¶

79-80, 738 NW2d at 536. While reiterating our settled law “that plaintiffs are

entitled to recover the reasonable value of their medical services, and what

constitutes a reasonable value for those services is a jury question[,]” we held that

the collateral source rule applies to Medicare “write offs” such that the jury’s

determination of the reasonable value of medical services shall begin with the

amount of medical service billed, before any Medicare “write off.” Id. ¶78, 738

NW2d at 535. As such, we find no error in the trial court’s decision to allow Kostel

to present those amounts for the jury’s consideration.

[¶90.] 7. Whether the trial court abused its discretion
by denying Kostel’s request for a jury
determination on her claim for punitive damages.

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#24244, #24254

[¶91.] Kostel argues that the character of the harm inflicted upon her by Dr.

Schwartz was such that punitive damages were in order and that the jury should

have been instructed as to that option. Before a punitive damages claim can be

submitted to the jury “a reasonable basis to believe that there has been willful,

wanton or malicious conduct on the part of the party claimed against” must be

shown by “clear and convincing evidence[.]” SDCL 21-1-4.1 In other words, the

claimant must make “a prima facie showing that punitive damages may be in

order.” Flockhart v. Wyant, 467 NW2d 473, 475 (SD 1991) (emphasis in original).

While there was sufficient evidence in this case to support a jury finding of

negligence warranting compensatory damages, we find no basis upon which to

conclude Dr. Schwartz’s conduct in treating Kostel rose to a level that would have

justified sending the issue of punitive damages to the jury. Therefore, we find no

abuse of discretion in the trial court’s decision denying Kostel’s request for a jury

instruction on punitive damages.

[¶92.] Affirmed.

[¶93.] MEIERHENRY, Justice, and HOFFMAN, Circuit Judge, concur.

[¶94.] ZINTER, Justice, and WILBUR, Circuit Judge, concur specially.

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

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

disqualified.

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#24244, #24254

ZINTER, Justice (concurring specially).

[¶97.] I concur and write on Issue 5 regarding the trial court’s partial

exclusion of evidence relating to Kostel’s mental health. 29 I agree with the Court’s

affirmance of the trial court’s decision to deny Dr. Schwartz’s requested use of all of

Kostel’s mental health history. I write to explain my view of this issue, including

additional factual support for our decision. I also write to explain my view of the

Court’s discussion regarding the interplay of privilege on the issues.

[¶98.] On the issue of liability, which involves Kostel’s ability to physically

heal after the surgery, I would hold that the lack of notice alone justified the

preclusion of Dr. Eichler’s testimony. With respect to other requested uses of her

mental health history with respect to liability, 30 I would hold that absent a

foundational showing of a relationship between the precluded evidence and her

ability to physically heal, the trial court did not abuse its discretion.

[¶99.] With respect to the related matter of privilege, the Court’s suggestion

that some of Kostel’s history may have been excluded by the therapist-patient

privilege should, in my view, be read narrowly. See supra ¶81. I agree that because

Dr. Schwartz failed to prove that Kostel’s mental health history was relevant to

liability, it was protected by the privilege with respect to that issue. See SDCL 19-

29. Although Dr. Schwartz complains that he was not able to pursue some
mental health history issues he raised in opening statement, informing a jury
that certain evidentiary matters will be produced is always subject to
subsequent admissibility determinations by the trial court.

30. The medical evidence on this issue reflected that significant mental health
issues may make it more complicated or difficult to treat a patient.

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#24244, #24254

13-11 (only requiring a waiver of the therapist-patient privilege when the evidence

is relevant to an issue of the physical, mental or emotional condition of the patient

in any proceeding in which the patient relies upon the condition as an element of

her claim or defense); SDCL 19-2-3 (only requiring a waiver of the privilege when

the physical or mental health of any person is in issue). Because Kostel’s mental

health history was not shown to be relevant to her ability to physically heal, it may

have been privileged 31 with respect to liability. Nevertheless, in my view it was

admissible to the extent it was relevant to the damage issue discussed below. See

Maynard v. Heeren, 1997 SD 60, ¶11, 563 NW2d 830, 834-35 (concluding that even

if the emotional and mental state of a plaintiff is not an element of the plaintiff’s

causes of action, mental condition is not privileged when relevant to the question of

damages).

[¶100.] With respect to damages, Kostel sought to be compensated for loss of

enjoyment of life due to her physical disabilities caused by Dr. Schwartz’s

treatment. Although Kostel claimed that her mental health history was irrelevant

to this narrow claim, 32 she is mistaken because the record reflects that the non-

physical aspects of her loss of enjoyment of life claim could have been caused or

31. Privilege does not appear to be a basis for the trial court’s decision, and it
was not briefed on appeal. Consequently, in my view, the Court’s discussion
of this issue is dictum.

32. Kostel dropped her pleaded claims for emotional distress and mental
anguish. Dr. Schwartz did not offer evidence reflecting that the disallowed
portions of Kostel’s mental health history affected her credibility by
illuminating her powers of perception and ability to testify with accuracy.

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#24244, #24254

exacerbated by her mental health problems. 33 Therefore, some of Kostel’s mental

health history was relevant and admissible with respect to her claimed inability to

enjoy life. See id.

[¶101.] The trial court recognized the relevancy of this evidence on the issue of

damages, but carefully excluded those portions of Kostel’s history that were

irrelevant and overly prejudicial. For example, on numerous occasions the court

explained that it was allowing Kostel’s history of depression and anxiety as relevant

to the claimed loss of enjoyment of life, but the court did not allow evidence of

blackouts, post-traumatic stress syndrome, suicide, and multiple personality

disorders that related to childhood sex abuse. 34 Thus, the court allowed evidence of

Kostel’s hospitalizations reflecting a lengthy history of depression and anxiety, one

of which reflected recurrent and severe depression, despondency, panic attacks,

33. The Court mistakenly relies on Garbacik v. Wal-Mart Transp., LLC, 932
So2d 500, 504 (FlaDistCtApp 2006) (stating that the mere allusion to loss of
enjoyment of life, without more, does not place the mental or emotional
condition of the plaintiff at issue so as to waive the medical privilege) and
Mora v. Saint Vincent’s Catholic Med. Ctr. of New York, 800 NYS2d 298, 302
(2005) (stating that in the event the plaintiff’s claim for loss of enjoyment of
life is limited solely to the physical effects of defendants’ alleged malpractice,
then questioning regarding the plaintiff’s mental state would be improper).
See supra ¶83. Unlike those cases, Kostel’s claim for loss of enjoyment of life
was not limited solely to physical effects of Kostel’s surgery. She claimed
that as a result of those physical effects, she was unable to have “fun”
enjoying recreation and family activities. See supra ¶84. Therefore, like our
decision in Maynard, Kostel’s history of depression and anxiety was
admissible on the damage claim. See Maynard, 1997 SD 60, ¶11, 563 NW2d
at 834-35.

34. Some of the proffered evidence was remote in time. The court also
determined that Dr. Schwartz’s medical literature did not provide the
necessary causative link under Daubert and Rule 702 to allow neurosurgeon
testimony with respect to suicide and multiple personality disorders.

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#24244, #24254

psychotropic drug prescriptions, and a depressed mood with variable difficulties

with concentration, sleep, and appetite. Another example of admitted evidence

included a 1998 hospitalization for progressively worsening depression, classified as

“recurrent major depression, severe.” Considering the evidence that was allowed,

the overly prejudicial effect of the excluded evidence, the lack of foundation on the

excluded evidence, and this Court’s deferential standard of review, the trial court

did not abuse its discretion in excluding some of Kostel’s mental health history.

[¶102.] WILBUR, Circuit Judge, joins this special writing.

-50-

GILBERTSON, Chief Justice.
[¶ 1.] Patricia Kostel (Kostel) filed suit against Dr. 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 May 30 through June 8, 2006, in the South Dakota Seventh Judicial Circuit. The jury entered a verdict for Kostel and on June 27, 2006, the trial court entered a judgment on the verdict. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In March 2002, Kostel consulted with Dr. Schwartz, a Rapid City, South Dakota, neurosurgeon, in regard to a back problem. Following an examination of Kostel and review of her medical records, Dr. Schwartz recommended that she undergo a one-level spinal fusion at the L4-L51 vertebral segment. The procedure was to involve an L4 laminectomy2 and L4-L5 discectomy3 using posterior lumbar interbody fusion4 with pedicle screws.5 *368Dr. Schwartz operated on Kostel on March 8, 2002. In addition to the anticipated fusion at the L4-L5 segment, Dr. Schwartz performed fusions at the L3-L4 and L5-S16 segments as well.

[¶ 3.] Following her surgery, Kostel received an anonymous letter, ostensibly written by a surgical nurse or operating room or scrub technician, which alleged that serious problems had occurred during the surgery.7 The letter suggested that Kostel seek legal recourse against Dr. Schwartz and included referrals and Yellow Page advertisements for local attorneys practicing in the field of medical malpractice. Kostel ultimately filed suit against Dr. Schwartz alleging negligence in the performance of her surgery, and that the surgery exceeded the scope of the L4-L5 fusion to which she had given consent.

[¶ 4.] During the jury trial the parties disputed why the surgery went beyond its preoperative scope. Kostel alleged that Dr. Schwartz became “lost in her spine” and mistakenly performed unnecessary fusions in addition to the consented-to, L4-L5 fusion. Kostel elicited testimony from Dr. Schwartz that in the fourteen months prior to her surgery, he had misread X-rays and had conducted surgery at uncon-sented-to levels. Her suit against Dr. Schwartz, supported by expert testimony, was founded on the claim that such was the case with her procedure and that he had consequently breached the standard of care to which she was entitled.

[¶ 5.] Dr. Schwartz testified that the preoperative examination and X-rays did not reveal problems in the L3-L4 and L5-S1 segments. 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. Dr. 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 $551,962.96. Kostel moved for additur, or in the alternative, a new trial on damages. Dr. Schwartz responded and moved for a new trial. 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. Dr. Schwartz raises six issues on appeal:

1. Whether the trial court abused its discretion when it precluded Dr. Schwartz from testifying to his training, experience and knowledge without opening the door to the dis*369closure of other allegations of malpractice and associated disciplinary proceedings.

2. Whether the trial court abused its discretion when it allowed Kostel to elicit testimony from Dr. Schwartz pertaining to alleged “other acts” and when the court gave the jury an instruction limiting the applicability of the testimonial evidence obtained during this line of questioning.

3. Whether the trial court abused its discretion when it refused to admit an anonymous letter sent to Kostel, the author of which was a competitor of Dr. Schwartz’s and non-testifying expert for Kostel.

4. Whether the trial court abused its discretion by the inclusion of jury instructions objected to by Dr. Schwartz and the denial of others that he requested.

5. Whether the trial court abused its discretion by the sua sponte preclusion of evidence related to Kostel’s history of psychiatric disorders.

6. Whether the trial court erred when it excluded evidence that portions of Kostel’s medical bills were “written off’ pursuant to federal laws governing the billing of Medicare beneficiaries.

We address one issue raised by Kostel on notice of review:8

7. Whether the trial court abused its discretion by denying Kostel’s request for a jury determination of her claim for punitive damages.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court abused its discretion when it precluded Dr. 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.

[¶ 9.] Within the fourteen-month period prior to the surgery he performed on Kos-tel, Dr. Schwartz operated on two patients, on both of which Dr. Schwartz mistakenly performed procedures in the wrong locations on the patients’ spines. The first of these surgeries took place in July 2001, seven months after Dr. Schwartz completed his residency and started his practice. As a consequence, litigation arising from these two incidents was pending at the time the instant case was at trial.

[¶ 10.] On December 17, 2003, Dr. Schwartz signed a stipulation with the South Dakota State Board of Medical and Osteopathic Examiners (the “Board”) wherein he agreed to have his license placed on probationary status. Among the conditions of the probation, Dr. Schwartz agreed to complete one year of advanced clinical training in neurosurgery and three months of advanced training in neurora-diology. He also agreed that he would limit his practice of medicine to the extent required to fulfill the training obligations. Dr. Schwartz further agreed that for a period of five years following the completion of training, he would refrain from practicing on his own and that during that time he would only engage in the practice of neurosurgery through group practice. The stipulation provided that various national data bases and the Federation of State Medical Boards would be notified of the probation and that the “Basis for Ac*370tion” given in such notification would be “Malpractice.”

[¶ 11.] Dr. Schwartz moved in limine to exclude evidence or testimony concerning the other pending malpractice suits and Board proceedings. At a hearing on May 5, 2006, the trial court granted his motion. The exclusion was conditioned, however, on Dr. Schwartz refraining from offering any testimony about his training and experience, or opinions as to the applicable standard of care. Still, Dr. Schwartz was permitted to testify about the surgical procedure he performed on Kostel and the intra-operative pathology that he alleged was the basis for expanding the preoperative scope of the surgery without exposing himself to examination of other pending malpractice claims or proceedings involving the same type of allegations. Nevertheless, Dr. Schwartz contends the ruling was prejudicial and that he should have been able to offer his expert opinion as to the applicable standard of care and to establish for the jury the basis for his opinion by testifying to his training and qualifications without being subject to inquiry into the other pending malpractice suits or the Board proceedings.

[¶ 12.] “The trial courts eviden-tiary 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 N.W.2d 186, 194 (internal citations and quotations omitted).

[¶ 13.] Dr. Schwartz argues that an inquiry into the other pending malpractice suites or Board proceedings would violate SDCL 19-14-10 (Rule 608(b)). Rule 608(b) 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:

(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.

In support of this argument, Dr. Schwartz cites Persichini v. William Beaumont Hosp., 238 Mich.App. 626, 607 N.W.2d 100 (1999); Heshelman v. Lombardi, 183 Mich. App. 72, 454 N.W.2d 603 (1990); Nowatske v. Osterloh, 201 Wis.2d 497, 549 N.W.2d 256 (Ct.App.1996); and Roe v. Doe, 160 Misc.2d 1074, 612 N.Y.S.2d 558 (N.Y.Sup. Ct.1994).

[¶ 14.] These cases are consistent with the precept that inquiry into an expert’s alleged mistakes or connection to unrelated adverse claims do not impact on his credibility or character for truthfulness. However, these cases also hold that 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 and does impact credibility, and therefore, is appropriate inquiry.9 See Persichini, 607 N.W.2d at *371106 (holding that inquiry on cross-examination of expert as to whether he had been a defendant in other malpractice cases without addressing any alleged misdiagnosis in said eases, was not relevant to the expert’s competency or knowledge); Heshelman, 454 N.W.2d at 609 (holding that “[m]ere unproven accusations of malpractice stated in a complaint cannot be used as a basis for attacking a physician’s knowledge and credibility”); Nowatske, 549 N.W.2d at 259 (holding that cross-examination of expert about the mere existence of malpractice actions against him did not impact on his credibility and did not go to his character for truthfulness or untruthfulness); Roe, 612 N.Y.S.2d at 560 (holding that disclosure of defendant expert’s conviction of a criminal offense was relevant to his credibility as a witness, but that inquiry into the disciplinary proceedings that resulted in the suspension of his license due to the well publicized criminal conviction did not aid the fact finder in assessing his credibility and competency in regard to the unrelated malpractice suit at bar).

[¶ 15.] In Wischmeyer v. Schanz, 449 Mich. 469, 536 N.W.2d 760 (1995), the Michigan Supreme Court analyzed this issue in a case with facts that closely parallel those of the instant case. The plaintiff in Wischmeyer injured his back and thereafter consulted with the defendant physician who performed an “L4-L5 discectomy with a posterior lumbar interbody fusion (PLIF).” Id. at 762. The plaintiff filed a malpractice suit when his condition worsened following the surgery. Id. at 763. Plaintiffs expert testified at length to his credentials and explained that he performed six to ten PLIF surgeries and “hundreds of other spinal surgeries.” Id. Plaintiffs expert offered a colloquy on various spinal surgery procedures and how they should be performed, culminating with his conclusion that the defendant performed the wrong procedure on the plaintiff, and further, that he had performed that procedure incorrectly. Id. The expert then pronounced that the “plaintiffs symptoms ‘should not have occurred unless there was some negligence at the time of the procedure.’ ” Id.

[¶ 16.] On cross-examination, Schanz’s defense counsel inquired into plaintiffs expert’s success in the six to ten PLIF surgeries he had performed that were similar to the one at issue in that case. Plaintiffs expert acknowledged that none of these procedures had been successful. He was also asked about four non-PLIF surgeries that had failed, which plaintiffs expert denied remembering. Plaintiffs expert then testified he had never been a defendant in a medical malpractice suit. Id. at 763.

[¶ 17.] On appeal, that court considered defense counsel’s cross-examination in a two-part analysis — the question of whether plaintiffs expert had been the subject of a malpractice suit and the inquiry into plaintiffs expert’s failed non-YLW procedures.10 In regard to the malpractice inquiry, the court held that “the mere fact that an expert may have been named in an *372unrelated, medical malpractice action is not probative of his truthfulness under [Rule 608(b) ] or relevant to his competency or knowledge.” Id. at 767 (emphasis added); see also Persichini, 607 N.W.2d at 105 (taking guidance from Wischmeyer). In the other analysis, the court held that Rule 608(b) was properly considered by the trial court11 and the inquiry into the unsuccessful non-PLIF surgeries was relevant to plaintiffs expert’s competency,12 Wis-chmeyer, 536 N.W.2d at 765. In justifying this result, the court opined:

In this case, [plaintiffs expert] testified that defendant should have undertaken a more conservative course of treatment, implying that a more conservative treatment would have prevented plaintiffs injuries. Through this testimony, he placed his competency to condemn defendant in question. The cross-examination of [plaintiffs expert] regarding prior poor surgical results, therefore, did not raise extrinsic evidence prohibited by [Rule 608(b) ]. Because the competency of [plaintiffs expert] was properly before the court, evidence pertaining to his credibility was relevant.

It is intended that the Rules of Evidence promote the ascertainment of the truth.13 Where information is relevant and not unduly prejudicial, it would be unwise to apply [Rule 608(b) ] so that the jury is deprived of information that would assist it in its task. We believe that this cross-examination was proper because during direct examination [plaintiffs expert] testified that he had performed hundreds of back surgeries, including PLIFs, in order to establish his competency.

The juxtaposition of [plaintiffs expert’s] testimony on direct examination and his conclusion that plaintiffs condition could only result from some negligence during surgery rendered [plaintiffs expert’s] ability to perform such surgeries relevant. “Gaps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility.” Because expert testimony is admitted to assist the trier of fact, it was imperative that opposing counsel be afforded the opportunity to cross-examine [plaintiffs expert] to expose the weaknesses in his knowledge, skill, experience, training, or education.

Id. at 765-66 (emphasis added) (internal citations omitted).

[¶ 18.] In support of his position, Dr. Schwartz also cites Martinmaas v. Engel-*373mann, 2000 SD 85, 612 N.W.2d 600. In Martinmaas, the defendant physician testified to the applicable standard of care and we affirmed the trial court’s decision allowing plaintiffs’ counsel to establish that the defendant no longer had a license, but denied defense counsel any further inquiry into the proceedings of the licensing authority or any other evidence concerning the reason the defendant physician no longer was licensed. Id. ¶¶ 54-58, 612 N.W.2d at 612-13. However, this case does not lend support to Dr. Schwartz, since our holding in Martinmaas was premised on the trial court’s consideration of the fact that the defendant had surrendered his license contemporaneous with an assault charge that was adjudicated prior to trial. See id. ¶ 3. Our review of the record in Martinmaas revealed that plaintiffs’ counsel was able to impeach the defendant’s credibility by establishing that the defendant no longer was licensed. Id. ¶ 58, 612 N.W.2d at 613.

[¶ 19.] In addition, Dr. Schwartz claims Boomsma v. Dakota, Minnesota Eastern R.R. Corp., 2002 SD 106, 651 N.W.2d 238, overruled on other grounds by State v. Martin, 2004 SD 82, 683 N.W.2d 399, lends support to his argument. In Boomsma, the defendant appealed the trial courts refusal to admit evidence pertaining to plaintiffs expert’s optometry license, which the expert voluntarily relinquished rather than contest allegations of misconduct. Id. at ¶ 48, 651 N.W.2d at 248. Again, this case lends no support to Dr. Schwartz’s position. 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. Id. at ¶ 51. Compare with Adams v. Fuqua Industries, Inc., 820 F.2d at 276 (8th Cir.1987) (holding that where expert testified that defendant was liable because it failed to incorporate a “state of the art” device in its lawn mower, the trial court erred by not allowing defendant to impeach expert on cross-examination about his use of the same kind of lawn mower at his place of business).

[¶ 20.] We have also recognized that where a witness makes an issue of his credibility by favorable direct testimony, “ ‘he opens the door’ to impeachment evidence on cross-examination.” State v. Litschewski, 1999 SD 30, ¶¶ 22, 23, 590 N.W.2d 899, 903 (citations omitted). In holding that the defendant’s testimony had placed his credibility at issue, subjecting him to impeachment by contradiction on cross-examination, we noted that “even if ‘the evidence is not admissible under [Rule 608(b) ] it may be admissible to impeach by contradiction as allowed by SDCL 19-14-8 [ (Rule 607) ].’ ”14 Id. ¶ 26 (quoting State v. Byrum, 399 N.W.2d 334, 337 (S.D. 1987)) (citation omitted).

[¶21.] In this case, Dr. Schwartz established his neurosurgery practice in June 2000, immediately after completing his residency. Twenty-one months later, he operated on Kostel. In the fourteen-month period preceding Kostel’s surgery, Dr. Schwartz conducted two surgeries similar to Kostel’s during which, by his own deposition testimony, he made significant mistakes, and in malpractice suits were filed.15 Ultimately, Dr. Schwartz entered *374into a 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 these sanctions was malpractice.

[¶ 22.] Nevertheless, Dr. Schwartz contends that he should be able to testify without challenge to the applicable standard of care and his credentials and experience as a neurosurgeon. This is not appropriate. Under the trial courts ruling, had Dr. Schwartz testified as he proposed, Kostel’s inquiry on cross-examination would have been based, not on allegations, but rather on Dr. Schwartz’s own admissions of malpractice. In addition, the procedures giving rise to the malpractice actions about which Kostel would have inquired of Dr. Schwartz were not of a kind remote in time or unrelated in type to Kostel’s procedure. Consequently, this inquiry would have related to Dr. Schwartz’s competency and thereby would have been relevant to the assessment of his credibility in the eyes of the jury. We find no prejudice in the trial courts conditional exclusion of evidence related to the other malpractice actions and the Board proceedings, and therefore, no abuse of discretion.16

[¶ 23.] 2. Whether the trial court abused its discretion when it allowed Kostel to elicit testimony from Dr. Schwartz pertaining to alleged “other acts” and when the court gave the jury an instruction limiting the applicability of the testimonial evidence obtained during this line of questioning.

[¶ 24.] Dr. Schwartz alleges that the trial court misapplied SDCL 19-12-5 (Rule 404(b)) when it ruled that Kostel could ask him three questions regarding “other acts”. He also contends that this alleged error was compounded and he was unduly prejudiced when the trial court issued a jury instruction limiting the scope of the application of his answers to the questions.

Evidence of Other Acts

[¶ 25.] Rule 404(b) as codified at 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).

[¶ 26.] Pursuant to the “other purposes” under Rule 404(b), the trial court allowed Kostel to ask the following three questions “for the purpose of determining whether Dr. Schwartz had the requisite skill and knowledge required of a neurosurgeon to read and interpret the radio-graphic images in this case[:]”

1. Did you misread X-rays involving spinal surgeries in the 14 months prior to Ms. Kostel’s surgery?

*3752. On how many occasions did you misread X-rays involving spinal surgeries during this period of time?

3. Did you operate at a level of a patients spine not consented to in the 14 months prior to Ms. Kostels surgery?

Dr. Schwartz answered affirmatively to all three questions.

[¶ 27.] 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, are limitless. State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 798. Rule 404(b) is thus an inclusionary rule, not an exclusionary rule. Id. ¶ 13 (citing John W. Larson, South Dakota Evidence § 404.2(1) (1991)). Evidence is only inadmissible under the rule if offered to prove character. Id. (citing Larson, § 404.2(1)).

[¶ 28.] Notwithstanding the in-clusionary nature of Rule 404(b), the proponent of the other-act evidence has the burden of showing the relevance of the other act. SDCL 19-12-1 (Rule 401);17 SDCL 19-12-2 (Rule 402).18 The other-act evidence is then admissible only if the evidence is sufficient for the trial court to conclude that a jury could find by a preponderance that the other “act occurred and that the defendant Was the actor.” Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 798 (quoting Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988)); See also State v. McDonald, 500 N.W.2d 243, 246 (S.D.1993) (additional citation omitted); see also SDCL 19-9-8 (Rule 104(b)).19 When evidence is found relevant, “the balance tips emphatically in favor of admission” unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time or cumulative evidence pursuant to Rule 403. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 799 (quoting Edward J. Imwinkelried, Uncharged Misconduct, Evidence § 8.28, at 118-19 (Rev. ed. 1998)). The party objecting to the admission of the other-act evidence then has the burden of establishing that the concerns expressed under Rule 403 substantially outweigh the probative value. Id. ¶ 16 (quoting Larson, § 403.1; (citing Jane C. Hofmeyer, A Relaxed Standard of Proof for Rule kOlpfb) Evidence: United States v. Huddleston, 6 Cooley L.Rev. 79 (1989))); see also Id. ¶ 15 (citing United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.1984) (Rule 403 is an “extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence”), reh’g denied, 740 F.2d 979 (11th Cir.1984), cert. denied, Gerwitz v. United States, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984)). ..

*376[¶ 29.] Out of the jury’s presence, trial counsel argued the merits of the inclusion of evidence pertaining to the two mistakenly performed spinal surgeries conducted by Dr. Schwartz within time proximity with Kostel’s. Plaintiffs counsel argued that the nature of these surgeries was relevant to the case at bar and that evidence thereof should be admitted to show the degree of knowledge and skill possessed by Dr. Schwartz. In reaching its decision, the trial court made the following assessment:

The evidence is directed toward establishing a matter and issue other than the defendant’s propensity to commit the act. [T]he evidence shows that the other act is similar enough and close enough in time to be relevant to the matter at issue. [T]the evidence is sufficient to support a jury finding that ... Dr. Schwartz committed this similar act. [T]he probative value of the evidence is not substantially outweighed by the danger of unfair prejudice[.]

[¶ 30.] The trial court ultimately limited the admissible evidence to Dr. Schwartz’s testimony to the three aforementioned questions, the wording of which was precisely crafted. The parties were further instructed that Dr. Schwartz could answer each question “yes or no.”

[¶ 31.] Dr. Schwartz’s other surgeries, from which the other-acts evidence was derived, were similar in kind and close in time to Kostel’s surgery. Further, by his own admission, Dr. Schwartz made mistakes during those other surgeries. From Dr. Schwartz’s affirmative answers to the three questions, there was sufficient evidence to reasonably conclude that the jury could find that he had made prior mistakes. Given Dr. Schwartz’s defense that the expansion of the preoperative scope of the procedure was attributable to an intraoperative diagnosis of more extensive pathology requiring treatment, the evidence entered for purposes of showing his knowledge and skill was not unduly prejudicial. to Dr. Schwartz. Rather, it went to establishing Kostel’s claim that the two additional fusions, beyond the consented-to L4-L5, were performed in error due to his lack of competency. Therefore, we find that the trial court did not abuse its discretion when it permitted Kostel to ask the three questions and admitted Dr. Schwartz’s answers pursuant Rule 404(b).

Instruction Limiting The Application of Rule 101(b) Evidence.

[¶ 32.] “[W]e review the wording and inclusion of individual jury instructions as well as the overall arrangement of instructions under the abuse of discretion standard.” Veith v. O’Brien, 2007 SD 88, ¶ 25, 739 N.W.2d 15, 23 (citing Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 614 (citations omitted)). However, reviewing their correctness in toto and whether the jury was properly instructed overall, we apply the de novo standard. Id. (citing Vetter, 2006 SD 21, ¶ 10, 711 N.W.2d at 614 (citations omitted)).

[¶ 33.] Dr. Schwartz objected to Instruction No. 14, which limited the scope of the jury’s consideration of Dr. Schwartz’s answers to the aforementioned three questions. Instruction No. 14 provided as follows:

The evidence that Dr. Schwartz allegedly had difficulty with or misread radio-graphic images on occasions separate from his care and treatment of the plaintiff, and that on occasion separate from his care and treatment of plaintiff operated at a level not consented to, was received only for limited purposes. You may consider this evidence for the purpose of determining whether Dr. Schwartz had the requisite knowledge *377and skill required of a neurosurgeon to read and interpret the radiographic images in this case. You may not consider it for any other purpose. Specifically, you may not infer that because Dr. Schwartz allegedly had difficulty with or misread radiographic images on occasions separate from his care of plaintiff or operated at a level not consented to that he acted in the same manner in treating plaintiff. Keep in mind as well that the fact that it is alleged that a person may have acted in a wrongful manner on a separate occasion is not evidence of any kind that the person has acted wrongfully in the matter at issue. You should not, as a matter of law and as a matter of fundamental fairness, assume in any way that Dr. Schwartz is or might be liable for medical malpractice simply because it has been alleged that he had difficulty with or misread radio-graphic images involving other individuals or operated at a level not consented to on entirely different occasions.

(Emphasis added).

[¶ 34.] Initially, Dr. Schwartz argues that the trial court erred by offering Instruction No. 14 without his request. In support of his argument, he cites Wangsness v. Aldinger, 1999 SD 103, 598 N.W.2d 221 and Hall v. Commonwealth of Kentucky, 817 S.W.2d 228 (Ky.1991). However, these cases do not support his proposition. The proposition they do support is that where the appellant does not request the limiting instruction at trial and the trial court does not sua sponte give the instruction, the appellant cannot claim error on appeal. See Wangsness, 1999 SD 103, ¶ 20, 598 N.W.2d at 228; see also Hall, 817 S.W.2d at 229. Finding no error where no instruction was given and none was requested does not logically equate with a claim of error were an instruction is given and none was requested. Failure to cite relevant supporting authority is a violation of SDCL 15-26A-60(6)20 and is deemed a waiver. State v. Boston, 2003 SD 71, ¶ 27, 665 N.W.2d 100, 109 (failure to cite relevant authority on point). Therefore, we need not address this argument.

[¶ 35.] Dr. Schwartz next argues that Instruction No. 14 is erroneous because it is not supported by the evidence. See Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 492 (S.D.1982) (reiterating that a trial court may present to the jury, by way of instruction, only those issues that are supported by evidence in the record). We need not expand on our prior Rule 404(b) analysis except to say that Dr. Schwartz’s affirmative answers to the three other-act questions sanctioned by the trial court, see supra ¶26, were sufficient for the trial court to reasonably conclude that the jury could find he had made prior mistakes and that the jury could thereby consider evidence of those prior mistakes in evaluating the degree of knowledge and skill he possessed. Accordingly, we conclude that the instruction was sufficiently supported by the evidence and properly limited the scope for which it could be considered to the aforementioned purpose.

[¶ 36.] Finally, Dr. Schwartz submits that Instruction No. 14 created an. additional standard of care that he was required to provide Kostel. Moreover, despite the clear limitation that the instruction placed on the manner in which the jury could consider his response to the three other-act questions, *378acknowledging that in prior surgeries he had misread X-rays and had conducted procedures in areas of patients’ spines beyond patient consent, Dr. Schwartz alleges that the instruction suggested that the jury could consider his response as evidence of negligence in the instant ease. We disagree. The standard of care applicable to the determination of negligence was given to the jury with Instruction No. 12, which provided: “A neurosurgeon is negligent if he fails to exercise the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful neurosurgeons would possess and use in similar circumstances.” (Emphasis added). Instruction No. 13 informed the jury how it could make the determination of whether Dr. Schwartz had applied the standard of care. “You must decide whether Dr. Schwartz possessed and used the knowledge, skill, and care which the law demands based on the testimony and evidence of members of the profession who testified as expert witnesses.”21 Instruction No. 14 then provided other-act evidence as an additional basis upon which the jury could consider for the very narrow purpose of determining “whether Dr. Schwartz had the requisite knowledge and skill ... to read and interpret radiographic images .... ”

[¶ 37.] Since Instruction No. 14 was supported by Rule 404(b) evidence, and carefully limited the scope for which that evidence could be considered, we find no abuse of discretion in the trial court’s inclusion of this instruction. See Veith, 2007 SD 88, ¶ 25, 739 N.W.2d at 23. Moreover, when read in context with other related instructions, we conclude that the jury was properly instructed overall.

[¶ 38.] 3.Whether the trial court abused its discretion when it refused to admit an anonymous letter sent to Kostel, the author of which was a competitor of Dr. Schwartz’s and non-testifying expert for Kostel.

[¶ 39.] On or about April 3, 2002, Kostel received an anonymous letter. The typewritten message stated the following:

What happened to you in surgery was real bad. They are trying to cover it up. They told us all yesterday at work not to talk about anything that happens in the operating room. These things shouldn’t have to happen. I copied this add [sic] form [sic] the phone book. This man has helped my friends. Don’t tell anybody about this letter I need my job and don’t want to lose it.

The referenced “add,” included in the envelope, was from a Yellow Pages advertisement for a personal injury attorney in Rapid City.

[¶ 40.] Larry Teuber, M.D., a Rapid City neurosurgeon, ultimately admitted to being the author of the letter.22 Dr. Teu-ber had had no contact with Kostel prior to sending the anonymous letter and knew nothing of her condition at that time other than that he had heard from his associate, Edward Seljeskog, M.D., that a procedure conducted on an unnamed individual had taken longer than expected on March 8, 2002. Teuber admitted that he wrote the letter in such a way as to make it appear as though it had been written by a nurse *379or a scrub technician. Once he completed the letter and stuffed it in an envelope along with the Yellow Pages advertisement, he had his office secretary address it in her handwriting, and place it in the mail.

[¶ 41.] Kostel sought a second opinion from orthopedic surgeon, Rand Schleusener, M.D., whom she first saw and began treating with on September 24, 2002. At the request of plaintiffs counsel, Kostel was examined by Dr. Teuber on one occasion on November 26, 2002. In addition to his examination, he reviewed a series of Kostel’s MRIs dating from 1995 to 2001. Dr. Teuber drafted a report summarizing his findings from the examination. In this report, which was entered into evidence at trial, Dr. Teuber stated that while there was a distinct degeneration of the L4-L5 segment, the L3-L4 segment was “the only normal disc in her back” and further, that “[t]here is only a very minimal amount of degenerative change of the L5-S1 disc.” Dr. Schleusener reviewed Dr. Teuber’s report and spoke to him about Kostel’s condition. In December 2002, Dr. Schleusener performed an anterior inter-body fusion with femoral allograft spacer23 in the L5-S1 segment to improve stability in this area near the base of Kostel’s spine.24

[¶ 42.] Kostel filed her complaint on February 14, 2003, and therein made several references to the anonymous letter. Prior to trial, Kostel filed an amended complaint in which she deleted all references to the anonymous letter. Neither Dr. Teuber nor Dr. Seljeskog was called to testify at the trial.

[¶ 43.] Dr. Schleusener continued to treat Kostel through the time of the trial, and along with Quentin Durward, M.D., a neurosurgeon from Dakota Dunes, South Dakota, they testified as plaintiffs experts at trial. Both testified that the L4-L5 segment, to which Kostel had consented to surgery, was an appropriate candidate for fusion at the time Dr. Schwartz operated on Kostel. They also testified that the L3-L4 segment was not in need of treatment and that there was no medical reason to remove the disk there and fuse that segment. In addition, they agreed that there had been no preoperative need to perform the fusion at L5-S1.

[¶ 44.] On May 26, 2006, the trial court issued an order suppressing Dr. Teuber’s anonymous letter and the Yellow Pages advertisement, following Kostel’s motion and brief in support thereof in which she argued that said items should be precluded for lack of relevance. See supra n. 17 (citing SDCL 19-12-1 (Rule 401)) and n. *38018 (citing SDCL 19-12-2 (Rule 402)). Dr. Schwartz asserts that this was error and that the letter was relevant and should have been admissible.

[¶ 45.] First, Dr. Schwartz argues that the anonymous letter had relevancy to why Kostel lost trust in him. Second, he contends that the letter could have been used to refute Dr. Teuber’s November 26, 2002 examination report. Finally, he alleges that Dr. Teuber was motivated out of deep personal animus stemming from his position as a competitor of Dr. Schwartz’s. Dr. Schwartz also cites the fact that Dr. Teuber and Dr. Schleusener are part owners of the Black Hills Surgical Center. Coupled with the fact that Dr. Schleusener reviewed Dr. Teuber’s findings and spoke with him prior to performing his own procedure on Kostel, Dr. Schwartz contends that Dr. Schleusener was influenced by Dr. Teuber and that the letter was relevant to put that influence into context.

[¶ 46.] We find these arguments to be attenuated and see no reason to disturb the trial court’s decision regarding this discretionary decision. The record reflects that Kostel was suffering from postoperative distress to a degree significant enough to justify seeking another opinion notwithstanding her receipt of the anonymous letter. Moreover, we fail to see the manner in which the letter could have served to refute Dr. Teuber’s examination report or undermine Dr. Schleusener’s testimony. Beyond the fact that them concurring opinions about Kostel’s condition were corroborated at trial by an unrelated physician from the other end of the state, Dr. Schleusener commenced a long-term, medical-care relationship with Kostel during which he made his own diagnoses and conducted his own procedures. It is hard to conceive how the anonymous letter would have in someway shown that Dr. Schleusener subordinated his own judgment in the treatment of Kostel by succumbing to animus motivated influence by Dr. Teuber.

[¶ 47.] 4. Whether the trial court abused its discretion by the inclusion of jury instructions objected to by Dr. Schwartz and the denial of others that he requested.

[¶ 48.] Dr. Schwartz alleges numerous examples of reversible error in the selection of jury instructions.

Requested Instruction No. 13

[¶ 49.] In addition to the preoperative diagnosis of a degenerative vertebral segment at the L4-L5 location in Kostel’s spine for which she had consented to fusion surgery, Dr. Schwartz avers that he discovered additional pathology requiring treatment once surgery had commenced. As such, he asserts that he did not breach the applicable standard of care by expanding the preoperative scope of the procedure to include additional treatment. He, therefore, argues that he was unduly prejudiced when the trial court refused him the following “error in judgment” instruction:

A physician 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 as defined in these instructions.

[¶ 50.] We recently explained in Papke v. Harbert, 2007 SD 87, ¶ 50, 738 N.W.2d 510 n. 15, 527 n. 15 that in the medical malpractice setting this instruction is only to be given when the physician is presented with multiple treatment options that are viewed as acceptable in the subject field of practice. We also emphasized that even in this limited area of application, an error-in-judgment instruction cannot propose that the physician may commit *381mere error or mistake and not be liable. Id.

[¶ 51.] This case does not present an appropriate application for the requested instruction. The issue here was not whether Dr. Schwartz erred in choosing one of multiple acceptable methods to treat Kostel’s spine. The issue was whether he negligently made a mistake by fusing two vertebral segments that did not need to be fused. Accordingly, the trial court was correct in refusing Dr. Schwartz’s requested instruction.

“Unfortunate or Bad Condition” Instruction

[¶ 52.] The trial court gave the following instruction designated as Instruction No. 15:

A finding of negligence may not be based solely on evidence of bad result to the claimant in question, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence. You are the sole judges of the weight to be given to this kind of evidence.

(Emphasis added). Dr. Schwartz contends that instructing the jury that it could consider Kostel’s bad result along with other evidence in deciding whether Dr. Schwartz had been negligent was an abuse of discretion under the circumstances. In support of his position, he compares this Court’s analyses in Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521 (1945) and Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986).

[¶ 53.] In Hansen, this Court in effect characterized the factual circumstances as a res ipsa loquitur case, where the presence of negligence speaks for itself without the need for expert testimony to show a breach of the standard of care. 70 S.D. at 530, 19 N.W.2d at 522. Plaintiffs child was burned by a device that was operated by and under the exclusive control of the defendant chiropractor at all times relevant. While the plaintiffs submitted expert testimony at trial that when the device of the type that injured the plaintiff was operated correctly no burn would result, they offered no expert testimony as to the applicable standard of care in operating such a device. Id. at 532, 19 N.W.2d 521, 523. The trial court entered a directed verdict for the defendant. Id. at 531, 19 N.W.2d at 521.

[¶ 54.] Reversing the directed verdict, this Court concluded that “[t]he character of the injury in connection with other facts and circumstances and the fair inferences which the jury could draw from them constitute substantial credible evidence and would have sustained a verdict for the plaintiff.” Id. at 534, 19 N.W.2d at 523. In reaching this conclusion this Court set out the applicable rule in a case of res ipsa loquitur:

“[W]hile the result alone is not, in itself, evidence of negligence, yet same may nevertheless be considered, together with other facts and circumstances disclosed by the evidence in a given case in determining whether or not such result is attributable to negligence or want of skill.”

Id. at 533, 19 N.W.2d at 522 (quoting Berg v. Willett, 212 Iowa 1109, 232 N.W. 821, 823 (Iowa 1930)) (citations omitted).

[¶ 55.] In Shamburger, the plaintiff underwent colon surgery and thereafter his condition inexplicably deteriorated. 380 N.W.2d at 661. Eventually, it was determined that the plaintiff had developed an abscess at the location where the colon had been resected. Following the presentation of evidence at the trial on the plaintiffs malpractice suit, the trial court instructed the jury as follows: “The fact that an unfortunate or bad condition resulted to Plaintiff ... during the care afforded to him by Defendant ... does not alone *382prove that Defendant ... was negligent.” 25 Id. at 663 n. 5 (emphasis added).

[¶ 56.] On appeal, the plaintiff in Shamburger argued that the instruction was prejudicial and did not properly instruct the jury on causation without the inclusion of language from the rule set out in Hansen — that his bad result was some evidence in itself that could be considered with other evidence in the record in determining whether the physician had been negligent. Id. at 663. This Court affirmed the instruction given by the trial court based on the distinction between the factual circumstances in Hansen and the case at bar. Id. at 664. Significant to this Court was that unlike the injury in Hansen, the injury to the Shamburger plaintiff “was not the type ... which in and of itself could be evidence of negligence.” Id. (emphasis added).

[¶ 57.] Returning to the instant case, Instruction No. 15 clearly allowed the jury to consider Kostel’s bad result along with other evidence in reaching its finding of negligence. Dr. Schwartz contends that the trial court should have given an instruction similar to the Shamburger instruction because, as in Shamburger, this too is a case in which negligence is not apparent without expert testimony and such an instruction would have informed the jury that Kostel’s “bad result” was no evidence of negligence.

[¶ 58.] However, Shamburger did not go that far. It is clear that while this Court did not intend for a “bad result,” arising out of circumstances comparable to Shamburger, to alone prove negligence, the Shamburger instruction does not foreclose the jury from considering the “bad result” along with other evidence in determining whether the defendant was negligent. See id. at 663; see also supra ¶ 55. Therefore, we find that the trial court did not abuse its discretion when it instructed the jury that it could consider Kostel’s bad result along with other evidence in determining whether Dr. Schwartz was negligent. See Kennelly v. Burgess, 337 Md. 562, 654 A.2d 1335, 1340 (1995) (in a case where plaintiff suffered brain injury during an operation on his sinus cavity and experts disputed whether defendant physician met the applicable standard of care, the court opined that instructing the jury that “[a]n unsuccessful result following medical treatment is not evidence of negligence” implying to the jury that the bad result was “no evidence at all of negligence”) (emphasis added). As such, in Kennelly the court held that the instruction was erroneous because the “well settled principle that no presumption or inference of negligence arises from the bare *383happening of [a bad result]” meant the bad result “may nonetheless be taken into consideration in assessing negligence.” Id. at 1340-41 (citations omitted).

[¶ 59.] Moreover, we conclude that the jury was properly instructed overall in this regard. While the jury was instructed that it could consider Kostel’s bad result along with other evidence in reaching a finding that 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. See Williams v. Viswanathan, 64 S.W.3d 624 (Tex.App.2001) (holding in a medical malpractice case where an alert and responding, near-drowning victim died after receiving emergency room treatment and the record reflected that there was dispute among experts whether defendant physician had provided decedent with the applicable standard of care, trial court did not abuse its discretion when it instructed the jury that while it could not base a finding of negligence “solely on evidence of a bad result,” a bad result could be considered “along with other evidence”); see also Kennelly, 654 A.2d at 1343.

Instruction No. 13

You must decide whether Dr. Schwartz possessed and used the knowledge, skill, and care which the law demands based on the testimony and evidence of members of the profession who testified as expert witnesses.

[¶ 60.] Dr. Schwartz objected to the trial court’s utilization of Instruction No. 13 arguing that it precluded the jury from considering the opinions and conclusions of lay witnesses in determining whether Dr. Schwartz had met the applicable standard of care. Specifically, Dr. Schwartz references his own “lay” testimony and that of certified nurse practitioner Bonnie Miller and physician assistant Daryl Sieg. Dr. Schwartz proposed Requested Instruction No. 11.

You must decide whether Dr. Schwartz used the skill and care which the law demands based on the testimony and evidence of neurosurgeons who testified as expert witnesses.

However, you are permitted to consider the opinions and conclusions of lay witnesses on those subjects which are unth-in the common knowledge and comprehension of people who have ordinary education, experience, and opportunity for observation.

[¶ 61.] Dr. Schwartz argues that Magbuhat v. Kovarik, 382 N.W.2d 43, -46 (S.D.1986) (citations omitted) supports the use of his proposed instruction over the instruction that was given. In Magbuhat this Court reiterated the general rule that “m medical malpractice cases that negligence must be established by the testimony of medical experts,” because a verdict in a malpractice case cannot be based on “speculation and conjecture.” In support of his proposed jury instruction, Dr. Schwartz cites to the Court’s subsequent clarification in Magbuhat, “[t]he rule does not exclude the opinions and conclusions of lay witnesses on subjects which are within the common knowledge and comprehension of persons possessed of ordinary education, experience and opportunity.” See id. (citations omitted). However, the Court conditioned the extension of the rule for the inclusion of lay testimony on the type of circumstance such as when “a physician operates on a patient’s knee, [and then] the wrong knee [is] treated,” because under that kind of circumstance, “the lay witness could establish [the error] without indulging in speculation and conjecture or knowledge beyond a layperson’s realm.” Id. The complexity of neurosurgery does not pose that kind of self-evident situation. See Block v. McVay, 80 S.D. 469, 476, 126 *384N.W.2d 808, 812 (1964), overruled, on other grounds by Shamburger, 380 N.W.2d at 663. We agree with the rationale of the trial court in rejecting Dr. Schwartz’s Requested Instruction No. 11 in favor of Instruction No. 13, because “no lay opinions and conclusions ... were received or allowed in this case ” relevant to the issues before the jury. (Emphasis added).

Instruction No. 10

A legal cause is a cause that produces a result in a natural and probable sequence, and without which the result would not have occurred.

The legal cause need not be the only cause, nor the last or nearest cause. A legal cause may act in combination with other causes to produce a result. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it causes the injury. However, for legal cause to exist, you must find that the conduct complained of was a substantial factor in bringing about the harm.

(Emphasis added).

[¶ 62.] Dr. Schwartz argues that Instruction No. 10 was incomplete, without expansion on the term “substantial factor.” He proposed an instruction that included factors to consider in determining “substantial factor” from Restatement (Second) of Torts, section 433 cited in Mulder v. Tague, 85 S.D. 544, 549-50, 186 N.W.2d 884, 887 (1971), where this Court adopted “substantial factor” as the determination of whether an act is the proximate or legal cause for a plaintiffs damages. The Restatement factors for determining whether an act is a substantial factor are as follows:

(a)the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.

Id. (quoting Restatement (Second) of Torts § 433).

[¶ 63.] Dr. Schwartz argues that, without setting out the above factors in an instruction, the jury could not properly evaluate the significance of the role that the surgery played in Kostel’s postoperative condition in the context of other factors such as the degree of deterioration in her pre and postoperative physical condition the state of her mental health, and the extent to which Dr. Teuber may have exploited her mental health for his own ends by sending her the anonymous letter.

[¶ 64.] Dr. Schwartz does not cite any authority that would compel a trial court to include the “substantial factor” evaluation instruction he proposed. In this case we conclude that there was evidentiary support for the jury to find that the surgery he performed on Kostel was a substantial factor in the postoperative condition of her spine notwithstanding the other factors he cites. The record reflects evidence to the effect that Kostel, although suffering discomfort in her back and lower extremities from a degenerative L4-L5 vertebral segment, nonetheless maintained full employment and a reasonably active lifestyle prior to surgery. Kos-tel was forty-four years old at the time of the surgery. During the surgery, where it had been originally intended that the L4-L5 segment would be fused, two other segments were also fused. There was expert testimony that at least one of the two additional segments that were fused required a follow-up procedure within nine *385months. There was also expert testimony that adjacent vertebral segments subsequently became involved due to repetitive contact with a rod that had been placed in Kostel’s spinal column during the initial surgery performed by Dr. Schwartz. There was expert testimony that these adjacent vertebral segments became involved to an extent during the four-year period following the March 8, 2002 surgery that Kostel ultimately had to have all of her lumbar vertebral segments and several of her thoracic vertebral segments fused to the point that her spine is now frozen from her tailbone to the middle of her shoulder blades.

[¶65.] We find no abuse of discretion in the settlement of Instruction No. 10 and that the jury was instructed properly overall in regard to “legal cause” and its “substantial factor” prerequisite.

Credibility Instructions

[¶66.] Dr. Schwartz objected to the following instructions as insufficient on the matter of witness credibility.

Instruction No. 5:

You may have heard the terms direct evidence and circumstantial evidence. The law makes no distinction between direct and circumstantial evidence. The jury must simply determine the facts from the greater convincing force of all the evidence in the case, both direct and circumstantial.

You are the sole judges of all the facts and the credibility of the witnesses.

(Emphasis added).

Instruction No. 7:

If you believe that any witness testifying in this case has knowingly sworn falsely to any material matter in this case, then you may reject all of the testimony of the witness.

[¶ 67.] Dr. Schwartz argues that the jury also had to be instructed on how to judge credibility. He cites State v. Hanley, 58 S.D. 191, 285 N.W. 516 (1931) and Frazier By and Through Frazier v. Norton By and Through Norton, 334 N.W.2d 865 (S.D.1983) in this regard. These cases, however, are not supportive. In Hanley, this Court reviewed an instruction that was effectively the same as the “fal-sus in uno, falsus in omnibus” Instruction No. 7, but for the addition of a clause at the end of the instruction qualifying the basis under which the jury could disregard all of a witness’s testimony — “in so far as you believe it to be false.” 58 S.D. at 193, 235 N.W. at 517. This Court held that the additional qualifying phrase was erroneous because it was the province of the jury to reject even witness testimony that it believed to be true when it believed that at another time that witness testified falsely. Id. at 194, 235 N.W. 516, 517-18. However, the Court held the erroneous instruction was not reversible error because the trial court included an additional instruction that informed the jury on how to assess credibility. Id. at 195, 235 N.W.2d at 518.

[¶ 68.] In Frazier, the appellants objected to the trial court’s rejection of their proposed instruction designed to address witness credibility in regard to prior inconsistent statements. 334 N.W.2d at 867. The trial court instead gave an instruction on how to assess credibility. This Court held that the trial court’s choice of instruction was not erroneous in the context of a falsus in uno, falsus in omnibus instruction that was also given. Id. at 869.

[¶ 69.] It does not logically follow from the holdings in Hanley and Frazier that Instruction Nos. 5 and 7 were incomplete or erroneous without an additional instruction on how to assess credibility. We find no abuse of discretion in the trial court’s *386refusal to instruct in this regard and infer that the court assessed the jury competent to judge credibility -without the additional instruction.26

[¶ 70.] We conclude the jury was instructed properly overall and that Dr. Schwartz has shown no basis on any of his charges of error upon which we could decide there would have been a different outcome had the jury been instructed as he proposed.

[¶ 71.] 5. Whether the trial court abused its discretion by the sua sponte preclusion of evidence related to Kos-tel’s history of psychiatric disorders.

[¶ 72.] Kostel had a history of psychiatric treatment for a variety of disorders prior to the surgery. Kostel’s medical records indicated that she had received counseling or treatment for anxiety, depression, post-traumatic stress disorder stemming from abuse, suicidal tendencies, self-destructive behavior, and multiple personality disorder. Kostel also had made several attempts at suicide and had been prescribed several forms of psychotropic medication.

[¶ 73.] When Kostel began consultation with Dr. Schwartz she completed a patient-intake form on which she indicated that she had a history of anxiety, but no other psychiatric conditions. At the time of the March 8, 2002 surgery, Dr. Schwartz was not aware of Kostel’s history of other psychiatric disorders. 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. Schwartz’s claims of error as they relate to liability and damages.

Liability

[¶ 75.] Dr. Schwartz claims that evidence of the full extent of Kostel’s history of psychiatric disorders would have revealed other factors that were responsible for her postoperative condition. Dr. Schwartz cites the respective depositions of Drs. 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. He also cites the offer of proof in this regard provided by defense expert Dr. Mark Eichler. Dr. 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 trial court told defense counsel that he would have to make a satisfactory offer of proof before any such testimony would be allowed. To this end, defense counsel offered the testi*387mony of his last witness, Dr. Eiehler, who was familiar with and had conducted presentations on the affects of psychiatric health on patient recovery. The trial court conducted a Daubert hearing during which Dr. Eiehler presented medical literature and other information about selection of surgical candidates and their expected surgical outcomes based in part on their psychological profiles.

[¶ 77.] The trial court rejected the offer of proof finding that Dr. Schwartz had failed to show that a neurosurgeon was qualified as an expert under SDCL 19 — 15— 2 (Rule 702)27 to testify about psychological disorders. The court also concluded that the supporting literature was not satisfactory to meet the Daubert standard applied in South Dakota.28 Moreover, the court stated that Dr. Schwartz’s previously unannounced intention to have Dr. Eiehler opine at a Daubert hearing about psychological aspects of surgical recovery was not timely noticed and denied Kostel an opportunity to discover Dr. Eichler’s basis. See Peters v. Hoisington, 72 S.D. 542, 552, 37 N.W.2d 410, 415 (1949) (opining that when deciding whether to allow an expert to testify, the trial court has broad discretion to take into consideration how much notice the adverse party has been provided so as to “guard against surprise and to enable an adversary to investigate the professional standing of the proposed expert witness”).

[¶ 78.] In regard to Dr. Schwartz’s claim that the suppressed evidence had impeachment value, he argues that a former co-worker of Kostel’s would have offered testimony about “black-outs” that Kostel allegedly told the co-worker she had experienced that were attributable to her multiple personality disorder. However, Dr. Schwartz offered no authoritative evidence on multiple personality disorder or how it may have affected Kostel’s perceptions and recollections.

[¶ 79.] “[A] trial judge must ensure that an expert’s testimony rests on both a ‘reliable foundation and is relevant to the task at hand.’ ” Rogen v. Monson, 2000 SD 51, ¶ 13, 609 N.W.2d 456, 459 (quoting State v. Hofer, 512 N.W.2d 482, 484 (SD 1994)) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). When ruling on the admissibility of expert opinion, the trial court must function as a gatekeeper. Id. (quoting Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760.) In this regard the *388trial court’s discretionary authority is broad. Wells v. Howe Heating & Plumbing, 2004 SD 37, ¶ 16, 677 N.W.2d 586, 592 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

[¶ 80.] We can infer from the record that the trial court had great concern about the probative value of Kostel’s history of psychiatric disorders as balanced against the prejudicial effect of admitting such evidence of uncertain relevance. The court appears to have decided on a compromise by allowing Dr. Schwartz to inquire into her history of anxiety and depression. However, the record reveals that the trial court, after reviewing the respective depositions of the neurosurgeons, the literature provided by the defense, and after conducting a Daubert hearing, was unconvinced as to the relevance of Kostel’s psychiatric disorders in relation to her surgical recovery or the qualifications of the neurosurgeons to provide testimony in that regard.

[¶ 81.] Moreover, we would point out that the evidence of Kostel’s psychiatric disorders would have involved disclosure of hundreds of pages of material otherwise covered under the therapist-patient privilege. Confidentiality is the sine qua non of that relationship. State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647, 649 (2005) (citing Jaffee v. Redmond, 518 U.S. 1, 10-11, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996)). “Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure -” Jaffee, 518 U.S. at 10, 116 S.Ct. at 1928, 135 L.Ed.2d 337. “It is difficult if not impossible for psychotherapists to function without being able to assure patients of confidentiality and, indeed, privileged communication.” Desclos v. S. New Hampshire Med. Ctr., 153 N.H. 607, 903 A.2d 952, 956-57 (N.H.2006). This is not intended to say that there is never a place for discovery and disclosure of a party’s confidential psychological health information, but merely that the trial court, before sanctioning such discovery and disclosure, consider thoroughly and proceed with great care so as not to open that door for an inappropriate purpose. Finally, we think it worthy to emphasize that the issue of whether Dr. Schwartz was negligent in this ease did not turn on Kostel’s psychiatric health or lack thereof, but rather on whether he provided the applicable standard of care in conducting the surgical procedure. Accordingly, on the issue of liability we find no abuse of discretion in the trial court’s refusal to allow Dr. Schwartz’s inquiry into Kostel’s history of psychological disorders.

Damages

[¶ 82.] Dr. Schwartz also argues that evidence of Kostel’s history of psychological disorders was relevant on the issue of damages. Dr. Schwartz avers that had the bulk of the psychological evidence been admitted it would have been apparent that the quality of Kostel’s life prior to surgery was less than she, her lay witnesses, and plaintiffs counsel during closing argument claimed it to be.

[¶ 83.] Where physical pain and suffering absent mental anguish impairs the enjoyment of life, the mere fact a plaintiffs complaint references loss of enjoyment of life is not a basis upon which to place that plaintiffs mental or emotional state at issue. Garbacik v. Wal-Mart Transp., LLC, 932 So.2d 500, 504 (Fla.Ct. App.2006). “In the event that the plaintiffs claim for loss of enjoyment is limited solely to the physical effects of the defen-dantfs] alleged malpractice, then questioning regarding the plaintiffs mental state would be improper.” Mora v. Saint Vin*389cent’s Catholic Med. Ctr., 8 Misc.3d 868, 800 N.Y.S.2d 298, 302 (N.Y.Sup.Ct.2005).

[¶ 84.] There was evidentiary support for plaintiffs counsel’s summary during closing argument to the degree of activity to which Kostel was accustomed in her life before Dr. Schwartz performed surgery on her on March 8, 2002.

She had fun, she rode horses, and she enjoyed life.... She played with her kids, she was the soccer mom, she kicked the ball around[. N]ot even two weeks before the surgery, she’s down on the floor, playing with her grandchild.

[¶ 85.] Evidence was presented at trial that because Kostel’s spine has been fused from tailbone to shoulder blades, Kostel, who is now forty-eight years old with Bachelor’s and Master’s degrees in social work, is unable to work and resides in an assisted living facility for the elderly. She takes a variety of pain medications and requires assistance with such routine daily activities as preparing her meals and vacuuming her apartment.

[¶ 86.] The basis upon which Kostel claimed damages was grounded not on the difference between her psychological state before and after surgery, but on the difference between being able to function as a reasonably fit person before surgery and being nearly incapacitated by the time of trial. We find no abuse of discretion in the trial court’s refusal to allow inquiry into Kostel’s history of psychological disorders for purposes of the jury’s assessment of damages.

[¶ 87.] 6. Whether the trial court erred when it excluded evidence that portions of Kostel’s medical bills were “written off’ pursuant to federal laws governing the billing of Medicare beneficiaries.

[¶ 88.] Before trial, the court denied Dr. Schwartz’s motion to preclude Kostel from claiming damages for that portion of her medical expenses that were “written off’ by her healthcare service providers in accordance with their agreements with Medicare, whereby charges to Medicare recipients are limited. Kostel’s billed medical charges totaled $210,219.00. The amount actually paid in satisfaction of the billed charges less Medicare “write offs” was $94,727.41. Dr. Schwartz argues that the trial court allowed Kostel a windfall of $115,491.59 by precluding disclosure of the “written off’ portion of the medical charges.

[¶ 89.] Until recently, there was a question as to whether South Dakota’s collateral source rule that this Court recognized in Moore v. Kluthe & Lane Ins. Agency Inc., 89 S.D. 419, 234 N.W.2d 260 (S.D.1975) applied to Medicare “write offs.” In that case this Court held “[t]otal or partial compensation received by an injured party from a collateral source, wholly independent of the wrongdoer, does not operate to reduce the damages recoverable from the wrongdoer.” Id. at 434, 234 N.W.2d at 269 (citations omitted). We settled this matter in Papke, 2007 SD 87, ¶¶ 79-80, 738 N.W.2d at 536. While reiterating our settled law “that plaintiffs are entitled to recover the reasonable value of their medical services, and what constitutes a reasonable value for those services is a jury question[,]” we held that the collateral source rule applies to Medicare “write offs” such that the jury’s determination of the reasonable value of medical services shall begin with the amount of medical service billed, before any Medicare “write off.” Id. ¶ 78, 738 N.W.2d at 535. As such, we find no error in the trial court’s decision to allow Kostel to present those amounts for the jury’s consideration.

[¶ 90.] 7. Whether the trial court abused its discretion by denying Kos-*390tel’s request for a jury determination on her claim for punitive damages.

[¶ 91.] Kostel argues that the character of the harm inflicted upon her by Dr. Schwartz was such that punitive damages were in order and that the jury should have been instructed as to that option. Before a punitive damages claim can be submitted to the jury “a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against” must be shown by “clear and convincing evidence[.]” SDCL 21-1-4.1 In other words, .the claimant must make “a prima facie showing that punitive damages may be in order.” Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D.1991) (emphasis in original). While there was sufficient evidence in this case to support a jury finding of negligence warranting compensatory damages, we find no basis upon which to conclude Dr. Schwartz’s conduct in treating Kostel rose to a level that would have justified sending the issue of punitive damages to the jury. Therefore, we find no abuse of discretion in the trial court’s decision denying Kostel’s request for a jury instruction on punitive damages.

[¶ 92.] Affirmed.

[¶ 93.] MEIERHENRY, Justice, and HOFFMAN, Circuit Judge, concur.
[¶ 94.] ZINTER, Justice, and WILBUR, Circuit Judge, concur specially.
[¶ 95.] WILBUR, Circuit Judge, sitting for SABERS, Justice, disqualified.
[¶ 96.] HOFFMAN, Circuit Judge, sitting for KONENKAMP, Justice, disqualified.

. 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://apparelyzed.com/spine. html (last visited August 8, 2008).

. Laminectomy is a procedure used to treat spinal stenosis — a condition that causes pain in the extremities due to compression of the spinal nerves inside the spinal canal, arising from degeneration, or wear and tear, in the parts of the spine adjacent to the affected area. 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 the pressure. http://www. eorthopod.com/public/patient_education/ 6571Zlumbar_laminectomy.html (last visited August 8, 2008).

. "Discectomy 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-microdiscecto my-for-a-herniated-disc (last visited August 8, 2008).

. "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 ... verte*368bral elements [,] thereby stop [ping] motion at that segment." http://www.spine-health.com/ treatment/back-surgery/surgery-overview/ himbarsurgery/posterior-lumbar-interbody-fusion-plif-surgery.html (last visited August 8, 2008).

."[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-hea lth.com/treatment/spinal-fusion/pedicle-screwsspine-fusion (last visited August 8, 2008).

. This designation refers to the segment that includes the last lumbar vertebra and the first sacral vertebra, http://images.main.uab.edu/ spinalcord/graphicimages/bspine.gif (last visited August 8, 2008).

. The anonymous letter had been written by Larry Teuber, M.D., a competing Rapid City neurosurgeon.

. Due to our affirmance on Issues 1 through 6, we need not address Kostel’s remaining issues.

. Dr. Schwartz also cites Hathcock v. Wood, 815 So.2d 502 (Ala.2001) in support of his position that inquiry into the other malpractice suits and Board proceedings would violate Rule 608(b). In Hathcock, a medical malpractice case, the Alabama Supreme Court deferred to the trial court’s conclusion that cross-examination of plaintiff's expert *371about events that led to his medical license being placed on probationary status by the local licensing authority was more prejudicial than probative. Id. 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 that court's interpretation of this 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 rule’s express language.

. Defense counsel's inquiry into plaintiff's expert’s unsuccessful PLIF surgeries was not at issue during the appeal. Wischmeyer, 536 N.W.2d at 764.

. The court also found that the Rule 403 was correctly considered. Id. at 766. Michigan’s version of Rule 403 is identical to South Dakota's, which is codified at SDCL 19-12-3 and provides as follows:

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.

. The court also recognized that the trial court had appropriately applied Rule 608(b) by disallowing impeachment of plaintiff’s expert with extrinsic evidence and noting that the trial court stated that defense counsel "would be 'stuck with [plaintiff's expert's] answer.’ ” Id.

.The court cited Michigan's Rule 102, which is effectively identical to South Dakota's Rule 102 codified under SDCL 19-9-2, and provides:

Chapters 19-9 to 19-18, inclusive, shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

(Emphasis added).

. 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.

. 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.

. While our conclusion on this issue did not necessitate a review of the trial court’s decision to allow Dr. Schwartz to offer lay testimony about the surgical procedure that he performed on Kostel's spine, we reiterate our holding in Block v. McVay, 80 S.D. 469, 126 N.W.2d 808, 812 (1964) (emphasis added), ovemiled on other grounds by Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986): “Laymen 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.”

. Rule 401 codified under SDCL 19-12-1 provides:

"Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of -the action more probable or less probable than it would be. without the evidence.

. Rule 402 codified under SDCL 19-12-2 provides:

All relevant evidence is admissible, except as otherwise provided by Constitution or statute or by chapters 19-9 to 19-18, inclusive, or by other rules promulgated by the Supreme Court of this state. Evidence which is not relevant is not admissible.

.Rule 104(b) codified under SDCL 19-9-8 provides:

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(Emphasis added).

. SDCL 15-26A-60(6) provides in pertinent part:

[A]n argument shall contain the contentions of the party with respect to the issues presented, the reasons therefore, and the citations to the authorities relied on....

. Dr. Schwartz also alleges that the trial court abused its discretion when it gave Instruction No. 13. However, we also disagree with this assertion, which we will address in Issue 4.

. Including the letter to Kostel, Dr. Teuber admitted to sending four anonymous letters to patients of Dr. Schwartz. See Dan Daly, Black Hills Surgery Center physician's practice suspended for 90 days, Rapid City Journal, section A, pg. 1, September 13, 2005.

. An allograft is "[t]he transplant of ... tissue from one individual to another ....” http ://www.medterms. com/script/main/art. asp?articlekey=30941 (last visited August 8, 2008). This is in contrast to an autograft, which is “[tjissue transplanted from one part of the body to another in the same individual.” http ://www.medterms. com/script/main/ art.asp?articlekey=40486 (last visited August 8, 2008). Dr. Schleusener testified that he removed the disk from the L5-S1 segment of Kostel’s spine and replaced it with a bone graft called a "femoral allograft spacer.” He described the spacer as "a piece of femur that’s cut into the shape of a wedge-shaped donut from [a] cadaver.”

. At trial, Dr. Schleusener testified that an anterior interbody fusion is a fusion performed on the front of the spine. He stated that at least one pedicle screw that Dr. Schwartz had placed in the sacrum was not seating properly. He indicated that the sacrum differs from the other spinal bones in that the bone material in the sacrum does not make as secure an anchorage for screws and suggested that the problem with the screw that was not seating properly may have been attributable to the long, three-segment fusion that Dr. Schwartz had performed on Kostel from L3-L4 to L5-S1, the entire span of which was being anchored at the sacrum.

. In the interest of clarity, we note that "Instruction No.7” from Shamburger, cited in its entirety, provided in relevant part as follows:

If a board-certified general surgeon brings to his patient care, skill and knowledge of the reasonable board-certified surgeon, he is not liable to that patient for damages resulting from a good faith error of judgment which he may have been guilty. 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. A board-certified surgeon is not an insurer of the correctness of his judgment or the end result of his medical treatment. The fact that an unfortunate or bad condition resulted to Plaintiff ... during the care afforded to him by Defendant ... does not alone prove that Defendant ... was negligent.

380 N.W.2d at 663 n. 5. (Emphasis added).

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. 7. Id. at 663.

. While we find no error with the trial court's selection of jury instructions pertaining to witness credibility, in the future claims of error in this regard could largely be avoided by the inclusion of an instruction similar to South Dakota Pattern Jury Instruction (SDPJI) 2-01. SDPJI 2-01 provides:

You are the sole judges of all facts and credibility of witnesses. 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.

. Rule 702 codified under SDCL 19-15-2 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

. The standard for determining whether an expert's theory or method qualifies as scientific, technical, or specialized knowledge requires application of the following nonexclusive list of factors for assessing admissibility at trial:

(1)whether the method is testable or falsifiable;

(2) whether the method was subjected to peer review;

(3) the known or potential error rate;

(4) whether standards exist to control procedures for the method;

(5) whether the method is generally accepted;

(6) the relationship of the technique to methods that have been established as reliable;

(7) the qualifications of the expert; and

(8) the non-judicial uses to which the method has been pul.

State v. Guthrie, 2001 SD 61, ¶ 35, 627 N.W.2d 401, 416 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 2796-98, 125 L.Ed.2d 469 (1993)).

ZINTER, Justice
(concurring specially).

[1197.] I concur and write on Issue 5 regarding the trial court’s partial exclusion of evidence relating to Kostel’s mental health.29 I agree with the Court’s affir-mance of the trial court’s decision to deny Dr. Schwartz’s requested use of all of Kos-tel’s mental health history. I write to explain my view of this issue, including additional factual support for our decision. I also write to explain my view of the Court’s discussion regarding the interplay of privilege on the issues.

[¶ 98.] On the issue of liability, which involves Kostel’s ability to physically heal after the surgery, I would hold that the lack of notice alone justified the preclusion of Dr. Eichler’s testimony. With respect to other requested uses of her mental health history with respect to liability,30 I would hold that absent a foundational showing of a relationship between the precluded evidence and her ability to physically heal, the trial court did not abuse its discretion.

[¶ 99.] With respect to the related matter of privilege, the Court’s suggestion that some of Kostel’s history may have been excluded by the therapist-patient privilege should, in my view, be read narrowly. See supra ¶ 81. I agree that because Dr. Schwartz failed to prove that Kostel’s mental health history was relevant to liability, it was protected by the privilege with respect to that issue. See SDCL 19-13-11 (only requiring a waiver *391of the therapist-patient privilege when the evidence is relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of her claim or defense); SDCL 19-2-3 (only requiring a waiver of the privilege when the physical or mental health of any person is in issue). Because Kostel’s mental health history was not shown to be relevant to her ability to physically heal, it may have been privileged31 with respect to liability. Nevertheless, in my view it was admissible to the extent it was relevant to the damage issue discussed below. See Maynard v. Heeren, 1997 SD 60, ¶ 11, 563 N.W.2d 830, 834-35 (concluding that even if the emotional and mental state of a plaintiff is not an element of the plaintiffs causes of action, mental condition is not privileged when relevant to the question of damages).

[¶ 100.] With respect to damages, Kos-tel sought to be compensated for loss of enjoyment of life due to her physical disabilities caused by Dr. Schwartz’s treatment. Although Kostel claimed that her mental health history was irrelevant to this narrow claim,32 she is mistaken because the record reflects that the non-physical aspects of her loss of enjoyment of life claim could have been caused or exacerbated by her mental health problems.33 Therefore, some of Kostel’s mental health history was relevant and admissible with respect to her claimed inability to enjoy life. See id.

[¶ 101.] The trial court recognized the relevancy of this evidence on the- issue of damages, but carefully excluded those portions of Kostel’s history that were irrelevant and overly prejudicial. For example, on numerous occasions the court explained that it was allowing Kostel’s history of depression and anxiety as relevant to the claimed loss of enjoyment of life, but the court did not allow evidence of blackouts, post-traumatic stress syndrome, suicide, and multiple personality disorders that related to childhood sex abuse.34 Thus, the court allowed evidence of Kostel’s hospitalizations reflecting a lengthy history of depression and anxiety, one of which reflected recurrent and severe depression, *392despondency, panic attacks, psychotropic drug prescriptions, and a depressed mood with variable difficulties with concentration, sleep, and appetite. Another example of admitted evidence included a 1998 hospitalization for progressively worsening depression, classified as “recurrent major depression, severe.” Considering the evidence that was allowed, the overly prejudicial effect of the excluded evidence, the lack of foundation on the excluded evidence, and this Court’s deferential standard of review, the trial court did not abuse its discretion in excluding some of Kostel’s mental health history.

[¶ 102.] WILBUR, Circuit Judge, joins this special writing.

. Although Dr. Schwartz complains that he was not able to pursue some mental health history issues he raised in opening statement, informing a jury that certain evidentiary matters will be produced is always subject to subsequent admissibility determinations by the trial court.

. The medical evidence on this issue reflected that significant mental health issues may make it more complicated or difficult to treat a patient.

. Privilege does not appear lo be a basis for the trial court’s decision, and it was not briefed on appeal. Consequently, in my view, the Court's discussion of this issue is dictum.

. Kostel dropped her pleaded claims for emotional distress and mental anguish. Dr. Schwartz did not offer evidence reflecting that the disallowed portions of Kostel's mental health history affected her credibility by illuminating her powers of perception and ability to testify with accuracy.

. The Court mistakenly relies on Garbacik v. Wal-Mart Transp., LLC, 932 So.2d 500, 504 (Fla.Dist.Ct.App.2006) (stating that the mere allusion to loss of enjoyment of life, without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the medical privilege) and Mora v. Saint Vincent's Catholic Med. Ctr. of New York, 8 Misc.3d 868, 800 N.Y.S.2d 298, 302 (2005) (stating that in the event the plaintiff's claim for loss of enjoyment of life is limited solely to the physical effects of defendants' alleged malpractice, then questioning regarding the plaintiff's mental state would be improper). See supra ¶ 83. Unlike those cases, Kostel’s claim for loss of enjoyment of life was not limited solely to physical effects of Kostel's surgery. She claimed that as a result of those physical effects, she was unable to have "fun” enjoying recreation and family activities. See supra ¶ 84. Therefore, like our decision in Maynard, Kostel’s history of depression and anxiety was admissible on the damage claim. See Maynard, 1997 SD 60, ¶ 11, 563 N.W.2d at 834-35.

.Some of the proffered evidence was remote in time. The court also determined that Dr. Schwartz’s medical literature did not provide the necessary causative link under Dau-bert and Rule 702 to allow neurosurgeon testimony with respect to suicide and multiple personality disorders.