Jorgenson v. Vener

616 N.W.2d 366, 2000 S.D. 87 (2000)

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Jorgenson v. Vener

South Dakota Supreme Court
616 N.W.2d 366, 2000 S.D. 87 (2000)

Facts

David Jorgenson (plaintiff), a South Dakota resident, shattered his right leg and ankle while on vacation in Wisconsin. A Wisconsin physician put pins in Jorgenson’s leg, and when Jorgenson returned home to South Dakota, he saw Dr. Michael Vener (defendant), an orthopedic surgeon. Jorgenson had drainage coming from his pins, so Vener put Jorgenson on antibiotics, to no avail. Jorgenson had two more appointments with Vener with increasingly severe symptoms of infection. Finally, Vener recommended Jorgenson see a doctor in Fargo about the infection. Jorgenson went to the Mayo Clinic instead, where Jorgenson had his leg amputated due to a bone infection. Jorgenson then filed a medical-malpractice claim against Vener. To support his claim, Jorgenson submitted the affidavit of Dr. Mark E. Rupp, an infectious-disease expert, who opined that Vener’s failure to timely diagnose and treat Jorgenson’s bone infection caused Jorgenson the loss of a chance to prevent amputation of his leg. Vener moved for summary judgment, arguing that the loss-of-chance doctrine was not recognized in South Dakota and that Jorgenson could not establish that Vener’s actions were the proximate cause of Jorgenson’s loss of his leg. The trial court granted summary judgment in Vener’s favor, and Jorgenson appealed.

Rule of Law

Issue

Holding and Reasoning (Miller, C.J.)

Concurrence (Amundson, J.)

Dissent (Konenkamp, J.)

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