Breast Augmentation Malpractice Bias Evidence Improperly Excluded

The South Carolina Supreme Court reversed a defendant’s verdict in a medical malpractice case based on error found in the exclusion of evidence of bias of a witness

Jeane Whitfield brought this medical malpractice action against Dr. Dennis Schimpf and Sweetgrass Plastic Surgery, LLC—Schimpf’s medical practice—alleging Schimpf was negligent in performing breast augmentation-mastopexy surgery1 on Whitfield and he and other Sweetgrass employees were negligent in rendering post-operative care. The jury returned a verdict in favor of Schimpf and Sweetgrass, and the court of appeals affirmed. We granted Whitfield’s petition for a writ of certiorari to review the court of appeals’ decision affirming the trial court on two evidentiary rulings: (1) excluding evidence of bias Whitfield offered to impeach the testimony of Sweetgrass’ office manager—Vicky Tolbert— about her sexual relationship with Schimpf and his wife, the salary she was paid by Sweetgrass, and free cosmetic surgical procedures she received from Schimpf; and (2) admitting testimony from Schimpf’s expert witnesses based in part on their Rule 35, SCRCP, examinations of Whitfield. We find the court of appeals was correct to affirm on the second issue but erred in affirming the exclusion of the evidence of bias. We reverse and remand for a new trial.

The case

On May 30, 2017, Whitfield filed this medical malpractice lawsuit against Schimpf and Sweetgrass in Charleston County. The complaint alleged Schimpf was negligent because there was “too much tension placed surgically on the incision which led to inadequate blood flow, ischemia, and dehiscence of the wound margins, fat necrosis, and ultimately infection of the right breast.” The complaint also alleged Schimpf and Sweetgrass were negligent in failing to provide adequate post-operative care to Whitfield.

After a five-day trial, the jury returned a verdict in favor of Schimpf and Sweetgrass, finding on a special verdict form that Whitfield did not “prove by a greater weight or preponderance of the evidence that the Defendants deviated from the standard of care.” Whitfield appealed, and the court of appeals affirmed in an unpublished opinion under Rule 220(b) of the South Carolina Appellate Court Rules. Whitfield v. Schimpf, Op. No. 2022-UP-417 (S.C. Ct. App. filed Nov. 23, 2022). We granted Whitfield’s petition for a writ of certiorari to review the court of appeals’ decision.

Excluded evidence

Before trial, Whitfield’s attorney took Tolbert’s deposition. Tolbert testified she had been in an on-again, off-again sexual relationship with Schimpf and his wife for the  past nine years. She stated the last time they engaged in sexual relations was one week before the deposition. As an employee of Sweetgrass, Tolbert received a salary for her work. Tolbert testified she also received free plastic surgery procedures from Schimpf, including a breast augmentation, hernia repair, liposuction, fillers, Botox, and laser eye treatments.

Error

The evidence has considerable probative value in demonstrating Tolbert’s bias in favor of Schimpf. Tolbert’s long-term sexual relationship with Schimpf made her more likely to provide favorable testimony on his behalf. The facts that Schimpf was giving Tolbert free cosmetic procedures and she was being compensated as an employee of Sweetgrass further increased the likelihood she would testify positively about both Schimpf and Sweetgrass. We find the probative value of this evidence is high. See Starnes, 340 S.C. at 325, 531 S.E.2d at 915.

Turning to unfair prejudice, we find no unfair prejudice in admitting evidence of Tolbert’s salary and that she received free medical procedures as part of her compensation package. This information does not carry even the slightest risk of eliciting an emotional response that could unfairly divert the jury’s attention away from the facts of the case and the applicable law. Unquestionably, therefore, the exclusion of this evidence was error.

As to Tolbert’s sexual relationship with Schimpf, we do see some danger of unfair prejudice in the fear the information about Schimpf’s extramarital relationship with a staff member would paint Schimpf’s character in a negative light and distract the jury from the central issue in the case—whether Schimpf was negligent in rendering medical care. We agree with Schimpf this information had the potential to overshadow the facts relevant to the central issue—medical negligence—and unfairly influence the jury to make its decision on some basis other than whether Schimpf breached the applicable standard of medical care. Given the high probative value of a longstanding romantic relationship with the defendant as a source of potential bias, however, we find the probative value was not substantially outweighed by the danger of unfair prejudice. Thus, it was error to exclude the evidence of Tolbert’s sexual relationship with Schimpf under Rule 403.

As to defendant’s wife

Our analysis differs, however, as to evidence of Tolbert’s sexual relationship with Schimpf’s wife. First, the record before us does not indicate that the evidence of Tolbert’s relationship with Schimpf’s wife adds any additional probative value beyond the fact Tolbert was in a sexual relationship with Schimpf himself. As far as we can tell, therefore, the probative value of this evidence in this case is zero. As to unfair prejudice, the fact Schimpf was involved in a three-way relationship with both his office manager and his wife is a bizarre circumstance that poses a substantially increased risk the jury may be distracted from the central issues in the case. The lack of any additional probative value in the evidence balanced against the significant danger the jury will judge Schimpf by his unconventional and inappropriate sexual conduct rather than by whether he breached the applicable standard of care causes us to agree with the trial court that evidence of Tolbert’s sexual relationship with Schimpf’s wife should have been excluded.

(Mike Frisch)