Opinion
No. 5-320 / 04-0768
Filed August 31, 2005
Appeal from the Iowa District Court for Polk County, Robert A. Hutchinson, Judge.
Plaintiffs appeal from a defense verdict in this medical malpractice action. AFFIRMED.
Barbara J. Diment, of Diment Law Office, West Des Moines, for appellants.
Frederick T. Harris, of Finley, Alt, Smith, Scharnberg, Craig, Hilmes, and Gaffney, P.C., Des Moines, for appellees.
Heard by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Gerald Nye and his spouse sued Dr. William Boulden and his professional corporation for medical malpractice. A jury ruled in favor of the defendants. On appeal, the Nyes contend the district court erred in (1) overruling their motion for new trial, (2) admonishing the jury on evidence it could not consider, and (3) refusing to instruct the jury on a legal theory and on a specification of negligence. We affirm.
I. Background Facts and Proceedings
In July 2000, Nye fell from a ladder and severely fractured his right leg at the knee joint. Dr. Boulden reconstructed the bone and knee joint and inserted metal screws and plates to hold the repair together.
When Nye continued to experience problems with his leg, Dr. Boulden performed an "incision and drainage" procedure and called in an infection control specialist. The specialist wrote an order for a "vacuum assisted closure" device and treated Nye with intravenous antibiotics.
The incision and drainage procedure did not resolve Nye's leg problems. Dr. Boulden re-hospitalized him and removed the hardware from his knee. The leg began healing and antibiotics, as well as use of the vacuum assisted closure device, were discontinued.
Fluid continued to build up in Nye's knee. Dr. Boulden cleaned and covered the wound with local tissue and inserted a drain to remove the fluid. The infection control specialist resumed antibiotic treatment.
When the drain insertion procedure proved unsuccessful, Dr. Boulden performed another "incision and drainage." He also consulted with a plastic surgeon, Dr. Lester Yen, about a procedure to cover the wound with a flap of calf muscle. According to Dr. Yen, one purpose of the flap procedure was to deliver intravenous antibiotics to the bone.
Dr. Yen examined Nye in January 2001. In a letter to Dr. Boulden, he noted, "The wound looks very clean today with no evidence of any infection or further necrosis." Dr. Yen admitted Nye to the hospital and performed the flap procedure. His notes of the operation indicate "no gross purulence of any significant necrotic tissue."
Later that month, Dr. Yen performed an "incision and drainage" on Nye. He removed blood but found no evidence of active bleeding. Nye was discharged.
Dr. Yen notified Dr. Boulden of the results of the procedure he performed as well as Nye's progress. In a letter dated February 5, 2001, he stated:
[Nye] has done well in the hospital since his last episode with some bleeding and hematoma, which required drainage on the 23rd. Remarkably the flap has done well and has come through without any problems whatsoever. The open wound in the knee remains clean, closed and dry. There is no evidence of infection as far as I can tell and no effusion, undue fluid or inflammation around the knee joint itself.
Dr. Yen cleared Nye to start physical therapy.
Nye had his final office visit with Dr. Boulden on February 8, 2001. Dr. Boulden detected no problems with the wound. He recommended a brace and wrote a prescription for one physical therapy session, to teach Nye a home-based program. His notes indicated he wished to see Nye at his office after the brace was fitted.
The Nyes testified that Dr. Boulden told them on February 8, 2001, that he no longer would see them. Dr. Boulden denies this statement. Assuming the Nyes are correct, they do not explain how the statement relates to any claim aside from the patient abandonment claim they voluntarily dismissed.
Several weeks later, Nye saw Dr. Yen again. Dr. Yen wrote and faxed the following notes to Dr. Boulden: "The flap looks fine. It is well healed and the knee is sealed and there is no evidence of any infection or fluid collection." Dr. Yen stated he would see Nye after Nye returned from a family vacation to California.
Meanwhile, Dr. Boulden wrote a prescription for an additional session of physical therapy, based on the recommendation of the physical therapist.
The Nyes left for California in March 2001. They returned a month later because Nye was not feeling well. Nye saw Dr. Yen, who drained a blister that he thought was caused by the brace. After testing revealed an infection, Nye was admitted to the hospital.
On April 25, 2001, Dr. Boulden visited Nye in the hospital and informed him he would be out of town, but that his medical partner would be available to see him. At this point, the Nyes sought and obtained a second opinion from Dr. Rodney Johnson concerning the condition of Nye's leg. One of the suggested options was amputation of the leg.
When Dr. Boulden returned, he talked to Nye about this option as well as an alternate option of fusing the knee. He stated he did not think amputation was indicated at that time. Nye elected to proceed with an above-the-knee amputation.
After the amputation, the Nyes sued Dr. Boulden and his professional corporation, alleging they were negligent in the care and treatment of Nye and alleging that they failed to obtain informed consent in connection with the surgery. The Nyes later amended their petition to state a claim for patient abandonment. They withdrew the informed consent claimbefore trial and the abandonment claim after the close of evidence. Following trial, the jury rendered a verdict for the defendants. The Nyes filed a motion for new trial, which the district court denied.
II. New Trial Motion
The Nyes contend the district court erred in denying their motion for new trial because, in their view, "the jury verdict is not sustained by the evidence and fail[s] to administer substantial justice." They argue that Dr. Boulden failed to meet the standard of care during a period where follow-up care was required, "did not offer a recommendation for treatment prior to amputation," and did not "make a referral of care consistent with the standard of care."
When challenges to rulings on motions for new trial are based on insufficient evidence, our review is for errors of law. Estate of Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004). To the extent that a motion for new trial claims the verdict "fails to administer substantial justice," review is for an abuse of discretion. Id. at 87-88.
We discern no error or abuse of discretion. The Nyes had to "demonstrate the applicable standard of care, violation of this standard of care, and a causal relationship between the violation and the harm allegedly suffered by the plaintiff." Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001). These elements are nearly always established through expert testimony. Id. The Nyes proffered the expert opinions of three physicians and a nurse, but the defendants countered this evidence with expert opinions of their own. Thus, as Dr. Boulden aptly stated, the case boiled down to a "battle of the experts." In such cases, the weight to be assigned the testimony of each witness is within the province of the fact-finder. Estate of Hagedorn, 690 N.W.2d at 88 ("The reasonableness of the defendant's actions was the proper subject of expert testimony and ultimately was for the jury's assessment."). Here, the fact-finder gave greater weight to the defense experts. We find no error or abuse of discretion in the district court's refusal to disturb this assessment.
III. Admonition to Jury
The Nyes next contend the district court "erred in instructing the jury that the plaintiffs had `no claim' for the months prior to the amputation." Their challenge is not to a written jury instruction but to an admonition the district court gave the jury during the plaintiffs' closing argument. The admonition was grounded in the Nyes' withdrawn theory of abandonment. Through trial, the Nyes had urged that Dr. Boulden terminated care "without sufficient notice or opportunity . . . to enable him to obtain another orthopedic (sic) doctor." At the jury instruction conference, counsel for the Nyes withdrew this theory. During her closing argument, however, she proceeded to discuss Dr. Boulden's claimed failure to provide follow-up care after his final office visit with Nye on February 8, 2001. Counsel for Dr. Boulden objected, citing her withdrawal of the abandonment theory. The plaintiffs' counsel countered that the lack of follow-up treatment was relevant to the Nyes' claim that Dr. Boulden was negligent in treating Nye, whether or not it was relevant to the abandonment claim. In response to these arguments, the district court admonished the jury as follows:
Well, ladies and gentlemen, you are going to have to follow the instructions. You are going to have to follow the evidence that you recall in this case, but [defense counsel] is correct that there is no proper claim in this case at this point for any failure by Doctor Boulden to provide care, in April and May of 2001.
Nye contends this admonition precluded her from arguing, and the jury from finding, that Dr. Boulden was negligent in treating Nye and providing follow-up care after February 8, 2001. She urges, "[t]he district court committed reversible error by telling the jury to disregard the Plaintiffs' proper claim."
We agree with the Nyes that our review of the court's admonition is for errors of law. Iowa R. App. P. 6.4. We also agree that "[a]bandonment and lack of diligence in patient treatment are separate theories of medical malpractice." Glenn v. Carlstrom, 556 N.W.2d 800, 803 (Iowa 1996). For this reason, we are additionally persuaded that, even after the abandonment claim was withdrawn, the Nyes potentially had a claim for negligent follow-up care. However, the Nyes did not present substantial evidence to support the negligent follow-up care theory, rendering the court's admonition non-prejudicial. See Lane v. Coe College, 581 N.W.2d 214, 217-18 (Iowa Ct.App. 1998) (stating legal theories supported by substantial evidence are entitled to be submitted to jury and failure to submit is prejudicial).
We bypass Dr. Boulden's error preservation concern and proceed to the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
Specifically, the Nyes needed to present expert testimony concerning the standard of follow-up care under these circumstances, breach of the standard, and proximate cause. See Phillips, 625 N.W.2d at 718. In Surgical Consultants, P.C. v. Ball, 447 N.W.2d 676, 679 (Iowa Ct.App. 1989), our court provided the following instructive language:
The circumstances of this case involve a determination as to the appropriate type of follow-up care that is necessitated after a major surgery. It involves an assessment as to a patient's condition and a judgment as to how best treat that condition. This is not a case in which a physician's lack of care is so obvious as to be within the comprehension of a layman.
The same is true here. Experts were required, but the experts who testified for Nye did not establish the elements of breach and proximate cause.
Dr. David Beigler stated that follow-up care was "mandatory." He also stated the standard of care after February 8, 2001 would have been to make a referral to another physician and consider fusion of the joint. However, he did not opine that Dr. Boulden failed to make a referral or recommend fusion. He also did not opine that these failures, if they occurred, were the proximate cause of the amputation. Instead, he simply stated "not having treated the entire infection, including the septic arthritis, certainly perpetuated the situation and ultimately led to the decision to proceed with an amputation." This opinion does not account for Dr. Yen's letter, written three days before Dr. Boulden's February 8, 2001 office visit, stating "[t]here is no evidence of infection." And, the opinion makes no mention of Dr. Boulden's visit to Nye's hospital bed in April 2001 or Dr. Boulden's discussion with Nye about the fusion and amputation options. Finally, the opinion does not address Dr. Boulden's testimony that he indeed referred Nye to his medical partner during his absence. In light of these gaps, we cannot conclude Dr. Beigler's testimony amounted to substantial evidence of negligent follow-up treatment.
Turning to the Nyes' second expert, Dr. Rodney Johnson, he stated "ongoing orthopedic treatment was required." Like Dr. Beigler, he did not explain how Dr. Boulden's treatment departed from what was required.
The Nye's third and fourth experts, Dr. Steven Black and Susan Mendez-Eastman, R.N., testified that the use of the vacuum assisted closure device fell below the standard of care. This was an issue that arose before February 8, 2001, not after. Therefore, these opinions had no bearing on follow-up care after February 8, 2001.
As the Nyes did not present substantial evidence of a breach of a duty of follow-up care or substantial evidence that the breach was the proximate cause of Nye's amputation, we conclude they were not prejudiced by the district court's admonition that the plaintiffs did not have a "proper claim" relating to Dr. Boulden's failures in April and May 2001. Cf. Lane, 581 N.W.2d at 217 (stating failure to submit theory supported by substantial evidence is prejudicial).
IV. Refusal to Instruct Jury
The Nyes next contend the district court "erred in instructing the jury that the claim for abandonment had been dismissed without instruction on the elements, and in failing to permit instruction on plaintiffs' theories of the negligence case." This argument relates to the district court's written jury instructions. Essentially, the Nyes contend that, without instructions on the elements of abandonment or negligent failure to offer follow-up treatment, the jury could not place the court's verbal admonition in proper context. We question whether error was preserved on this issue. Bypassing this error preservation concern, we conclude the Nyes did not establish prejudicial error for two reasons. See Lane, 581 N.W.2d at 217.
Counsel for the Nyes withdrew their abandonment theory. With respect to the negligent follow-up theory, she filed proposed jury instructions, which contained a specification of negligence on follow-up care but she stated she did not have a "strong objection" to submitting the case under the single specification of negligence suggested by the court.
First, the Nyes' counsel withdrew their abandonment theory. Therefore, they were not entitled to an instruction on that theory. To the extent they argue that the district court's mention to the jury of the withdrawn theory triggered a requirement to instruct the jury on the withdrawn theory, they have cited no authority for that proposition.
Second, as we concluded in Part III, the Nyes did not present substantial evidence to support their theory of negligent follow-up treatment. Therefore, they were not entitled to a specification of negligence on that question.
For these reasons, we conclude the Nyes' jury instruction challenge must fail.
V. Disposition
We affirm all aspects of the district court verdict and judgment.
AFFIRMED.