Opinion
No. 3-637 / 03-0055
Filed October 15, 2003
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.
Miller appeals the district court's summary judgment ruling in favor of Trimark Physicians Group, Inc., and James D. Wolff. AFFIRMED.
E. Ralph Walker and David J. Darrell of the Walker Law Firm, P.C., Des Moines, and Harley C. Erbe of Nelson Erbe, P.L.C., Des Moines, for appellant.
Joseph L. Fitzgibbons of the Fitzgibbons Law Firm, Estherville, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
In this medical malpractice action, we must decide whether the district court properly granted summary judgment in favor of a physician and his employer following the patient's failure to designate an expert witness. We affirm.
I. Background Facts and Proceedings
Christopher Miller had finger surgery and, a week later, returned to his physician for a dressing change. Dr. James Wolff removed the bandage and left the examining room for approximately one minute to obtain a new splint. On seeing his exposed finger, Miller fainted and fell from the examining table to the floor, injuring his nose.
Miller sued Dr. Wolff and the organization for which he worked, claiming Wolff was negligent in "leaving Plaintiff unattended after removing Plaintiff's bandages when he knew or should have known of the possibility that Plaintiff might black out at the sight of his hand and injure himself." The defendants moved for summary judgment. They asserted Miller did not timely designate an expert witness to testify concerning key elements of his claim and, accordingly, could not prove those elements. See Iowa Code § 668.11(1) (1999) (requiring plaintiffs to certify name, qualifications, and purpose for calling experts in professional liability cases within 180 days of defendant's answer). The district court granted the motion. This appeal followed.
II. Scope and Standard of Review
Our review of this summary judgment ruling is for errors of law. See Landes v. Women's Christian Ass'n, 504 N.W.2d 139, 141 (Iowa Ct.App. 1993). In a case such as this, summary judgment is appropriate "when the party can demonstrate that the proof of the other party is deficient as to a material element of that party's case." Thompson v. Embassy Rehab. and Care Center, 604 N.W.2d 643, 646 (Iowa 2000). See also Welte v. Bello, 482 N.W.2d 437, 440 (Iowa 1992) (stating summary judgment is appropriate if expert testimony is required to establish general negligence or foundational facts and such testimony is unavailable); Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (citing Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989)) (stating issue is "not whether there was negligence in the actions of the defendant but whether there was evidence upon which liability could be found") (emphasis in original).
III. Necessity of Expert
Whether the proof is deficient here depends on whether expert testimony was necessary to make out a prima facie case. The defendants claim that, without an expert, Miller could not establish 1) the applicable standard of care, 2) a violation of this standard, and 3) a causal relationship between the violation and the injury, all elements of a prima facie case of medical malpractice. Oswald, 453 N.W.2d at 635. Miller responds that he did not need an expert to establish these elements because the care he received was either non-medical, administrative, ministerial, or routine, or the lack of care was obvious. See Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 102 (Iowa 1971) (distinguishing between reasonable care standard which did not require expert testimony and professional liability standard which did); Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 384, 101 N.W.2d 167, 172 (1960) (same); Landes, 504 N.W.2d at 141 (same).
Recently, our highest court has framed the test for determining whether an expert is necessary as follows:
[I]f all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation, [expert testimony is not required].
Thompson, 604 N.W.2d at 646 (citing Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999)). Cf. Welte, 482 N.W.2d at 441-42 (looking to whether act or omission was within "common experience of persons" in deciding whether expert was necessary).
Using this test, we believe the essentially undisputed primary facts are, indeed, of common understanding. Miller fainted after Dr. Wolff unwrapped his injured finger. At the time of his fainting spell, Miller was unattended. Miller had no history of fainting spells and did not complain to Dr. Wolff of dizziness.
What is not of common understanding is whether Dr. Wolff owed Miller a duty to protect him from fainting under these circumstances and whether he breached that duty. An expert was needed to answer these questions. Thompson, 604 N.W.2d at 646 (noting question of whether care providers were negligent in forcibly repositioning nursing home patient against his wishes raised issues beyond common understanding of jury, even though the act of repositioning appeared to have been ministerial). Cf.Kastler, 193 N.W.2d at 102 (holding patient with history of fainting spells known to defendants was not required to adduce expert testimony concerning her fall in unattended hospital shower); Bradshaw, 251 Iowa at 384, 101 N.W.2d at 172 (stating claim against hospital employees who left patient unattended after being informed three times of his dizzy spells "differs from the usual action against a physician or surgeon for malpractice"); Landes, 504 N.W.2d at 141-42 (holding post-operative plaintiff who fell when left unattended in a hospital bathroom not required to introduce expert testimony); Cockerton v. Mercy Hosp. Medical Center, 490 N.W.2d 856, 859 (Iowa Ct.App. 1992) (holding post-operative patient who fainted and fell during an x-ray procedure not required to introduce expert testimony). As the district court stated:
We agree with Miller that, assuming a duty and breach of duty are found, proximate cause is apparent.
Expert testimony is required to discuss the appropriate standard of care for preventing fainting in someone with no symptoms or no record of fainting spells. Expert testimony is also required to establish signs or symptoms that Dr. Wolff should have observed and precautions that should have been taken under the circumstances. Without expert testimony, laypersons will have to draw complex medical conclusions about what caused the Plaintiff to faint and about any standard of care that may have been breached by Dr. Wolff. As expert testimony is required and the Plaintiff failed to designate an expert, the Defendants' motion for summary judgment should be granted.
We find no error in this ruling.
Miller raises a fall back argument that the doctrine of res ipsa loquitur applies here and obviates the need for an expert. The defendants respond that this issue was not preserved for review. Assuming without deciding that error was preserved, we find this doctrine does not assist Miller.
Res ipsa loquitor allows a fact finder to infer negligence from certain foundational facts. See Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 831 (Iowa 2000). One of those foundational facts is that the occurrence, in the ordinary course of things, would not have happened if reasonable care had been used. Id. Proof of this foundational fact required an expert. See Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 166-67 (Iowa 1992). Therefore, summary judgment for the defendants was still appropriate.