Opinion
No. 2-988 / 01-1967
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
Plaintiffs appeal the dismissal of their medical malpractice action for their failure to comply with expert discovery. AFFIRMED.
James H. Waters, Ankeny, for appellant.
Tamara K. Hackmann, Thomas A. Finley, and Connie L. Diekema of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., Des Moines, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
David and Rebecca Bernholtz, both individually and on behalf of their minor children (the plaintiffs), filed a medical malpractice action against Des Moines Orthopaedic Surgeons, P.C. and Dr. Linda Bratkiewicz (the defendants). The defendants sought and were granted summary judgment on the ground the plaintiffs' noncompliance with expert certification and discovery rules precluded them from presenting expert testimony on the standard of care and thus prevented them from establishing a prima facie case of medical negligence. Upon our review for correction of errors at law, Iowa R.Civ.P. 6.4, we affirm.
Standard of care and breach in this matter must be demonstrated through expert testimony. See Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). This expert testimony requirement applies to all medical malpractice claims, including those asserting a lack of informed consent. Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 166 (Iowa 1992). If the plaintiffs are precluded from presenting expert testimony as to these matters, they cannot establish a prima facie case of medical negligence and summary judgment was appropriate. Oswald, 453 N.W.2d at 635. Accordingly, we look to see whether the district court erred in excluding expert testimony.
We reject the plaintiffs' contention that the district court must enter a separate ruling striking the expert witnesses before summary judgment may be granted. All that is required is a showing the proof to be presented at trial is limited by a means other than the summary judgment motion itself, such as exclusion of testimony pursuant to section 668.11. Griglione v. Martin, 525 N.W.2d 810, 814 (Iowa 1994). While the district court's ruling as to witness exclusion could have been more explicit, there can be no doubt as to the basis of the court's decision in this matter.
A court may exclude expert testimony for a party's failure to provide expert discovery in accord with rule 1.508, and barring a good cause showing, it must exclude such testimony for failure to timely certify an expert witness's name, qualifications and the purpose for his or her testimony. Iowa R.Civ.P. 1.508(3); Iowa Code § 668.11(2) (2001). Here, the district court set the plaintiffs' deadline for certifying experts and providing expert interrogatory responses at June 1, 2000. On that date the plaintiffs did file a lengthy expert certification, but the court found the certification was not in substantial compliance with section 668.11. See Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993).
The certification named Dr. George Vito and Dr. Bruce Pichler as treating physicians and medical experts. The section for the designation of retained liability experts contained an extensive description of purpose, but failed to identify any specific witnesses. It is apparent the defendants were uncertain as to the identity of the standard of care witnesses, as they unsuccessfully sought both formal and informal clarification of the issue. A contemporaneous request to extend the time for the plaintiffs' certification was denied by the district court.
The plaintiffs argue Dr. Vito and Dr. Pichler were their certified standard of care witnesses. However, at the August 1, 2001, summary judgment hearing the plaintiffs revealed Dr. Vito had declined to testify as to the standard of care. Significantly, within the nearly two-page, primarily medical description of the purpose of Dr. Vito and Dr. Pichler's testimony, only Dr. Vito was listed as providing an opinion regarding the applicable standard of care and its breach. Even considering the remainder of the description of purpose, we cannot conclude the plaintiffs designated Dr. Pichler as a standard of care expert. See Hantsbarger, 501 N.W.2d at 504 ("Designations which require further inquiry and discovery prolong the trial . . . and are at odds with the purposes of section 668.11(1)."). Accordingly, the district court correctly concluded that the plaintiffs failed to timely certify standard of care experts.
Although the plaintiffs contend neither doctor was required to be certified, a treating physician expected to provide testimony as to standard of care or causation must be certified under section 668.11. See Cox v. Jones, 470 N.W.2d 23, 25 (Iowa 1991).
The plaintiffs appear to argue Dr. Vito's late refusal to provide a standard of care opinion demonstrated good cause for an extension and entitled them to substitute two new, previously uncertified standard of care experts only a month before the designated trial date. We cannot agree, as there is no showing the district court abused its broad discretion when it determined good cause had not been shown. Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct.App. 1998). The court was free to reject the plaintiffs' unsubstantiated claim of surprise at Dr. Vito's defection, Nedved v. Welch, 585 N.W.2d 238, 240 (Iowa 1998), particularly as the new experts were named approximately fifteen months beyond the certification deadline, allowing a late certification would create yet further delay in a nearly two-year-old case, and as the plaintiffs had been dilatory regarding their expert discovery despite repeated attempts by the defendants to clarify and resolve outstanding issues. See Hill, 590 N.W.2d at 54-55.
If the plaintiffs are arguing they demonstrated good cause for an extension at the time of the June 1, 2000, designation, it was not an abuse of discretion by the district court to conclude that neither the defendants' failure to independently produce David Bernholtz's medical records, nor the need to further develop the record as to the extent of injury or damages, established good cause for failure to make a timely liability certification.
Although we could affirm the district court's decision solely on the plaintiffs' noncompliance with section 668.11, we further note there was no abuse of discretion in precluding expert testimony for noncompliance with rule 1.508. Despite repeated requests by the defendants, no rule 1.508 responses were provided until June 25, 2001, over a year beyond the court deadline, and over three months after the defendants filed their summary judgment motion. Contrary to the plaintiffs' position, there is no basis for excluding Dr. Pichler from the requirements of rule 1.508, merely because he is primarily a treating physician. See Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 323 (Iowa 1997).
Because the plaintiffs failed to comply with the rules governing expert certification and discovery, the court was within its discretion to exclude from testimony the expert opinions as to standard of care and breach. Without such testimony, the plaintiffs cannot establish either a prima facie case for medical negligence or a claim of lack of informed consent. Kennis, 491 N.W.2d at 166; Oswald, 453 N.W.2d at 635. As such, summary judgment was appropriate. Having considered all of the plaintiffs' arguments, we conclude the district court must be affirmed.