Daboll v. Hoden

• Decision Date: 16 October 1974
• Docket Number: No. 56062,56062
• Citation: 222 N.W.2d 727
• Parties: Charles A. DABOLL, Administrator of the Estate of Alan Gregory Daboll, Deceased, Appellant, v. Edward Frederick HODEN, Jr., et al., Appellees.
• Court: Iowa Supreme Court

Page 727

222 N.W.2d 727

Charles A. DABOLL, Administrator of the Estate of Alan Gregory Daboll, Deceased, Appellant, v. Edward Frederick HODEN, Jr., et al., Appellees.

No. 56062.

Supreme Court of Iowa.

Oct. 16, 1974.

David E. Richter and Lyle A. Rodenburg, Council Bluffs, for appellant.

Johnson, Stuart, Tinley, Peters & Thorn, of Council Bluffs, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

MASON, Justice.

This interlocutory appeal by plaintiff involves only the defendant-doctors in a wrongful death action brought by Charles A. Daboll as administrator of the estate of Alan Gregory Daboll. Plaintiff's decedent was a pedestrian who was struck by an automobile at 11:44 a.m. January 21, 1970, taken to the hospital at 12:20 p.m. and there treated by defendant-doctors after which treatment Alan Daboll died at 9:25 p.m. January 22.

Defendant, Edward Frederick Hoden, Jr., was the owner and driver of the vehicle which struck and injured decedent. Defendants, George H. Pester, M.D., Donald T. Stroy, M.D., and Robert H. Westfall, M.D., are the physicians who treated decedent after his admission to the defendant, Jennie Edmundson Memorial Hospital in Council Bluffs.

The administrator appeals from the ruling of the trial court sustaining the motion of the doctors for summary judgment.

Plaintiff's petition is in three divisions. In division 1 he seeks damages on behalf of the dependents of Alan Daboll; in the second, damages for pain and suffering endured by decedent prior to his death, expenses for medical and hospital care; and in the third, damages for loss to his estate is asked.

Plaintiff alleged in paragraph 9 of each division of his petition the doctors' negligence in one or more of the following particulars was a proximate cause of decedent's death: (a) in failing to examine Alan Gregory Daboll in the accepted and proper medical manner; (b) in failing to exercise due medical care and skill in examining X rays showing Alan Gregory Daboll had a skull fracture; (c) in failing to administer in the accepted and proper medical manner, medical care and treatment for Alan Gregory Daboll's epidural hemotoma; and (d) in failing to prescribe the proper medication in the care and treatment for Alan Gregory Daboll's epidural hemotoma.

The doctors denied, by separate answer, the specifications of negligence and that Alan's death was proximately caused by their negligence.

At the time of filing their answer the doctors also filed interrogatories to be answered by plaintiff. So far as relevant to this appeal, the interrogatories asked plaintiff with respect to each of the four specifications of negligence to describe in detail the standard of care which the doctors should have observed, the manner in which they failed to do so and to furnish the name, address and medical specialty of any medical expert who had expressed the opinion defendants were negligent as alleged.

Six weeks after the interrogatories were filed an order was entered directing plaintiff to file his answers within 10 days. Within that period the court, on plaintiff's application, granted an additional 20 days in which to file answers. Plaintiff had not answered these interrogatories at the time of perfecting this appeal.

Five months after filing answer the doctors moved for summary judgment on the grounds there was no genuine issue of any material fact. Attached to the motion was an affidavit by Dr. Pester and a copy of the report of his physical examination of decedent upon admission to the hospital.

The following is a summary of Dr. Pester's affidavit:

(1) He examined decedent upon his admission to the hospital.

(2) The initial diagnosis was abrasions and contusions in various parts of the body and a 'history of cerebral concussion.' (The 'history' was apparently based upon affiant's knowledge of the auto accident and decedent's statement he had no recollection of the accident.)

(3) Skull X rays ordered by affiant and examined by a radiologist were normal.

(4) Decedent's vital signs remained stable for the 24 hours he was under close observation.

(5) After 24 hours decedent was transferred to routine floor care and seen by Dr. Story at approximately 5:45 p.m. at which time decedent was sleeping.

(6) Decedent died at approximately 9:15, January 22.

(7) An autopsy revealed 'small linear skull fracture with no evidence of fragmentation or depression' and associated epidural hemorrhage.

(8) Cause of death was reported to be 'herniation of the cerebellum into the foramen magnum due to cerebral edema resulting from epidural hemotoma and the linear skull fracture.'

The final paragraph of the affidavit states:

Based upon my education, training and experience as a physician and surgeon, it is my opinion that defendants * * * Stroy, * * * Westfall, M.D., and myself, in the examination, care and treatment of Alan Gregory Daboll, exercised the degree of knowledge, skill, care and attention ordinarily exercised by physicians and surgeons under like circumstances in * * * Council Bluffs and like communities, that the nature of the linear fracture was such that it would not be discovered on an x-ray of the skull and that the death of Alan Gregory Daboll did not result from any failure on our part to exercise such degree of knowledge, skill, care and attention.'

Referring to Pester's affidavit plaintiff's resistance stated in part:

'That the facts contained in said defendants' affidavit * * * are and will be vigorously controverted in a trial * * * in that the genuine facts * * * are not as stated in said affidavit, and that when all the facts are presented, additional information not contained in said affidavit will be presented to the Court and the jury.'

An affidavit by decedent's mother stated she observed her son hazy, dazed and with obvious head injuries when first treated at the hospital. Upon later visits she observed her son suffering from nausea, vomiting, reacting to light, unconscious and continually complaining of head injuries. She stated it was obvious to her decedent had a head injury which would require close medical supervision, observation and testing. Finally, the decedent was unattended 'for all practical purposes for eight or nine hours prior to his death and no vital sign check was made during such period.'

All hospital records were also attached and the resistance stated such contained entries 'controverting the allegations of defendants' affidavit.'

The trial court's ruling sustaining the motion for summary judgment and dismissing plaintiff's petition as to defendant-doctors is based primarily on the premise that due to the nature of the negligent acts alleged against defendant-doctors, expert testimony was required to sustain such specifications. The court expressed the view the exception to the rule requiring expert testimony to establish malpractice recognized in Grosjean v. Spencer, 258 Iowa 685, 692, 140 N.W.2d 139, 144 and Sinkey v. Surgical Associates, 186 N.W.2d 658, 660--662 (Iowa 1971), was not applicable since this is not a situation where the physician's lack of care was so obvious as to be within the comprehension of the layman's common knowledge or experience. The court also expressed the opinion that if it had before it the same record on a motion by defendant-doctors for a directed verdict the court would have no choice except to sustain the motion.

I. In written brief and argument the parties have stated their respective view as to the issues presented for review by this appeal. A problem presented at the outset by these stated issues is whether the trial court properly entered summary judgment dismissing plaintiff's action for decedent's death based upon specific acts of alleged negligence by defendant-doctors in rendering medical treatment when those specifications were denied by the doctors.

Rule 237, Rules of Civil Procedure, provides in part:

'* * *

'(e) Form of affidavits; Further testimony; Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or filed therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or oral testimony. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

The purpose of the rule is to avoid useless trials. Where there is no genuine issue of fact to be decided, the party with a just cause should be able to obtain a judgment promptly and without the expense and delay of a trial. Bauer v. Stern Finance Company, 169 N.W.2d 850, 853 (Iowa 1969); Jensen v. Voshell, 193 N.W.2d 86, 88 (Iowa 1971); and Davis v. Comito, 204 N.W.2d 607, 608, (Iowa 1973). 'In ruling on a motion for summary judgment, the court's function is to determine whether such a genuine issue exists, not to decide the merits of one which does.' Bauer v. Stern Finance Company, 169 N.W.2d at 853.

The burden is upon the party moving for summary judgment to show absence of any genuine issue of a material fact. All material properly before the court must be viewed in the light most favorable to the opposing party. Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970); Continental Ill. Nat. B. & T. Co. v. Security State Bank, 182 N.W.2d 116, 118 (Iowa 1970); and Davis v. Comito, 204 N.W.2d at 612.

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