Kennis v. Mercy Hosp. Medical Center, 91-345

• Decision Date: 21 October 1992
• Docket Number: No. 91-345,91-345
• Citation: 491 N.W.2d 161
• Parties: Daniel Mark KENNIS, Appellant, v. MERCY HOSPITAL MEDICAL CENTER, Surgical Affiliates Professional Corporation, Foreman and Dick Professional Corporation, James Caterine, and Hugh C. Dick, Appellees.
• Court: Iowa Supreme Court

Page 161

491 N.W.2d 161

Daniel Mark KENNIS, Appellant, v. MERCY HOSPITAL MEDICAL CENTER, Surgical Affiliates Professional Corporation, Foreman and Dick Professional Corporation, James Caterine, and Hugh C. Dick, Appellees.

No. 91-345.

Supreme Court of Iowa.

Oct. 21, 1992.

Rehearing Denied Nov. 25, 1992.

Daniel Mark Kennis, pro se.

Glenn Goodwin, Duncan, Jones, Riley & Finley, P.C., Des Moines, for appellee Mercy Hosp. Medical Center, and for amicus curiae Iowa Medical Soc.

Chester Woodburn, Hansen, McClintock & Riley, Des Moines, for appellees Foreman & Dick, P.C. and Hugh C. Dick.

Michael H. Figenshaw and Robert A. Sims, Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee James Caterine and Surgical Affiliates, P.C.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, SNELL, and ANDREASEN, JJ.

SCHULTZ, Justice.

The issue in this medical malpractice action is whether summary judgment for defendants is proper where plaintiff has no expert witness to establish defendants' negligence. The district court granted defendants' motion for summary judgment. The court of appeals affirmed in part and reversed in part. We agree with the ruling of the district court and vacate the court of appeals' decision.

Daniel Mark Kennis (plaintiff) commenced this action against Mercy Hospital Medical Center (Mercy), Surgical Affiliates Professional Corporation (Surgical Affiliates), James Caterine, Foreman and Dick Professional Corporation (Foreman and Dick) and Hugh C. Dick. Caterine, a surgeon with Surgical Affiliates denies plaintiff's allegations that he was an agent of Surgical Affiliates at the time in question. Dick, a urologist, is an employee of Foreman and Dick.

Plaintiff received an intestinal bypass operation on May 12, 1971, performed by Edward Drew, a surgeon at Mercy in Des Moines. This procedure requires the patient to be catheterized during the operation. A blockage in plaintiff's urethra was encountered during the operation and Drew was only able to insert the catheter through the use of a filiform dilator.

Plaintiff was dissatisfied with the bypass because of chronic abdominal pain and diarrhea. His wife prevailed upon Mercy to provide him a reversal of the bypass at no expense. Mercy agreed and secured the services of Caterine at no charge to plaintiff. Caterine performed the surgery on December 16, 1987, after plaintiff signed a consent form. Plaintiff was informed that a catheter would be inserted during the operation.

During the course of the surgical procedure, a complication developed. After plaintiff was anesthetized, Caterine was unable to insert a catheter through the urethra and called in Dick to assist. Dick performed a suprapubic cystostomy, a procedure that involves making an incision into the bladder to insert a catheter.

The suprapubic cystostomy tube became dislodged after surgery and on December 19, Dick performed a corrective operation on plaintiff to replace the tube. Plaintiff was discharged from Mercy on December 26. Four days later, an infection of the suprapubic incision required plaintiff to return to Mercy and undergo another corrective operation. This operation was performed by another surgeon not a party to this action.

On December 5, 1989, plaintiff filed a petition bringing a malpractice action against defendants. The petition, as amended, included claims of negligence, a claim of lack of informed consent, and battery against all defendants. These claims only involved matters arising from the cystostomy procedures and did not involve the intestinal bypass surgery. Plaintiff alleges the procedure caused him to gain weight, suffer seizures, lose his eyesight, become impotent, and develop a thyroid condition, a heart condition, sleep apnea, diabetes, and constipation.

On June 15, 1990, plaintiff filed a late certification of an expert witness ¹, surgeon Drew, and requested an extension to certify additional expert witnesses. The district court allowed the certification of Drew but denied the request for an extension. Following Drew's deposition, in which he stated that he could not say whether or not there was any negligence in plaintiff's treatment, defendants filed a motion for summary judgment. Defendants argued that plaintiff could not establish his claims without the testimony of an expert witness and the time period for plaintiff to certify an expert had expired. The district court granted defendants' motion for summary judgment and plaintiff appealed.

Plaintiff urged the trial court erred (1) in requiring expert witness testimony to establish defendants' negligence when the issue of negligence is within the comprehension of a lay person; (2) in requiring expert testimony to generate a jury question under the doctrine of res ipsa loquitur; and (3) in overruling his claim that any law requiring expert testimony in a medical malpractice case is unconstitutional.

The court of appeals reversed the district court on the issue of Caterine's negligence in not discovering the blocked urethra before surgery and on the issue of whether Caterine and Dick obtained informed consent for the cystostomy procedure. We granted defendants' request for further review. Plaintiff did not seek further review, but did resist defendants' application.

Summary judgment is proper "when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law." Brown v. Monticello State Bank, 360 N.W.2d 81, 83-84 (Iowa 1984); Iowa R.Civ.P. 237(c). In reviewing a summary judgment in a medical malpractice action, the "task is to determine whether any evidence in the summary judgment record enables plaintiffs to establish the applicable standards of care, and defendant's breach of those standards." Cox v. Jones, 470 N.W.2d 23, 26 (Iowa 1990). In a summary judgment case such as this, the "issue becomes not whether there was negligence in the actions of the defendant but whether there was evidence upon which liability could be found." Id.

I. Battery. In his petition, plaintiff alleges battery on the part of defendants. On appeal and in resistance to further review, plaintiff urges no consent was given to the cystostomy procedure; therefore, a battery was committed upon him. He maintains his consent to the surgery to reverse his bypass did not include consent to the cystostomy.

We have distinguished between the claims of battery and those based on negligence. Perin v. Hayne, 210 N.W.2d 609, 618 (Iowa 1973). We quoted from a statement in Cobbs v. Grant, 104 Cal.Rptr. 505, 502 P.2d 1 (1972) as follows:

The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.

Id. at 511, 502 P.2d at 7-8.

Plaintiff was informed that catheterization was necessary. In his consent form, plaintiff agreed to the performance of operations and procedures different from those contemplated that his doctor considered necessary or advisable in the course of the operation. In order to sustain a battery claim, we believe that it was necessary for plaintiff to obtain expert testimony to show that the cystostomy was a totally different type of treatment from that to which he consented rather than an inherent complication that may occur when catheterization is required. Consequently, we agree that summary judgment should have been granted on this claim. We will discuss the matter of informed consent in connection with the negligence claim.

II. Negligence. We first discuss certain principles of negligence in a medical malpractice case. In order to establish a prima facie case of medical malpractice, plaintiff must show evidence which establishes the applicable standard of care, demonstrate this standard has been violated, and develop a causal relationship between the violation and the alleged harm. Daboll v. Hoden, 222 N.W.2d 727, 734 (Iowa 1974).

This court has recognized three means of establishing specific negligence of a physician:

One is through expert testimony, the second through evidence showing the physician's lack of care so obvious as to be within comprehension of a layman, and the third, (actually an extension of the second) through evidence that the physician injured a part of the body not involved in the treatment. The first means is the rule and the others are exceptions.

Perin, 210 N.W.2d at 613. Generally, when the ordinary care of a physician is an issue, only experts can testify and establish the standard of care and the skill required. Welte v. Bello, 482 N.W.2d 437, 439 (Iowa 1992); Perin, 210 N.W.2d at 613.

In his petition and on appeal, plaintiff has made various allegations of conduct which he believes violated the applicable standards of care of a physician to his patient. We shall discuss them in turn.

Plaintiff alleged that the initial installation of the cystostomy tube was improperly placed. He also generally alleged defendants provided improper care and treatment. We agree with the district court's and the court of appeals' conclusion that these allegations of negligence clearly require expert testimony to establish an applicable standard of care and a violation of that standard. Whether or not the tube was properly placed is a matter not within the comprehension of an average layperson. The same is true as to his allegations that he generally received improper care and treatment.

Plaintiff...