Kulish v. Ellsworth, 95-1837

• Decision Date: 23 July 1997
• Docket Number: No. 95-1837,95-1837
• Parties: Norma KULISH, as Administrator of the David Leroy Kulish Estate; Amy Kulish, a Minor, by Norma Kulish, her Mother and Next Friend; Jennifer Kulish, a Minor, by Norma Kulish, her Mother and Next Friend, Appellants, v. Francis James ELLSWORTH, Randall O. Butikofer, and Cresco Medical Center, P.C., Covenant Medical Center, and Covenant Air Care Services, Defendants, and Jennifer L. Schriever, Yvonne Smith, Arden Smutzler, Howard County Hospital, and Howard County Hospital Ambulance Services, Appellees, and Howard County, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 885

566 N.W.2d 885

Norma KULISH, as Administrator of the David Leroy Kulish Estate; Amy Kulish, a Minor, by Norma Kulish, her Mother and Next Friend; Jennifer Kulish, a Minor, by Norma Kulish, her Mother and Next Friend, Appellants, v. Francis James ELLSWORTH, Randall O. Butikofer, and Cresco Medical Center, P.C., Covenant Medical Center, and Covenant Air Care Services, Defendants and Jennifer L. Schriever, Yvonne Smith, Arden Smutzler, Howard County Hospital, and Howard County Hospital Ambulance Services, Appellees, and Howard County, Iowa, Appellee.

No. 95-1837.

Supreme Court of Iowa.

July 23, 1997.

Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for Appellants.

George L. Weilein of Gallagher, Langlas & Gallagher, Waterloo, for Appellees Jennifer L. Schriever, Yvonne Smith, Arden Smutzler, Howard County Hospital, and Howard County Hospital Ambulance Services.

Peter J. Gartelos and Timothy D. Ament of Gartelos, Wagner & Ament, Waterloo, for Appellee Howard County.

Considered by HARRIS, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

NEUMAN, Justice.

David LeRoy Kulish died of a heart attack while receiving emergency medical attention following a motor vehicle accident. Kulish's surviving spouse, Norma, as administrator of David's estate and next friend of their two minor children (hereafter collectively referred to as "plaintiffs"), filed suit for medical malpractice, including claims against the county, county hospital, county ambulance service, and county employees who provided emergency care. ¹ The district court, relying on the governmental immunity provided by Iowa Code sections 670.4(11) and 670.12 (1995), granted summary judgment to these defendants. We affirm.

I. Background Facts and Proceedings.

David Kulish and Francis Ellsworth were involved in an automobile collision in February 1995. A highway patrolman who arrived at the scene called for two helicopter ambulances. One helicopter was dispatched by Covenant Air Care Services in Waterloo. Due to poor weather conditions, the second helicopter remained grounded in Rochester, Minnesota; instead, a vehicular ambulance was dispatched to the scene by defendant Howard County Hospital Ambulance Services in Cresco.

Because Ellsworth's injuries appeared more serious than those suffered by Kulish, the emergency personnel at the scene determined that Ellsworth should be flown to Covenant Medical Center. Kulish, meanwhile, was extricated from his overturned van and transported by ambulance to defendant Howard County Hospital. Emergency medical technicians (EMTs) Yvonne Smith and Arden Smutzler attended to his injuries.

When Kulish arrived at the Howard County Hospital emergency room, attending physician Randall Butikofer ordered his immediate transfer to the Mayo Clinic. The doctor also directed that Jennifer Schriever, a registered nurse, administer aid during the transport. EMTs Smith and Smutzler accompanied Kulish and the nurse from Cresco to Rochester. While en route, Kulish went into cardiac arrest, a grave turn of events requiring further--and ultimately unsuccessful--emergency procedures. He was pronounced dead shortly after his arrival at St. Mary's Hospital in Rochester.

Plaintiffs brought a medical malpractice action against the county and its hospital ambulance service, and emergency personnel alleging various claims grounded on theories of negligence, res ipsa loquitur, and vicarious liability. ² All defendants denied liability. Howard County answered separately, denying it could be held vicariously liable for the alleged negligence of the county hospital and its ambulance service or their employees. In a later motion for summary judgment, Howard County renewed this claim, asserting its board of supervisors exercised no control over the operation or management of the county hospital and, therefore, could not be found vicariously liable as a matter of law. The district court denied the motion, finding the county's ownership of the hospital raised a factual question regarding its authority over the hospital's operation.

Without objection by the plaintiffs, defendants Howard County Hospital, Howard County Hospital Ambulance Services, and county employees Schriever, Smith and Smutzler amended their answer to assert the affirmative defense of governmental immunity for actsor omissions related to an emergency response. See Iowa Code § 670.4(11). These defendants then moved for summary judgment based on this theory. The court immediately set the matter for hearing eighteen days hence.

Upon receiving notice of the summary judgment hearing, plaintiffs requested additional time under Iowa rule of civil procedure 237(c) to oppose it. The defendants resisted the proposed delay. Plaintiffs then supplemented their resistance to the motion, requesting additional time to file affidavits in accordance with rule of civil procedure 237(f).

The court conducted the hearing as scheduled, at which time it considered, and rejected, plaintiffs' requests for continuance. The court then granted defendants summary judgment, citing three reasons for finding them immune from liability as a matter of law: (1) plaintiffs' claims, based on alleged acts or omissions in connection with "an emergency response," fall within the exemption of Iowa Code section 670.4(11); (2) the alleged acts or omissions of the individual defendants Schriever, Smith, and Smutzler did not constitute "reckless misconduct" within the meaning of Iowa Code section 670.12; and (3) the county hospital and its ambulance service are "municipalities" within the meaning of Iowa Code section 670.4.

Plaintiffs moved to enlarge or amend the court's order under Iowa rule of civil procedure 179(b). In particular, plaintiffs asked the court to address the constitutionality of Iowa Code sections 670.4 and 670.12, the issue which had allegedly prompted them to request additional research time to oppose the motion for summary judgment. The court denied the motion and overruled plaintiffs' equal protection claim. The court also dismissed plaintiffs' case against Howard County, finding that all parties for whom the county could have been found vicariously liable had been dismissed from the action.

Plaintiffs now appeal, contending the court abused its discretion in refusing their requests for additional time to resist defendants' motion for summary judgment and to file affidavits. Additionally, plaintiffs argue that the district court erred in sustaining defendants' motion for summary judgment. They challenge the constitutionality of the immunity provision and argue that the immunity from liability provided in section 670.4(11) for "emergency response" does not apply to the facts underlying this cause of action.

Howard County--although dismissed from the case--cross-appeals, seeking reversal of the district court's interlocutory ruling that denied it summary judgment.

II. Scope of Review.

Malpractice actions, like other suits resting on claims of negligence, ordinarily are not susceptible of summary adjudication. Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). Here, however, the court accepted the plaintiffs' recitation of the facts and granted judgment to the defendants based on statutory governmental immunity. Where the only dispute concerns legal consequences flowing from undisputed facts, our review is limited to whether the district court correctly applied the law. Baker v. City of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997). To the extent plaintiffs challenge the court's ruling on constitutional grounds, our review is de novo. Id.

III. Additional Time to Resist and File Affidavits.

Plaintiffs begin by contending the district court abused its discretion in denying their request to reset the hearing on defendants' motion for summary judgment in order to permit additional time to prepare their resistance. The following timetable illuminates plaintiffs' argument: On September 1, 1995, defendants filed their motion for summary judgment. This was forty-seven days prior to the scheduled trial date of October 18. See Iowa R. Civ. P. 237(c) ("The motion shall be filed not less than forty-five days prior to the date the case is set for trial, unless otherwise ordered by the court."). The court ordered a hearing date of September 19. Plaintiffs received their copy of the motion and the order setting hearing on September 5.

Iowa rule of civil procedure 237(c) provides that "the time fixed for hearing [on a motion for summary judgment] shall be not less than twenty days after the filing of the motion, unless a shorter time is ordered by the court." Plaintiffs assert that compliance with this rule required the court to reset the hearing to September 26, 1995, a date twenty days from the time they received notice of the filing. They misread the rule. The twenty days commences from the date when the motion is filed, not when it is received by the opposing party. Moreover, rule 237(c) explicitly gives the court discretion to hold the hearing within "a shorter time."

To prevail on appeal, plaintiffs must establish that the district court abused its discretion in imposing the challenged time constraints, that is, that its discretion was exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Vaughan v. Must, Inc., 542 N.W.2d 533, 543 (Iowa 1996). In support of their claim, plaintiffs argue that because the case was complex and involved over twenty expert and lay witnesses, with six more depositions yet to be taken, extra time was required to prevent prejudice to their case.

We are not persuaded that plaintiffs have demonstrated any abuse of discretion by the district court. The court acted within the flexible parameters given it under the rule. Although it set the matter for hearing eighteen days after defendants filed their motion for summary judgment, rather than the twenty days indicated by rule 237(c), plaintiffs have failed to establish...