McGrew v. Otoadese

Docket Number19-2137
Decision Date21 January 2022
CourtIowa Supreme Court

Submitted December 15, 2021

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

Plaintiffs seek further review of a court of appeals decision that affirmed a defense verdict in a medical negligence case contending that the district court erred in excluding expert opinions.

Martin A. Diaz (argued), Martin Diaz Law Firm, Swisher, for appellants.

Nancy J. Penner (argued), Jennifer E. Rinden, and Vincent S. Geis of Shuttleworth & Ingersoll, Cedar Rapids, for appellees.

Mansfield, J., delivered the opinion of the court, in which all participating justices joined. Oxley, J., took no part in the consideration or decision of the case.


I. Introduction.

A patient suffered a disabling stroke after undergoing surgery to relieve stenosis, or narrowing, of the carotid artery. The patient's family promptly sought a second opinion from a neurologist. He read the CT angiogram as showing a lesser degree of stenosis and opined that the surgery had been unnecessary. He also referred the CT angiogram to a neuroradiologist who likewise interpreted the angiogram as showing a lesser degree of stenosis.

Later, the patient brought a medical malpractice suit against the surgeon. At trial, the patient was allowed to introduce evidence that both the neurologist and the neuroradiologist had read the angiogram as showing a lesser degree of stenosis. However, based on an alleged failure to provide proper pretrial disclosures, other evidence was excluded. Specifically, the neurologist was not permitted to testify that the surgeon fell below the standard of care; the neuroradiologist was not permitted to testify as to how he calculated the lesser degree of stenosis; and certain contemporaneous medical records were either admitted in redacted form or not admitted at all. The jury returned a no-negligence verdict in favor of the surgeon.

On our appellate review, we disagree with the district court's application of the pretrial disclosure requirements of Iowa Code section 668.11 (2016) and Iowa Rule of Civil Procedure 1.500(2). Neither the neurologist nor the neuroradiologist was retained for litigation purposes; to the contrary, they developed their opinions from being involved in patient care. This means no expert report under rule 1.500(2)(b) was required. Both physicians could offer expert opinions subject only to two disclosure requirements. First, if the opinions were not formed as a part of treatment, the witnesses had to be designated under section 668.11. Second, regardless of when the opinions were formed, they needed to be adequately disclosed under rule 1.500(2)(c). Both conditions were met here, so the physicians' testimony and contemporaneous medical records should have been admitted.

We also decline the surgeon's invitation to find that the error was harmless. At trial, the parties essentially agreed on the standard of care for when surgery would have been medically indicated. The trial centered instead on the degree of stenosis and other symptoms in the patient, a subject where the parties presented conflicting evidence. Ultimately, we conclude that the district court's erroneous ruling on permissible expert opinions unfairly hampered the patient in presenting his side of his case. Therefore, we reverse and remand for a new trial.

II. Background Facts and Proceedings.
A. Background Facts.

In 2014, William McGrew began experiencing transient foggy vision in one of his eyes.[1] McGrew went to an eye doctor, Dr. Richard Mauer, to seek relief from this problem on July 25, 2014. Upon examination, Dr. Mauer discovered that McGrew had a cataract that could explain his foggy vision. But Dr. Mauer wanted to rule out other possibilities. He ordered a bilateral carotid duplex ultrasound that was performed on August 6. The ultrasound showed "mild carotid stenosis," or narrowing of the carotid artery. The ultrasound was generally inconclusive, but according to Dr. Mauer, there was nothing to indicate immediate treatment was necessary. So McGrew and Dr. Mauer scheduled a cataract surgery to be performed on August 20. But McGrew wanted to further explore the possibility that a vascular problem could be causing his foggy vision. To this end, he was referred to Dr. Eromosele Otoadese, a cardiovascular surgeon.

Dr. Otoadese saw McGrew on August 18. Given that McGrew was sixty-nine years old, had a history of hypertension, and was suffering from transient foggy vision, Dr. Otoadese suspected carotid disease and recommended getting a CT angiogram to further investigate. The CT angiogram was done the same day at a local imaging center. A radiologist, Dr. Driss Cammoun, interpreted it as showing 65% stenosis, or narrowing, of the right carotid. Dr. Otoadese did his own review and interpreted the results to show 70% stenosis. This led him to believe McGrew was at a significant risk of a stroke. Dr. Otoadese recommended surgery, specifically a right carotid endarterectomy, to remove the plaque from the right carotid. He advised McGrew of the surgery's potential complications, the most common being a stroke. At Dr. Otoadese's recommendation, McGrew canceled the cataract surgery and scheduled the carotid surgery. McGrew signed the informed consent for the carotid surgery on August 27.

The surgery was performed by Dr. Otoadese on September 2. It initially seemed successful; there were no complications during the procedure or immediately after. But during the morning of September 3, McGrew experienced facial droop and weakness on his left side. A CAT scan and an MRI indicated that McGrew had suffered a stroke on the right side of his brain. A CT angiogram showed that the right carotid artery was blocked. After consulting with another doctor and discussing the situation with McGrew's family, Dr. Otoadese performed another operation to remove the carotid artery blockage. This second surgery was unsuccessful in alleviating McGrew's symptoms. He remains wheelchair-bound, unable to move his left side, and in need of nursing home care.

On September 26, McGrew and his family went to an appointment with Dr. Ivo Bekavac, a neurologist. Dr. Bekavac was trained to read neuroimaging studies and certified by the Neuroimaging Subspecialty Board. According to Dr. Bekavac, the McGrew family came to him "to get a second opinion and also establish the care." As part of Dr. Bekavac's standard procedure, he reviewed McGrew's file, including the original CT angiogram and corresponding report. Unlike Dr. Otoadese and Dr. Cammoun-who interpreted the CT angiogram to show 70% and 65% stenosis respectively-Dr. Bekavac read it as showing 40%. This was a significant discrepancy, so Dr. Bekavac asked a neuroradiologist, Dr. John Halloran, to analyze the CT angiogram as well. Dr. Halloran assessed the stenosis at 32% in a report dated October 9.[2] The McGrew family asked Dr. Bekavac whether he thought the carotid surgery performed by Dr. Otoadese was justified based on those numbers. Dr. Bekavac answered this question in his record of the visit, stating, "40% of stenosis was not significant to justify endarterectomy in my opinion." The family also asked about the second surgery, and Dr. Bekavac's report indicates he did not believe the second surgery was medically indicated, either, because McGrew had suffered his stroke more than eight hours earlier. In addition to offering opinions on the prior surgeries, Dr. Bekavac recommended continued use of aspirin, family involvement in stroke rehabilitation, an MRI of the lumbosacral spine, and a follow-up appointment. Dr. Bekavac did not comment on causation in his notes from this visit.

B. Proceedings in the District Court.

On July 29, 2016, McGrew and his wife, Elaine McGrew, brought a medical malpractice action against Dr. Otoadese and Dr. Cammoun.[3] The McGrews later settled with Dr. Cammoun, so trial proceeded only against Dr. Otoadese. The McGrews alleged that Dr. Otoadese negligently misinterpreted the CT angiogram and recommended an ill-advised surgery that resulted in a stroke. The McGrews sought damages including pain and suffering, permanent loss of function, loss of income, past and future medical expenses, and loss of consortium.

The McGrews filed a designation of experts on February 6, 2018. Four experts were disclosed: two retained experts and two treating physicians. The treating physicians designated as experts were Dr. Bekavac and Dr. Halloran. The designation described the topics of Dr. Bekavac's anticipated testimony:

Dr. Bekavac . . . will be asked to comment on the standard of care in the evaluation (imaging and surgery), care and treatment of an individual like Bill McGrew; the breach of that standard of care; the harm sustained by Bill McGrew; and the cause-and-effect relationship between the breach of the standard of care and any damages and injuries sustained by Bill McGrew and his spouse.

The disclosure relating to Dr. Halloran was similarly worded, the sole difference being that Dr. Halloran would only be asked about his evaluation of McGrew's imaging studies.

The defense served an interrogatory on the McGrews relating to their experts. The McGrews first answered this interrogatory with a summary of topics that each expert would cover. Later on March 7, the McGrews provided a "Supplement to Interrogatory 16 Pursuant to IRCP 1.500(2)(c)." The supplemented answer stated that "Dr. Ivo Bekavac[] and Dr. John Halloran may testify pursuant to previously produced medical records and Plaintiff's Designation...

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