Mohammed v. Otoadese

• Decision Date: 14 September 2007
• Docket Number: No. 05-1670.,05-1670.
• Citation: 738 N.W.2d 628
• Parties: Sharon MOHAMMED and Doris Whigham Curry, as Co-Administrators of the Estate of Jerry Whigham, Appellants, v. E. Anthony OTOADESE, M.D., Appellee.
• Court: Iowa Supreme Court

738 N.W.2d 628

Sharon MOHAMMED and Doris Whigham Curry, as Co-Administrators of the Estate of Jerry Whigham, Appellants, v. E. Anthony OTOADESE, M.D., Appellee.

No. 05-1670.

Supreme Court of Iowa.

September 14, 2007.

D. Raymond Walton of Beecher Law Offices, Waterloo, for appellants.

Jennifer E. Rinden, Connie Alt, and Sarah J. Gayer of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.

STREIT, Justice.

Following a defense verdict in a medical malpractice case, the estate of Jerry Whigham sought a new trial claiming it was prejudiced by the erroneous admission of certain evidence. The court of appeals granted a new trial based on testimony concerning Whigham's prior lawsuit against Hy-Vee for a slip-and-fall injury. Although the testimony should not have been admitted, we vacate the decision of the court of appeals because we find the evidence was not prejudicial to the estate. Moreover, we find neither evidence of payments by Medicare and Medicaid nor evidence of Whigham's failure to follow his doctors' recommendations prejudiced the estate. We vacate the decision of the court of appeals and affirm the district court's denial of the estate's motion for a new trial.

I. Facts and Prior Proceedings.

Jerry Whigham was referred to Dr. E. Anthony Otoadese for an enlarged thyroid. Dr. Otoadese is a cardiothoracic and vascular surgeon in Waterloo. Whigham's thyroid had enlarged to the extent it was pressing on his trachea, right lung, and superior vena cava, a large vein. In February 2001, Dr. Otoadese performed surgery by opening Whigham's chest and removing the enlarged thyroid. During this process, Whigham's recurrent laryngeal nerves were injured.

After the surgery Whigham was unable to breathe normally. He was diagnosed with bilateral paralysis of his vocal cords. A tracheostomy tube was installed which allowed Whigham to breathe through the tube. In December 2002, Whigham removed the tube to clean it, and was unable to replace it. His sister attempted to help him, but she was also unable to get the tube back into his throat. Whigham suffered cardiac arrest and went into a coma.

In February 2003, Sharon Mohammed, who was Whigham's niece and conservator, filed a medical malpractice action against Dr. Otoadese, claiming during the surgery in 2001 Dr. Otoadese negligently damaged Whigham's recurrent laryngeal nerves. Whigham died while the suit was pending. Mohammed and Whigham's sister, Doris Whigham Curry, as co-administrators of Whigham's estate, were substituted as the plaintiffs in the action.

At trial, the fighting issue was whether Dr. Otoadese breached the standard of care by removing Whigham's thyroid through his chest rather than through his neck. The estate presented the expert testimony of two doctors. Dr. Russell Smith, an ear, nose and throat specialist, testified an enlarged thyroid should be removed through the neck because there is a better chance of protecting the recurrent laryngeal nerves during surgery. Dr. Richard Waldorf, a retired general surgeon, testified Dr. Otoadese breached the applicable standard of care by failing to identify and protect the recurrent laryngeal nerves during surgery.

In his defense, Dr. Otoadese testified Whigham had a rare type of enlarged thyroid because it was very large and was about ninety-five percent in the chest area. He agreed most enlarged thyroids can be removed through the neck, but stated the specific circumstances of this case were such that Whigham's enlarged thyroid had to be removed through the chest. He testified he did not look for the recurrent laryngeal nerves because Whigham was not in very good health, and he wanted to remove the enlarged thyroid as quickly as possible.

Additionally, three other doctors testified on behalf of Dr. Otoadese. Dr. Marnix Verhofste, a cardiothoracic surgeon, and Dr. Courtney Harris, a retired cardiovascular and thoracic surgeon, both testified Dr. Otoadese properly removed Whigham's thyroid through the chest based on the thyroid's unusually large size and location. Dr. Verhofste stated that during this type of surgery it is very difficult to find the recurrent laryngeal nerves. Dr. Louis Alt, an ear, nose and throat specialist, testified Dr. Otoadese acted in a reasonable manner.

The jury returned a verdict in favor of Dr. Otoadese. The estate filed a motion for new trial, contesting several evidentiary rulings. The district court denied the motion for new trial. The estate appealed arguing the trial court erred by: (1) permitting Dr. Otoadese to introduce evidence of Whigham's lawsuit against Hy-Vee; (2) permitting the introduction of evidence that Whigham's medical bills were paid by Medicare and Medicaid; (3) not permitting Dr. Smith to testify about a certain medical treatise; (4) prohibiting the estate from introducing evidence that Dr. Otoadese did not have privileges to perform thyroidectomies at Allen Hospital; (5) refusing to admonish the jury to disregard the display of emotion by Dr. Otoadese; (6) permitting Dr. Otoadese to introduce evidence of Whigham's noncompliance with his doctors' recommendations in the years before the surgery; and (7) refusing to grant a new trial based on the cumulative effect of the alleged errors.

The court of appeals granted the estate a new trial. It held the trial court abused its discretion by ruling the evidence of Whigham's action against Hy-Vee was admissible. The court found the trial court did not err in allowing evidence of payments made on behalf of Whigham by Medicare and Medicaid. It made no decision regarding the treatise or Dr. Otoadese's privileges. Finally, it held evidence of Whigham's noncompliance may be admissible on retrial if it is determined to be relevant to the issue of proximate cause.

Both parties sought further review, which we granted. Dr. Otoadese argues the court of appeals should not have granted a new trial because the evidence concerning Whigham's action against Hy-Vee was not prejudicial to the estate. The estate argues the court of appeals properly granted a new trial based on the admission of evidence of the Hy-Vee lawsuit but erred with respect to the evidence of payments by Medicare and Medicaid and Whigham's noncompliance. The estate urges this court to affirm the court of appeals' granting of a new trial but requests we prohibit on retrial the admission of evidence of Medicare and Medicaid payments and Whigham's noncompliance. For the reasons that follow, we vacate the decision of the court of appeals and affirm the district court.

II. Scope of Review.

We review the district court's determination of relevancy and admission of relevant evidence for an abuse of discretion. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000); Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). An abuse of discretion exists when "the court exercised [its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997) (citing State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997)).

III. Merits.

A. Prior Lawsuit Against Hy-Vee.

Before trial, the estate filed a motion in limine requesting an order prohibiting the defense from presenting any evidence regarding a lawsuit Whigham filed against Hy-Vee for a slip-and-fall injury that occurred at one of its grocery stores in 2000. In resisting the motion, defense counsel argued the Hy-Vee lawsuit was relevant to rebut the estate's contention Whigham intended to file the present case against Dr. Otoadese but was not able to do so before slipping into a coma. Counsel stated

we think it is very relevant that [Whigham] found his way to a lawyer [after Dr. Otoadese removed his thyroid] and got a lawsuit on file, but it wasn't this one. It was a case against Hy-Vee. And that's what we want to offer it for.

Counsel for the estate responded: "this is an attempt to try to make it look like Mr. Whigham was [a] litigious person. . . . That's the danger here, and this is really more prejudicial than probative. . . ." The court ruled Dr. Otoadese could offer evidence of the Hy-Vee lawsuit.

On appeal, defense counsel now contends she was only trying to impeach Curry who testified about her brother and his life. Defense counsel attempted to show Curry did not know her brother as well as she claimed. After Curry acknowledged she did not know much about Whigham's other medical conditions, defense counsel asked Curry about her knowledge of the Hy-Vee lawsuit:

Q. What did [Whigham] tell you about falling in a store? A. He said he just tripped over a banana peeling or something. I think that's what he said. He said no more to me about it. I don't know anything else about it.

Q. Was that an incident involving that, you believe, occurred at the Hy-Vee store? A. I think so.

. . . .

Q. And that would have been in 2000, February of 2000. Are you aware that he filed a lawsuit about that?. . . . A. I don't know.

. . . .

Q. He didn't discuss whether or not he filed a lawsuit? A. Right.

. . . .

Q. So you don't know anything about Jerry filing a lawsuit in February 2002 about a fall at the Hy-Vee store. . . . .

A. I have the same answer. I do not know anything about it.

Q. And just so I'm clear, ma'am, in February of 2002 that was before Mr. Whigham had come to stay with you prior to his death; correct? A. I think so.

We find the trial court abused its discretion in allowing defense counsel to cross-examine Curry about the Hy-Vee lawsuit. Whigham's lawsuit against Hy-Vee was not relevant because it did not "hav[e] any tendency to make the existence of any fact that is of consequence to the determination of the [present] action more probable or less probable . . . ." Iowa R. Evid. 5.401 (defining relevant evidence). On appeal, Dr. Otoadese argues the subject was properly broached because the estate raised the subject of Whigham's "affairs" on direct examination. See State v. Holmes, 325 N.W.2d 114, 117 (Io...