Oswald v. LeGrand, 89-166

• Decision Date: 21 February 1990
• Docket Number: No. 89-166,89-166
• Citation: 453 N.W.2d 634
• Parties: Susan OSWALD and Larry Oswald, Individually and as Administrators of the Estate of Natalie Sue Oswald, Appellants, v. Larry R. LeGRAND, Barry Smith, Christopher Clark, and Mercy Health Center, Appellees.
• Court: Iowa Supreme Court

Page 634

453 N.W.2d 634

Susan OSWALD and Larry Oswald, Individually and as Administrators of the Estate of Natalie Sue Oswald, Appellants, v. Larry R. LeGRAND, Barry Smith, Christopher Clark, and Mercy Health Center, Appellees.

No. 89-166.

Supreme Court of Iowa.

Feb. 21, 1990.

As Amended on Denial of

Rehearing April 12, 1990.

Tom Riley and Sara Riley Brown of the Tom Riley Law Firm, P.C., Cedar Rapids, for appellants.

David L. Hammer and Angela C. Simon of Hammer & Simon, Dubuque, for appellees Larry R. LeGrand, Barry Smith and Christopher Clark.

Alfred E. Hughes of Hughes & Trannel, Dubuque, for appellee Mercy Health Center.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.

NEUMAN, Justice.

This appeal challenges a grant of summary judgment for medical professionals in a case involving the spontaneous abortion of a 19-22 week-old fetus. The trial court barred the plaintiffs from introducing expert testimony due to their failure to timely designate an expert in accordance with Iowa Code section 668.11(2) (1987). Accordingly, the district court determined that plaintiffs could not generate a material issue of fact concerning the defendants' negligence. Because we conclude that expert testimony is crucial to some but not all of plaintiffs' claims, we affirm in part, reverse in part, and remand for further proceedings.

I. This case reaches us on appeal from pretrial summary judgment for the defendants. Our review under such circumstances is well established:

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.

Daboll v. Hoden, 222 N.W.2d 727, 731 (Iowa 1974). Because resolution of issues of negligence and proximate cause turns on the reasonableness of the acts and conduct of the parties under all the facts and circumstances, actions for malpractice "are ordinarily not susceptible of summary adjudication." Id. at 734; accord Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989); Iowa R.App.P. 14(f)(10). In a case like this one where plaintiffs are limited in the presentation of expert testimony, 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." Donovan, 445 N.W.2d at 766.

To establish a prima facie case of medical malpractice, a plaintiff must produce evidence that (1) establishes the applicable standard of care, (2) demonstrates a violation of this standard, and (3) develops a causal relationship between the violation and the injury sustained. Kosburg v. Washington Hosp. Center, Inc., 394 F.2d 947, 949 (8th Cir.1968); Daboll, 222 N.W.2d at 734. Ordinarily, evidence of the applicable standard of care--and its breach--must be furnished by an expert. Grosjean v. Spencer, 258 Iowa 685, 692, 140 N.W.2d 139, 143 (Iowa 1966). This court has recognized two exceptions to this rule One is where the physician's lack of care is so obvious as to be within the comprehension of a lay[person] and requires only common knowledge and experience to understand. The other exception is really an example of the first situation. It arises when the physician injures a part of the body not being treated.

Buckroyd v. Bunten, 237 N.W.2d 808, 811-12 (Iowa 1976); Perin v. Hayne, 210 N.W.2d 609, 613 (Iowa 1973); Grosjean, 258 Iowa at 692, 140 N.W.2d at 144. It is the "common knowledge" exception upon which plaintiffs base their argument for reversal in the present case.

II. The record upon which the trial court made its summary judgment ruling consisted of the following: affidavits by the plaintiffs, affidavits by the doctors, and affidavits by several medical professionals attesting to defendants' nonnegligence based on their review of the medical records; the medical records themselves; and selected portions of deposition testimony given by plaintiffs, doctors, and hospital nursing staff. Viewing this record in the light most favorable to plaintiffs, and resolving factual disputes in that same spirit, we accept the following facts as established for purposes of this appeal.

Plaintiffs Susan and Larry Oswald have been married for ten years and are the parents of two healthy sons. During Susan's third pregnancy, she began experiencing bleeding and painful cramping just prior to her five-month checkup. At that time, she was under the care of a family practice physician, defendant Barry Smith. He ordered an ultrasound test and Susan was then examined in his office by one of his colleagues, defendant Larry LeGrand, an obstetrician. Neither the test nor the examination revealed an explanation for the bleeding and Susan was instructed to go home and stay off her feet. Later that day, however, Susan began to bleed heavily. She was taken by ambulance to defendant Mercy Health Center. The bleeding eventually stopped, Dr. Smith's further examination failed to yield a cause of the problem, and Susan was discharged the following day with directions to take it easy.

The following day, Susan's cramping and bleeding worsened. Susan thought she was in labor and feared a miscarriage. She was unable to reach Dr. Smith by telephone and so Larry drove her to the emergency room at Mercy. There Dr. Christopher Clark, another physician in association with Smith and LeGrand, examined her. He advised her there was nothing to be done and she should go home. Larry was angered by this response and insisted Susan be admitted to the hospital. Dr. Clark honored this request and Susan was transferred to the labor and delivery ward.

In considerable pain and anxious about her pregnancy, Susan's first contact on the ward was with a nurse who said, "What are you doing here? The doctor told you to stay home and rest." Susan felt like "a real pest." A short while later, while attached to a fetal monitor, Susan was told by another nurse that if she miscarried it would not be a baby, it would be a "big blob of blood." Susan was scared.

The next morning, an argument apparently ensued over which physician was responsible for Susan's care. Standing outside Susan's room, Dr. Clark yelled, "I don't want to take that patient. She's not my patient and I am sick and tired of Dr. Smith dumping his case load on me." At the urging of Larry and a nurse, Dr. Clark apologized to Susan for this outburst. He assured her that he would care for her until he left for vacation at noon that day when he was scheduled to go "off call" and Dr. LeGrand would take over.

Around 9:00 a.m. Susan began experiencing a great deal of pain that she believed to be labor contractions. Dr. Clark prescribed Tylenol and scheduled her for an ultrasound and amniocentesis at 11:00 a.m. By that time, Susan was screaming in pain and yelling that she was in labor. Dr. Clark arrived in the x-ray department halfway through the ultrasound procedure and determined from viewing the sonogram that there was insufficient fluid in the amniotic sac to perform an amniocentesis. He told the Oswalds that the situation was unusual but did not reveal to them his suspicion that there was an infection in the uterus. He examined Susan abdominally but did not do a pelvic exam. By all accounts, Susan was hysterical and insisting she was about to deliver. Dr. Clark wanted her transferred upstairs for further monitoring. He told Larry to calm her down. Then he left on vacation, approximately one-half hour before the end of his scheduled duty.

Within minutes, Susan began delivering her baby in the hallway outside the x-ray lab. When Larry lifted the sheet covering Susan and "saw [his] daughter hanging from her belly" he kicked open a glass door to get the attention of hospital personnel. Susan was quickly wheeled to the delivery room where two nurses delivered her one-pound baby girl at 11:34 a.m.

After visually observing neither a heartbeat nor any respiratory activity, one of the nurses announced that the baby was stillborn. The nurse wrapped the infant in a towel and placed her on an instrument tray. Ten minutes later, Dr. LeGrand arrived and delivered the placenta. At Susan's request, he checked the fetus for gender. He made no further examination of the infant, assuming it to be a nonviable fetus. After assuring himself that Susan was fine, and offering his condolences to the disappointed parents, he returned to his office.

Meanwhile, Larry called relatives to advise them of the stillbirth. Upon his return to Susan's room, he touched the infant's finger. Much to his surprise, his grasp was returned. Larry told a nurse in attendance that the baby was alive but the nurse retorted that it was only a "reflex motion." The nurses subsequently determined that the baby was alive. After having left her on an instrument tray for nearly half an hour, the nurses rushed the infant to the neonatal intensive care unit. The infant, registered on her birth certificate as Natalie Sue, received comfort support measures until she died about twelve hours later. Further facts will be detailed as they become pertinent to the issues on appeal.

III. In January 1987, the Oswalds sued the hospital and doctors Clark, Smith and LeGrand on theories of negligence, negligent loss of chance of survival, breach of implied contract and breach of implied warranty. As to Dr. LeGrand and the hospital, Oswalds additionally alleged gross negligence. Factually, these causes of action were premised on violation of the standard of prenatal care owed to Susan Oswald and alleged negligence in the examination and treatment of Natalie Sue including failure to recognize signs of an imminent premature birth, failure to properly prepare for such delivery, and delaying timely and vital treatment to the infant upon her birth. The Oswalds claimed damages for Natalie Sue's lost chance to live, their loss of society and companionship flowing from Natalie Sue's death, severe...