Susie v. Family Health Care of Siouxland, P.L.C., No. 17-0908

• Court: United States State Supreme Court of Iowa
• Writing for the Court: CHRISTENSEN, Chief Justice.
• Parties: Sharon K. SUSIE and Larry D. Susie, Appellants, v. FAMILY HEALTH CARE OF SIOUXLAND, P.L.C. d/b/a Family Health Care of Siouxland Urgent Care and Sara Harty , Appellees.
• Docket Number: No. 17-0908
• Decision Date: 12 March 2020

942 N.W.2d 333

Sharon K. SUSIE and Larry D. Susie, Appellants,
v.
FAMILY HEALTH CARE OF SIOUXLAND, P.L.C. d/b/a Family Health Care of Siouxland Urgent Care and Sara Harty , Appellees.

No. 17-0908

Supreme Court of Iowa.

Filed March 12, 2020
Rehearing Denied May 13, 2020

Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, for appellants.

Kellen B. Bubach, Jack D. Hilmes, and Erik P. Bergeland, of Finley Law Firm, P.C., Des Moines, for appellees.

CHRISTENSEN, Chief Justice.

942 N.W.2d 335

The lead plaintiff in this case tragically lost an arm and toes due to a rare, but extremely serious, disorder known as necrotizing fasciitis. We must decide whether the district court was correct in granting defendants’ motion for summary judgment on plaintiffs’ medical malpractice claims. On direct appeal, the court of appeals reversed the district court’s judgment. Upon further review, we vacate the decision of the court of appeals and affirm the district court’s judgment. Because the plaintiffs failed to set forth specific facts showing a prima facie case of causation and lost chance of survival, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

Sharon Susie fell in her living room, injuring her right arm. Her arm was bruised and painful. The condition of her arm did not improve. Approximately one week later, on September 29, 2012, she went to the urgent care clinic of Family Health Care of Siouxland and was treated by Sara Harty, a physician’s assistant. Harty ordered an x-ray of Sharon’s arm, which revealed "no fractures or dislocations" but there was "moderate soft tissue swelling about the elbow joint dorsally." Harty diagnosed Sharon with right proximal forearm pain, elbow pain, and a right elbow contusion. A shot for pain and prescription pain killers were provided to Sharon. Harty instructed Sharon to ice her arm and told her to follow up with her doctor if she was not better in two days.

The next day, Sharon’s adult son found her extremely ill. Sharon was taken to Mercy Medical Center in Sioux City where she was diagnosed with septic shock and kidney failure. She was immediately placed on antibiotics, but her condition continued to deteriorate. The biopsy of Sharon’s right arm showed she had necrotizing fasciitis, also known as a flesh-eating disease. To stop the progression of the life-threatening disease, doctors amputated Sharon’s right arm. As a result of medication that directed blood flow to her vital organs, eight of Sharon’s toes were amputated as well.

Two years later, Sharon and her husband (Susies) filed a negligence action against Family Health Care of Siouxland and Harty (defendants), seeking damages for the amputation of her right arm and other related injuries. The Susies alleged defendants were negligent because Sharon’s condition was not properly diagnosed and treatment was not timely commenced, requiring amputation of her right arm. Later, the Susies also alleged defendants’ actions resulted in the lost chance to save Sharon’s arm and toes from amputation. The Susies originally designated Dr. John Crew as their expert witness, and he was deposed. However, Dr. Crew died prior to trial. On April 11, 2017, the Susies designated Dr. Roger Schechter to substitute for Dr. Crew and submitted a signed report summarizing Dr. Schechter’s opinions pursuant to Iowa Rule of Civil Procedure 1.508. The report stated, in part,

Dr. Schechter will also opine to a reasonable degree of medical probability regarding the treatability of Sharon Susie’s infection at the point of time she presented to the urgent care clinic on September 29, 2012. He is also expected to testify that had the infection been diagnosed on the day of her visit to the clinic, and treatment initiated immediately, the spread of the infection, more likely than not, could have been avoided, the infection would not have become systemic; and the amputation of Sharon’s arm and toes would more likely than not have been avoided.

942 N.W.2d 336

Two weeks later, on April 25, 2017, Dr. Schechter was deposed. Following Dr. Schechter’s deposition, defendants filed a motion for summary judgment, arguing the Susies lacked any evidence on causation and that Dr. Schechter could only provide speculation as to the effect of antibiotic administration. The Susies resisted the motion, stating a prima facie case on causation was made by considering all of the evidence, including Dr. Schechter’s 1.508 report, his deposition testimony, and the supporting evidence from multiple medical providers. On May 8, a hearing was held on the motion for summary judgment. The district court stated on the record as follows:

Okay. It’s clear to me even -- and I know, Mr. Humphrey, you wanted to make sure I read all of your other physician stuff. I did that. I still believe and I find that there is no -- that you don't have the necessary expert more likely than not causation evidence to get the claim to a jury.

Now, Schechter, every time he was really forced or asked the major question, he said speculation, I don't know what the outcome would have been, may have made a difference. I don't care what’s in his 1.508 because when you're asked under oath in a deposition, are these your final opinions, he’s stuck with those. And he didn't give more likely than not in his deposition.

Your plaintiff’s treating physicians basically said, listen, the earlier you get antibiotics, the better chance you have. What’s the other phrase? Time is tissue. Lamptey said it may well stop it from progressing. Rizk says, well, if you get antibiotics early, they usually work. Let’s see. Where’s the other one? Earlier the antibiotics, better likely the outcome for the patient. I think all your treaters said that.

The problem is -- with that is they did not give an opinion in this case with these facts whether or not it would have made a difference. What it does normally doesn't push you over the line.

The district court granted defendants’ motion for summary judgment. The Susies appealed. We transferred the case to the court of appeals. The court of appeals reversed the judgment of the district court, concluding the grant of summary judgment was improper. The court of appeals looked "at all of the evidence presented," and when "taken together, indicate the probability or likelihood of a causal connection between defendants’ failure to administer antibiotics on September 29, 2012, and the injury to Sharon." The defendants applied for further review, and we granted their application. We will discuss additional facts as necessary.

II. Standard of Review.

We review the grant of summary judgment for correction of errors at law. Konrardy v. Vincent Angerer Tr., Dated Mar. 27, 1998 , 925 N.W.2d 620, 623 (Iowa 2019). Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Iowa R. Civ. P. 1.981(3). The burden is on the moving party to demonstrate the nonexistence of a material fact question. Banwart v. 50th St. Sports, L.L.C. , 910 N.W.2d 540, 545 (Iowa 2018). However, the nonmoving party may not rely on mere allegations in the pleadings but must set forth specific facts showing a genuine issue for trial. Id. ; accord Iowa R. Civ. P. 1.981(5). If the nonmoving party cannot generate a prima facie case in the summary judgment

942 N.W.2d 337

record, the moving party is entitled to judgment as a matter of law. See Robinson v. Poured Walls of Iowa, Inc. , 553 N.W.2d 873, 875, 878 (Iowa 1996).

We view the facts in the light most favorable to the nonmoving party. Konrardy , 925 N.W.2d at 623. "But the proof in any case must be such that the fact finder is not left to speculate about who the negligent culprit is." Walls v. Jacob N. Printing Co. , 618 N.W.2d 282, 284 (Iowa 2000) (en banc). Thus, "[s]peculation is not sufficient to generate a genuine issue of fact." Hlubek v. Pelecky , 701 N.W.2d 93, 96 (Iowa 2005).

III. Analysis.

On further review, the defendants present two claims. First, they argue the district court correctly held there was insufficient evidence of but-for causation. Second, the defendants maintain there was insufficient evidence to support a claim of lost chance of survival.

A. But-For Causation. Defendants contend there was insufficient evidence of but-for causation. A prima facie case of medical negligence requires plaintiff to establish the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the injury. Eisenhauer ex rel. Conservatorship of T.D. v. Henry Cty. Health Ctr. , 935 N.W.2d 1, 9 (Iowa 2019). The central causation question for Susies’ claims is whether it was more likely than not that Sharon’s arm would have been saved by administration of antibiotics on September 29, 2012. Expert testimony is required to create a jury question on causation when the causal connection "is not within the knowledge and experience of an ordinary layperson." Doe v. Cent. Iowa Health Sys. , 766 N.W.2d 787, 793 (Iowa 2009). The parties agreed expert testimony was necessary to establish causation in this case.

Defendants point out Dr. Schechter’s testimony failed to establish the causation element of Susies’ prima facie case. We agree with this assertion. Dr. Schechter’s testimony does not rise above the level of speculation. To begin, it is unclear whether Dr. Schechter is qualified to render a causation opinion. He testified he is not an expert in the treatment of necrotizing fasciitis and he is not a surgeon nor an infectious disease specialist. Regardless, Dr. Schechter was unable to provide the causal link between defendants’ alleged violation of the standard of care and Sharon’s injuries:

Q. Or are you here to say that Sharon Susie’s arm was cut off because of Sara Harty? A. I'm

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