Tappe By and Through Tappe v. Iowa Methodist Medical Center

• Decision Date: 20 November 1991
• Docket Number: No. 89-1473,89-1473
• Citation: 477 N.W.2d 396
• Parties: Vera G. TAPPE, By and Through her Husband and Duly Appointed Guardian and Conservator, Albert M. TAPPE, et al., Appellants, v. IOWA METHODIST MEDICAL CENTER, Hooshang Soltanzadeh, David K. Lemon, Ronald K. Grooters and John Vandehaar, Appellees.
• Court: Iowa Supreme Court

Page 396

477 N.W.2d 396

Vera G. TAPPE, By and Through her Husband and Duly Appointed Guardian and Conservator, Albert M. TAPPE, et al., Appellants, v. IOWA METHODIST MEDICAL CENTER, Hooshang Soltanzadeh, David K. Lemon, Ronald K. Grooters and John Vandehaar, Appellees.

No. 89-1473.

Supreme Court of Iowa.

Nov. 20, 1991.

Marc A. Humphrey of Humphrey & Haas, P.C., Des Moines, for appellants.

Thomas A. Finley and Glenn Goodwin of Duncan, Jones, Riley & Finley, P.C., Des Moines, for appellees Iowa Methodist Medical Center and David K. Lemon.

Robin L. Hermann and Douglas A. Haag of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, Des Moines, for appellee John Vandehaar.

Michael H. Figenshaw and David J. Lynch of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellees Ronald K. Grooters and Hooshang Soltanzadeh.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, NEUMAN, and ANDREASEN, JJ.

NEUMAN, Justice.

Vera Tappe suffered a paralyzing stroke while undergoing cardiac bypass surgery. In his capacity as her guardian, Vera's husband Albert ¹ brought this suit against the cardiologist, defendant David K. Lemon; the surgeons, defendants Ronald K. Grooters and Hooshang Soltanzadeh; the perfusionist, ² defendant John Vandehaar; the hospital, defendant Iowa Methodist Medical Center; and the manufacturer of the perfusion equipment, Shiley, Inc. ³ Plaintiff pleaded both specific acts of negligence and the doctrine of res ipsa loquitur to sustain his claim of medical malpractice against the doctors and perfusionist. His claim against the hospital rested solely on the res ipsa theory. He also made an independent claim of damages against Dr. Lemon for intentional infliction of emotional distress.

Following a two-week trial, the court directed a verdict for the hospital on the negligence count, and for Dr. Lemon on the emotional distress claim. The jury then returned a verdict for the remaining defendants. Plaintiff's motion for new trial was denied.

On appeal, plaintiff urges us to reverse on the ground the district court refused to submit his case against the hospital and medical personnel on the theory of res ipsa loquitur. Plaintiff also contends the court erred by refusing to allow the testimony of a handwriting expert, limiting the opinions offered by an expert perfusionist, failing to give a "captain of the ship" instruction, inadequately instructing on informed consent, and granting a directed verdict in favor of the cardiologist on Albert's claim of intentional infliction of emotional distress. Finding no error, we affirm.

Our scope of review is for the correction of errors at law. Iowa R.App.P. 4. Further facts will be detailed as they become pertinent to the specific issues raised on appeal.

I. Res Ipsa Loquitur.

In May 1984 Vera Tappe sought advice from her family doctor concerning recurring chest pains. She was referred to Dr. Lemon, a cardiologist, who performed a cardiac catheterization. The test revealed blockage of several arteries surrounding Vera's heart. The doctor recommended immediate treatment, either by way of angioplasty or bypass surgery. Vera chose surgery. Her decision rested in part on the fact that her husband, Albert, had undergone bypass surgery only two years earlier with good results. The same surgeon, Dr. Grooters, would perform the surgery along with Dr. Soltanzadeh.

Assisting these physicians in the surgery was John Vandehaar, the perfusionist. The surgery proceeded normally and without apparent complications. Following the operation, however, Vera failed to regain consciousness. She lapsed into a coma and a CT scan performed two days later revealed extensive brain damage suffered during surgery.

At trial, every physician called to testify acknowledged that stroke is a recognized risk of cardiac bypass surgery. All agreed that it occurs in a small percentage of patients even when all due care has been exercised by the surgeon. In fact, stroke was one of the specific risks explained to Vera before she consented to surgery. Thus the fighting issue was whether Vera's stroke was of the type commonly caused by the release of atherosclerotic emboli (i.e., bits and pieces of plaque) dislodged during surgery, or whether the stroke resulted from negligence in the operation and monitoring of the perfusion equipment.

Vera's CT scan revealed diffuse, rather than localized, changes in her brain tissue following surgery. Defendants and their experts all identified this pattern as consistent with the release of atherosclerotic emboli from Vera's aortic arch. Plaintiff's expert radiologist took a contrary view, claiming the pattern was inconsistent with stroke caused by plaque. He offered the opinion that the stroke was caused by the release of excess gaseous microemboli which diminished the flow of blood, and thereby oxygen, to the brain mass. Plaintiff supported this hypothesis with other expert evidence suggesting negligence in the use of one type of oxygenator over another, failure to use an arterial line filter, and the perfusionist's failure to carefully monitor and record the partial oxygen (PO sub2 ) level in Vera's blood.

Against this factual background we consider plaintiff's challenge to the court's refusal to let plaintiff establish his prima facie case of negligence against the hospital and the medical professionals through reliance on the doctrine of res ipsa loquitur. This was the only basis upon which plaintiff sought to prove the hospital's negligence. As against the other defendants, plaintiff's claims of specific negligence were submitted to, but apparently rejected by, the jury.

Plaintiff cites no legal cause to upset the jury's verdict. He merely claims the doctrine of res ipsa should have been available to him, under the record sketched above, to create a rebuttable inference of negligence on the part of the defendants. For the reasons that follow, we think the district court wisely rejected plaintiff's argument under the facts of this case.

It is well settled that before a plaintiff will be entitled to a res ipsa instruction, the court must decide whether plaintiff has established two foundational facts: (1) the defendant had exclusive control and management of the instrumentality that caused plaintiff's injury, and (2) the injury was of such a type as in the ordinary course of events would not have happened if reasonable care had been used. Cronin v. Hagan, 221 N.W.2d 748, 751 (Iowa 1974). If both elements are established, "the happening of the injury itself permits but does not compel the drawing of an inference that defendant was in fact negligent." Id. at 751.

Because the doctrine creates an inference of negligence without specific proof, it traditionally has been applied sparingly, particularly in medical malpractice cases. Mogensen v. Hicks, 253 Iowa 139, 143, 110 N.W.2d 563, 565 (1961); Lagerpusch v Lindley, 253 Iowa 1033, 1038, 115 N.W.2d 207, 210 (1962). We have observed that while physicians control their surgical instruments and medicine, they do not control the physical condition and reactions of their patients. Mogensen, 253 Iowa at 143, 110 N.W.2d at 565.

The issue of control, however, is really not at the center of the controversy before us. The district court was satisfied with proof that Vera had relinquished control of her care to the defendants when her injury occurred. It was plaintiff's failure to satisfy the second foundational element that led to the directed verdicts. Because we agree with the court's ultimate conclusion about the second prong of the test, we pass defendants' protest that the first element was not proven either.

We turn, then, to the question posed by the second foundational element: Would this injury have occurred, in the ordinary course of events, in the absence of reasonable care? If the answer under the record is "yes," then the doctrine is not applicable. Cronin, 221 N.W.2d at 751. Here the court weighed the evidence and concluded that because all the experts testified that stroke is an inherent risk of bypass surgery, the plaintiff was not entitled to the benefit of the res ipsa inference of negligence. Plaintiff contests this decision on appeal.

The thrust of plaintiff's argument is that the jury should have been allowed to accept or reject the res ipsa inference, and it was error for the court to decide the question as a matter of law. Plaintiff's argument points out a possible source of confusion in our prior cases. On the one hand, it has long been held that:

[i]n cases where the plaintiff relies upon res ipsa loquitur the Court must first decide under the well-established rules having to do with the respective provinces of the Court and the jury, whether there is such evidence as to the existence of the foundation facts as to warrant submission of the case to the jury upon the theory of res ipsa loquitur.

Highland Golf Club v. Sinclair Refining Co., 59 F.Supp. 911, 915 (N.D.Iowa 1945); Sammons v. Smith, 353 N.W.2d 380, 385 (Iowa 1984); see Wiles v. Myerly, 210 N.W.2d 619, 624 (Iowa 1973) (before doctrine can be invoked plaintiff must prove existence of essential facts necessary to bring the rule into operation); Cronin, 221 N.W.2d at 751 (same).

In Sammons, however, we also said the decision need not be made as a matter of law. Sammons, 353 N.W.2d at 387. That means when the evidence of causation is either unavailable to the plaintiff or in conflict, but there is proof that the injury would not ordinarily occur but for negligence, the court may properly instruct the jury that it may, but is not required to, infer negligence from the happening of an event that is within the exclusive control of the defendant. Id.

But in the present case, the threshold question of what caused Vera's injury is not in conflict. Vera suffered a stroke. Moreover, all the experts conceded that stroke occurs in a fixed percentage of all bypass surgeries even in the absence of negligence. Given this...