Welte v. Bello, 90-1723

• Decision Date: 18 March 1992
• Docket Number: No. 90-1723,90-1723
• Citation: 482 N.W.2d 437
• Parties: Sharalan J. WELTE and Ronald Welte, Appellants, v. George BELLO, Appellee. Sharalan J. WELTE and Ronald Welte, Appellants, v. MERCY HOSPITAL, A Corporation, Appellee.
• Court: Iowa Supreme Court

Page 437

482 N.W.2d 437

Sharalan J. WELTE and Ronald Welte, Appellants, v. George BELLO, Appellee.

Sharalan J. WELTE and Ronald Welte, Appellants, v. MERCY HOSPITAL, A Corporation, Appellee.

No. 90-1723.

Supreme Court of Iowa.

March 18, 1992.

John J. Carlin of Carlin, Hellstrom & Bittner, Davenport, for appellants.

Robert V.P. Waterman, Jr. of Lane & Waterman, Davenport, for appellee Dr. Bello.

Ralph H. Heninger and Ralph W. Heninger of Heninger & Heninger, Davenport, for appellee Mercy Hosp.

Considered en banc.

ANDREASEN, Justice.

A medical patient who was admitted to a hospital for surgery on her nose was unintentionally burned on the arm when an anesthetic, that was to be injected into her vein, infiltrated the surrounding tissue. The patient and her husband brought malpractice actions against the anesthesiologist and the hospital. The claims alleged negligence in the administration of the anesthetic and a failure to secure informed consent of the patient. The claimants urged the doctrine of res ipsa loquitur supported submission of their general negligence claim.

Prior to trial, the district court granted partial summary judgment to the anesthesiologist upon the general negligence claim. Appeal is taken from the summary judgment and the judgments entered by the district court upon jury verdicts for the anesthesiologist and the hospital.

I. Background.

On April 26, 1986, Sharalan J. Welte was admitted to Mercy Hospital (Mercy) for surgery for the correction of a deviated septum. Approximately three hours before surgery, Welte conferred with her surgeon about the procedure. She then conferred with Dr. George Bello who informed her that he would be the anesthesiologist. He told her that he would be administering sodium pentothal through an IV inserted into a vein in her arm. He told her about the potential risks associated with general anesthesia, including sore throat, bronchial spasms, cardiac irregularities and, in rare cases, death. Welte read and signed a written "consent to operate, administration of anesthetics, and rendering other medical services, Mercy Hospital, Davenport, Iowa." The consent form provided "I consent to the administration of anesthesia to be applied by or under the direction and control of Dr. Bello." Also on the form was the statement that "anesthesia and its complications have been explained and accepted." The consent form was signed by both Welte and Dr. Bello.

After talking with the doctors, Welte was transferred to a pre-operation room. While in this room, nurse Delores Testroet inserted a catheter into the vein of Welte's right arm. To place a catheter in the vein, the nurse used a one unit needle and catheter. Welte complained of pain after the IV had been inserted. The nurse checked the IV and concluded that it was properly positioned inside the vein. Welte was then transferred from the pre-operation room to the operating room. Dr. Bello and two nurses in the operating room testified they performed tests to determine that the IV was properly positioned. Using a syringe with a plunger, Dr. Bello began injecting drugs through a port in the IV. Dr. Bello testified that after he had used the syringe to push a test dose of sodium pentothal into the vein without any problem or resistance, he then pushed two additional doses of sodium pentothal into the vein. At that time, Welte should have been unconscious but she was not. Dr. Bello then rechecked the site of the IV and, for the first time, noticed swelling on her arm near the point at which the IV had been inserted. He then ordered a nurse to start a second IV in her left arm; Welte soon became unconscious. The initial IV was disconnected and Dr. Bello treated Welte's arm. As a consequence of the sodium pentothal infiltration of the tissues surrounding the vein, Welte sustained first-, second-, and third-degree burns resulting in a large permanent scar.

Sharalan and her husband Ronald (who asserted a loss of consortium claim) (together Welte) commenced two separate malpractice actions; one against Mercy and a second against Dr. Bello. The separate suits were consolidated for trial. Prior to trial, Dr. Bello filed a motion for summary judgment claiming Welte had failed to retain a qualified expert to testify against him and, therefore, they would be precluded from offering any expert testimony at trial. Iowa Code § 668.11 (1987) (failure to designate an expert within 180 days of defendant's answer precludes the expert from testifying at trial). Mercy also filed a motion for summary judgment.

Welte, in response to Dr. Bello's motion, argued that the tort claim of failure to obtain an informed consent did not require expert testimony, and that the general negligence claim would be preserved for trial by the doctrine of res ipsa loquitur.

The district court concluded that any alleged negligence of Dr. Bello was not so obvious as to be within the comprehension of a layperson and that the facts as disclosed in the record did not support a finding that the injury was to a part of the body not involved in treatment. Accordingly, since Welte did not retain a qualified expert to testify against Dr. Bello, the court dismissed the general negligence claim, preserving only the claim for failure to obtain informed consent.

The court denied Mercy Hospital's motion for summary judgment because Welte had offered the deposition testimony of an expert witness, nurse Nancy Copen, upon the negligence claim. In Copen's opinion, a nurse can be certain that an IV is properly inserted into the vein. A nurse can also determine if a needle had entered and exited a vein. The court felt this was sufficient evidence to generate a fact issue on whether the hospital nurses were negligent in the administration of Welte's anesthesia.

The district court submitted the issues of specific and general negligence against Mercy to the jury. The instructions on general negligence were based upon the doctrine of res ipsa loquitur. As to Dr. Bello, the court submitted only the issue of negligence based upon a failure to secure informed consent. The jury found for Mercy on all issues. As to Dr. Bello, the jury found that although he was negligent in not informing the patient of the potential for burns from sodium pentothal, his negligence was not a proximate cause of Welte's injuries. Accordingly, a verdict was returned in his favor. Welte appeals from these judgments.

II. Res Ipsa Loquitur.

Negligence means a failure to use ordinary care. Schalk v. Smith, 224 Iowa 904, 907-08, 277 N.W. 303, 305 (1938). As a general rule, a party claiming negligence must identify specifically the acts or omissions constituting negligence. Rinkleff v. Knox, 375 N.W.2d 262, 266 (Iowa 1985). The purpose of requiring specification of negligence is to limit the determination of the factual questions arising in a negligence claim to only those acts or omissions upon which a particular claim is in fact based. Id. When the ordinary care of a physician is an issue, generally only experts in the profession can testify and establish the standard of care and the skill required. Perin v. Hayne, 210 N.W.2d 609, 613 (Iowa 1973). If the standard of care of a physician, surgeon, or dentist is at issue, Iowa law permits only testimony upon the appropriate standard of care by an expert who has qualifications related directly to the medical problem at issue and the type of treatment administered. Iowa Code § 147.139.

The doctrine of res ipsa loquitur is an exception to the general rule. It is now well established that the doctrine may be applied in medical and dental malpractice suits in Iowa. Reilly v. Straub, 282 N.W.2d 688, 693 (Iowa 1979). Our general rules relating to the doctrine are found in our prior decisions. Id. The basic rules were summarized in Sammons v. Smith, 353 N.W.2d 380, 385-87 (Iowa 1984), where we stated:

Res ipsa loquitur is a rule of evidence which, when applied, permits but does not compel an inference that defendant was negligent. Under the doctrine the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that (1) the injury is caused by an agency or instrumentality under the exclusive control and management of the defendant and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.

The submission of res ipsa is a matter for the court, and when res ipsa is submitted in a medical malpractice case, the plaintiff is relieved of the burden of showing that specific acts of defendant were below accepted medical standards. The plaintiff still must prove negligence, but he or she does so by convincing the jury the injury would not have occurred absent some unspecified but impliedly negligent act.

Contrary to plaintiff's contention, the court does not find these elements as a matter of law in the process of deciding whether to instruct on the matter of res ipsa loquitur theory, but only concludes there is sufficient competent evidence of the existence of the foundational facts to generate a jury question. From this it follows that defendants may introduce competent evidence tending to disprove either or both foundational elements.

(Citations omitted.) The requirement that the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used formerly relied on the common experience of laypersons; now this common experience may include the common experience of experts. Reilly, 282 N.W.2d at 694. With these basic rules in mind, we review Welte's claim of general negligence against Dr. Bello and Mercy.

III. General Negligence--Dr. Bello.

The district court granted partial summary judgment to Dr. Bello prior to trial upon the general negligence claim. If there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law, the court should grant summary judgment. Iowa...