Wendland v. Sparks

• Decision Date: 18 February 1998
• Docket Number: No. 96-1576,96-1576
• Citation: 574 N.W.2d 327
• Parties: Lawrence WENDLAND, Individually and as Personal Representative of the Estate of Callie Rose Wendland, Appellant, v. Stephen SPARKS and Davis County Hospital, Appellees.
• Court: Iowa Supreme Court

Page 327

574 N.W.2d 327

Lawrence WENDLAND, Individually and as Personal Representative of the Estate of Callie Rose Wendland, Appellant, v. Stephen SPARKS and Davis County Hospital, Appellees.

No. 96-1576.

Supreme Court of Iowa.

Feb. 18, 1998.

Thomas P. Slater, Des Moines, for appellant.

Steven K. Scharnberg and Glenn Goodwin of Finley, Alt, Smith, Scharnberg, May & Craig, P.C., Des Moines, for appellee Stephen Sparks.

Marion H. Pothoven and Julie B. Fisher of Pothoven, Blomgren & Stravers, Oskaloosa, for appellee Davis County Hospital.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and SNELL, JJ.

LARSON, Justice.

Callie Rose Wendland, who was suffering from several diseases, including multiple myeloma, died at the Davis County Hospital. Her estate and her husband sued the hospital and one of her treating doctors, Stephen Sparks, for failing to administer cardiopulmonary resuscitation (CPR) following her respiratory arrest in the hospital. The court granted summary judgment against the plaintiff on the ground that he could not establish that the failure to administer CPR was the proximate cause of Callie's death. Because this summary judgment deprived the plaintiff of a claim for lost chance of survival, we reverse and remand for further proceedings.

I. The Facts.

The summary judgment record, which we view in the light most favorable to the plaintiff, reveals the following facts: Callie Wendland had been hospitalized at various times in the two months preceding her admission to this hospital on January 31, 1994. She had been suffering from several diseases, including fibrotic lung disease and multiple myeloma (cancer of the plasma cells). The multiple myeloma was apparently in remission at the time she was admitted to the hospital; she was admitted primarily to regain her strength. According to a plaintiff's expert, Callie "seemed to be doing reasonably well and be fairly healthy in the context of a woman who obviously had a chronic illness and symptoms that were unexplained."

At approximately 4:40 a.m. on February 24, 1994, Callie suffered cardiorespiratory arrest. A nurse obtained a "crash" cart, which was equipped to perform electrocardiogenic shock. Another nurse contacted the defendant, Dr. Sparks. Dr. Sparks arrived at Callie's room approximately at the time she was drawing her last breath. He assessed the patient by feeling for a pulse, listening for heartbeats, looking for a respiratory effort, and checking her eyes. The doctor decided not to attempt CPR, and the crash cart was never used, although there was evidence in the summary judgment record that resuscitative efforts might have been successful.

One nurse testified in her deposition that Dr. Sparks said, "I just can't do it to her," and he told the nurses not to attempt to resuscitate her. Dr. Sparks testified that he did not believe he made the statement, "I just can't do it to her," but he agreed that he had told the nurses that "no code would be made," meaning that there should be no further attempts to resuscitate the patient. This nurse testified that, if Dr. Sparks had not intervened, the nurses would have "called a code" and performed CPR. Dr. Sparks testified that he would have expected them to perform CPR if he had not been there.

Ordinarily, a patient, or a family member who does not wish to have the patient resuscitated, signs a "no code" request, which is placed in the patient's records. In this case, neither Callie nor a family member had made such a request. In fact, Dr. Sparks testified in his deposition that he was "very aware of [the patient's husband's] desire to see her on a ventilator, again, if she needed it." The doctor testified that, when Callie had previously suffered respiratory arrest, she had been resuscitated. The number of previous resuscitations was not clear, but Dr. Sparks thought that it was three.

II. The Suit.

Callie's husband, Lawrence Wendland, as husband and personal representative of Callie's estate (collectively the plaintiff), sued the hospital and Dr. Sparks for "failing to promptly initiate appropriate care to treat decedent's arrest." The defendants moved for summary judgment on the ground that the plaintiff was not able to generate a fact issue on proximate cause because he could not produce any substantial evidence that the patient's death was the probable result of the defendants' negligence.

The plaintiff resisted the motion for summary judgment and in a brief in support of his resistance asserted, for the first time, that the defendants' negligence deprived the patient of a chance to survive, a basis for recovery that he claims does not require the "more probable than not" showing of proximate cause.

III. The Issue.

One of the nurses who had attended the patient at the time of death testified in her deposition that the doctor's order to stop any resuscitation effort was "an act of mercy." We agree that this might well be so because another successful resuscitation was not a certainty; and even if Callie had been revived, her prospects for a quality life were not good. These considerations, however, are not before us. The defendants have not challenged the ability of the plaintiff to show negligence or damages. The sole issue is whether proof of "probable" causation is required in a loss-of-chance case. Subsumed in that issue are the threshold questions of whether we will recognize a loss-of-chance claim under these facts and whether the plaintiff has sufficiently raised the issue.

A. Sufficiency of the pleading. The plaintiff's petition alleged that:

6. Defendants were negligent in failing to promptly initiate appropriate care to treat decedent's arrest [and]

7. Defendants' negligence was a proximate cause of decedent's subsequent injury and ultimate death.

The plaintiff did not specifically allege a loss-of-chance theory, nor was he required to do so. The notice-pleading rule in effect then required only "a short and plain statement of the claim showing that the pleader is entitled to relief." Iowa R. Civ. P. 69(a) (This rule is now found, in substantially the same form, in rule 70(a), effective January 24, 1998.). Under this rule,

the pleader is not required to identify specific theories of recovery; the petition need only apprise the opposing parties of the incident giving rise to the claim and of the general nature of the action. This does not mean that a party may not be limited to a specific theory of recovery when he limits his pleading or his presentation to the court to certain exclusive theories.

Pendergast v. Davenport, 375 N.W.2d 684, 689 (Iowa 1985) (citations omitted).

In this case, the plaintiff made it clear, at least as early as his resistance to the summary judgment, that he was relying on a theory of lost chance of survival. His resistance brief stated, in part:

Dr. Podell's testimony contained within his deposition and letter dated January 4, 1996 ... clearly states that Callie was deprived of the "opportunity" to have been resuscitated. This element of damage has been recognized by the Iowa Supreme Court in medical malpractice actions as the loss of opportunity to survive. It is well recognized in Iowa. Sanders v. Ghrist, 421 N.W.2d 520 (Iowa 1988); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986). It is clear that a fact question concerning the proximate cause of this element of damage has been generated in this case.

In granting summary judgment against the plaintiff, the district court did not address his lost-chance issue. Because the court granted summary judgment on the whole case, Iowa Rule of Civil Procedure 237(c) allowed the plaintiff to file a motion to enlarge under rule 179(b), and he did so here. In his rule 179(b) motion, he again urged the court to consider his claim for lost chance, stating that there was medical evidence in the record establishing that Callie

would have had a ten per cent (10%) chance of leaving the hospital [and these facts] are sufficient to generate a fact question that by not attempting resuscitative efforts, Dr. Sparks deprived Callie Wendland of the opportunity or chance to survive.

In their resistance to the plaintiff's rule 179(b) motion, the defendants acknowledged that the loss-of-chance argument was in the case, but they argued that such a theory is limited to medical malpractice based on failure to diagnose and that this case does not fall in that category. (We address this question later in this opinion.) We conclude that the plaintiff adequately raised the lost-chance theory.

B. Principles of review. We review an order granting summary judgment for errors of law. In re Estate of Renwanz, 561 N.W.2d 43, 44 (Iowa 1997); Iowa R.App. P. 4. As we explained in Huber v. Hovey, 501 N.W.2d 53 (Iowa 1993):

When reviewing a grant of summary judgment we ask whether the moving party has demonstrated the absence of any genuine issue of material fact and is entitled to judgment as a matter of law. The resisting party must set forth specific facts showing that a genuine factual issue exists. Summary judgment is proper if the only issue is the legal consequences flowing from undisputed facts.

Huber, 501 N.W.2d at 55 (citations omitted).

The burden of proof is on the party moving for summary judgment to show that no genuine issue of material fact exists, and the court must view the evidence in the light most favorable to the opposing party. Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990).

IV. The Lost-Chance Theory.

A. In general. The lost-chance theory has often been urged in cases against intervening tortfeasors in which the plaintiff cannot meet the traditional requirements for showing proximate cause by the "probable" standard required by cases such as Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 383, 101 N.W.2d 167, 172 (1960) ("[M]edical testimony [that] it is possible [that] a given injury was the cause of subsequent disability or 'could have' caused it is insufficient.... Testimony...