Wilson v. Hayes

• Decision Date: 19 December 1990
• Docket Number: No. 89-252,89-252
• Citation: 464 N.W.2d 250
• Parties: Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.
• Court: Iowa Supreme Court

Page 250

464 N.W.2d 250

Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.

No. 89-252.

Supreme Court of Iowa.

Dec. 19, 1990.

David A. Hirsch of Beckman Law Offices, Burlington, for appellants.

D.G. Ribble and Wilford H. Stone of Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.

Considered en banc.

LAVORATO, Justice.

Two doctors brought suit against an attorney alleging malicious prosecution and abuse of process. The claims arose out of a medical malpractice action that the attorney brought against the doctors on behalf of his client. The client claimed that the doctors' negligence resulted in his wife's death. The underlying malpractice suit was eventually disposed of without trial, and this action followed.

After a bench trial the district court dismissed the doctors' petition. The court found that the doctors had not established either claim. We affirm.

I. Background Facts and Proceedings.

The district court made detailed findings of facts, all of which we find were supported by the evidence. These facts include the following.

A. The Principals.

Dr. Michael Wilson, an orthopedic surgeon, was in private practice in Burlington, Iowa, at the time the medical malpractice action began. He was a shareholder and an employee of Orthopedic & Reconstructive Surgery Associates, P.C. He practiced in Burlington from 1979 to 1985.

Michael graduated from the University of Iowa Medical School in 1975. After completing medical school, Michael entered a four-year orthopedic residency at Mayo Clinic. After Michael finished his residency, he relocated to Burlington where he entered private practice.

Dr. Kathleen Wilson, an internist and a gastroenterologist, was also in private practice in Burlington when the medical malpractice suit began. Kathleen was a sole practitioner. She is also a graduate of the University of Iowa Medical School. Kathleen completed a three-year residency in internal medicine at Mayo Clinic. Following the residency, Kathleen completed a two-year fellowship in gastroenterology at Mayo. She then moved to Burlington and began her private practice.

Michael and Kathleen are married and were married at the time the medical malpractice suits began. Although the Wilsons had separate practices, they did refer patients to each other.

James P. Hayes is an Iowa City attorney. Hayes represented Namen Rashid in the medical malpractice action that Namen brought against the Wilsons.

Namen is a resident of Fort Madison. Namen brought the medical malpractice action against the Wilsons as the executor of the estate of his deceased wife, Ellen. Before Namen brought the suit, he was Kathleen's patient.

Ellen Rashid had never been Kathleen's patient. But Ellen had been Michael's patient from December 1982 to January 1983.

The Rashids had two adult children, Terry and Carol. Both children consulted with Hayes and Namen about the medical malpractice suit.

B. The medical malpractice lawsuit.

On July 8, 1983, Ellen was involved in an automobile accident. She was taken from the scene of the accident to the emergency room at Fort Madison Community Hospital. At the hospital Ellen complained of pain in her right ankle as well as general body aches. Dr. James Kannenburg examined and treated Ellen in the emergency room. The emergency room medical records note that Ellen had been in an automobile accident and that she had possibly hit her head and lost consciousness.

X-rays taken of Ellen's ankle showed no evidence of a fracture, dislocation, or any pathology involving the bones of the ankle. Ellen was released from the hospital shortly after her arrival with no significant medical instructions.

Even though the hospital x-rays showed no sign of significant injury, Ellen still experienced pain and discomfort in her right ankle from July 8 to July 12. Because of this pain, Ellen tried to make an appointment with Michael on July 12. A staff member at Michael's office, however, told Ellen that she needed a referral from another doctor. Namen called Kathleen's office for a referral. Kathleen's nurse suggested that Namen take Ellen to the Burlington Medical Center emergency room for treatment.

On July 13 Namen took Ellen to the Burlington Medical Center. Emergency records at the medical center list "K. Wilson" as Ellen's family physician. These records also note that Ellen had been in a "2-car-accident 7-8-83" and was experiencing a headache together with pain in her right leg, both arms, neck, and right hand.

At the hospital Ellen was examined and treated by the emergency room physician, Dr. Gundrum. Dr. Gundrum ordered x-rays and diagnosed a contusion of the right ankle, elbow, and base of the cervical spine. Apparently no special treatment was ordered, and Ellen was released.

On the same day of this hospital visit, Ellen and Namen went to Kathleen's office. Neither Ellen nor Namen had a scheduled appointment with Kathleen that day.

Because Namen was Kathleen's patient, she agreed to see them. They went to Kathleen's office where Namen and Ellen explained Ellen's injuries. Namen and Ellen also relayed the information that both emergency room physicians had told them. The couple explained that Ellen had tried to get an appointment with Michael, but she needed a referral.

Kathleen did not have Ellen's hospital x-rays, but she could see that Ellen's ankle was swollen. Kathleen agreed to call Michael's office. Michael's office then made an appointment for Ellen that afternoon. As Namen and Ellen were leaving Kathleen's office, Namen wanted to pay for the visit. He was told there was no charge, but he insisted on paying $17. This amount was less than the charge for a normal office visit.

Michael saw Ellen the same day. He reviewed Ellen's hospital x-rays. He also took a medical history. Michael's records note that Ellen's chief complaint involved pain and swelling in her right ankle. Michael told Ellen this pain would probably subside in two to three days and suggested an ace wrap on the ankle to control the swelling. No other treatment or medications were suggested. Because Kathleen was the referring physician, Michael's office sent her a copy of his report.

On July 27 Ellen suffered a ruptured congenital cerebral aneurysm. Emergency surgery was performed at University Hospitals in Iowa City to repair the rupture. Ellen died on August 5 due to complications following surgery.

Two months after Ellen's death, Namen began discussing a possible medical malpractice lawsuit. He contacted a few local attorneys, but due to conflicts Namen was referred to Hayes.

Namen and his daughter, Carol, met with Hayes on December 20 to discuss a possible lawsuit. Hayes' notes of this first meeting indicate that since Ellen's automobile accident in July she complained of headaches and that she was getting worse. According to the notes, Ellen complained of these headaches to both Kathleen and Michael. Hayes had Namen sign patient waiver forms. Hayes subsequently requested Ellen's medical records from Michael, Kathleen, Fort Madison Community Hospital, Burlington Medical Center, University of Iowa Hospitals and Clinics, and Dr. Kannenburg.

On June 1984 Hayes met with Namen and Namen's son, Terry. At this meeting, father and son told Hayes that Ellen's head was hurting on the day of the car accident. They told Hayes that Namen had called Kathleen's office on July 12 because Ellen was experiencing terrible headaches. They said Kathleen's nurse had referred them to the hospital for x-rays. They also told Hayes that Ellen had specifically told Michael about the headaches but that Michael said there was nothing wrong with her. In his summary of the meeting, Hayes noted that the emergency room records of July 13 showed that Ellen complained of a headache.

Following this meeting Hayes wrote to Dr. Jon Brillman, a board certified neurologist in Pennsylvania. Hayes had worked with Brillman on previous medical malpractice cases. In his letter Hayes summarized the facts as related to him by Namen and his children. Hayes also sent copies of Ellen's medical records. Hayes asked Brillman to determine whether "the orthopedist failed to deliver to Ellen Rashid the expected standard of care under the circumstances." In making this determination, Brillman was asked to assume the facts as stated by the Rashids as true.

Brillman called Hayes with his opinion on August 1, 1984. Brillman based his opinion on the following assumptions: "an automobile accident, a 'black-out,' amnesia, and a primary complaint of severe headaches on the following days." It was Brillman's opinion that an orthopedist

could not be faulted for not diagnosing or suspecting the aneurysm right after the accident, but if Ellen continued to complain of headaches a physician and an orthopedist presented with such history and complaints should have referred her to a neurologist or ordered a CAT scan, and a failure to do so would constitute a failure to meet the expected standard of care.

Brillman theorized that Ellen had suffered a small rupture of the aneurysm that had caused her to black out and have the accident. Because of this rupture, Brillman thought there was early bleeding that had healed somewhat but had caused the headaches. According to Brillman there probably was a rerupture of the aneurysm on July 27 that ultimately led to Ellen's death. Brillman believed that an investigation of the headaches on July 13 could very well have prevented the rerupture of the aneurysm on July 27.

Brillman agreed to work with Hayes as an expert witness on the case.

After this call, Hayes wrote to Namen and told him what Brillman had said. Hayes then met with Namen and his children on August 15, 1984. At this meeting they decided to sue Michael and Kathleen for malpractice.

On October 31 Hayes sent Namen a copy of the proposed petition. In his letter to Namen, Hayes asked Namen to review the petition and to call him with questions, suggestions or...