CAROL TRIPP and LANNY TRIPP, Petitioners-Appellants, vs. CEDAR VALLEY MEDICAL SPECIALISTS, P.C., Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-425 / 05-1123
Filed September 7, 2006
CAROL TRIPP and LANNY TRIPP,
Petitioners-Appellants,
vs.
CEDAR VALLEY MEDICAL SPECIALISTS, P.C.,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Plaintiffs appeal following a verdict and judgment entry in favor of
defendant, asserting instructional error by the district court. AFFIRMED.
Timothy Semelroth of Riccolo & Semelroth, Cedar Rapids, for appellants.
Timothy Boller of Gallagher, Langlas & Gallagher, P.C., Waterloo, for
appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
2
MILLER, J.
Plaintiffs Carol and Lanny Tripp appeal following a jury verdict and district
court judgment entry in favor of defendant Cedar Valley Medical Specialists, P.C.
(Cedar Valley). The Tripps assert the district court erred when it submitted two
instructions to the jury over their objections. We affirm.
I. Background Facts and Proceedings.
On August 9, 2000, Carol Tripp fractured and displaced bones in her left
wrist. After examining x-rays of Tripp’s wrist, Dr. Jitu D. Kothari, an employee of
Cedar Valley, performed a procedure known as a closed reduction.
In this
procedure, the physician manipulates the fractures back into alignment without
an incision.
Dr. Kothari then applied a sugar tong splint which immobilized
Tripp’s wrist at an approximately forty-five degree angle. He informed Tripp that,
if her wrist did not stay in place, the alternate treatment of surgery would be
necessary.
He prescribed pain medication and directed Tripp to move her
fingers as much as possible.
Tripp remained under Dr. Kothari’s care through August 29, 2000. During
this time Dr. Kothari ordered and reviewed additional x-rays of Tripp’s wrist.
Although he twice changed Tripp’s cast, he continued to immobilize Tripp’s wrist
in the same flexed position. While under Dr. Kothari’s care Tripp complained that
the pain in her wrist was increasing, and that her fingers were swelling and she
was unable to move them. Dr. Kothari prescribed pain killers and recommended
that Tripp continue to try to move her fingers.
Tripp decided to transfer her care from Dr. Kothari to another Cedar Valley
employee, Dr. Thomas Gorsche. She was first seen by Dr. Gorsche for care of
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her wrist on September 6, 2000. 1 Dr. Gorsche reviewed Tripp’s prior x-rays and
decided to continue Tripp’s current treatment. On a September 18 follow-up visit,
Dr. Gorsche removed Tripp’s cast, ordered and reviewed x-rays, and referred
Tripp to physical therapy.
When Tripp returned to see Dr. Gorsche on
September 25, he directed Tripp to continue with physical therapy and schedule
a visit in two weeks.
Tripp did not return to Dr. Gorsche, but sought care and treatment from a
number of other physicians.
She was eventually diagnosed with complex
regional pain syndrome with significant flexion contracture of the left hand and
stiffness of all fingers, post-traumatic degenerative arthritis, and carpal tunnel
syndrome. She underwent numerous pain treatments, as well as carpal tunnel
release surgery.
She has lost partial use of her left arm, and has sought
treatment for depression and anxiety.
In August 2002 Tripp and her husband Lanny filed suit against Cedar
Valley, asserting Dr. Kothari, in his role as an employee or agent of Cedar Valley,
was negligent in his care and treatment of Tripp. The petition sought damages
for Tripp’s alleged injuries and Lanny’s alleged loss of spousal consortium. 2
The matter proceeded to trial in June 2005.
Following the close of
evidence the jury was instructed that Cedar Valley was liable for the negligent
acts of its employees, and that Dr. Kothari and Dr. Gorsche were employees of
1
Dr. Gorsche examined Tripp on August 28 for a back injury. He did not treat Tripp’s
wrist injury, but did note that Tripp’s wrist was cast in a flexed position.
2
The petition also contained a loss of parental consortium claim made on behalf of
Tripp’s children, and asserted the negligence and consortium claims against both Dr.
Kothari individually and Cedar Valley as Dr. Kothari’s employer.
Dr. Kothari
subsequently died, and his estate was substituted as defendant. Prior to trial the
plaintiffs voluntarily dismissed without prejudice the loss of parental consortium claim
and all claims against Dr. Kothari’s estate.
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Cedar Valley at the time they provided medical treatment to Tripp. The jury was
further instructed to ascertain whether Cedar Valley “was negligent in failing to
meet the standard of care in at least one of the following ways”:
a. To appropriately cast Carol Tripp; or
b. Allowing Carol Tripp to be cast at 45 degrees flexion for too
long; or
c. Failing to appropriately recognize and treat instability in Carol
Tripp’s wrist; or
d. Failing to recognize x-ray evidence of misaligned bones; or
e. Failing to appropriately respond to x-ray evidence of misaligned
bones.
The jury also received a result-of-treatment and an alternate-methods-oftreatment instruction over the Tripps’ objections.
The jury returned a verdict that found no employee of Cedar Valley was
negligent. The district court accordingly entered a verdict in Cedar Valley’s favor.
The Tripps appeal. They contend the court erred in submitting the result-oftreatment and alternate-methods-of-treatment instructions to the jury.
II. Scope and Standards of Review.
We review the court's decision to give the challenged jury instructions for
correction of errors of law.
Anderson v. Webster City Cmty. Sch. Dist., 620
N.W.2d 263, 265 (Iowa 2000). However, error in giving an instruction will not
warrant reversal unless the objecting party has been prejudiced. Kurth v. Iowa
Dep't of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Prejudicial error occurs when an
instruction materially misstates the law, confuses or misleads the jury, or is
unduly emphasized. Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d
263, 268 (Iowa 2000).
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III. Result-of-Treatment Instruction.
Instruction No. 18 informed the jury, “The mere fact that full recovery does
not result or that medical treatment is not entirely successful does not mean that
the defendant was negligent or at fault.” The instruction is consistent with the
proposition that, except in cases involving res ipsa loquitur, “[i]t is evident, and it
has often been held in this state, that the mere unsuccessful result of a treatment
by a physician cannot, of itself, produce a liability on the part of the practitioner.”
Gebhardt v. McQuillen, 230 Iowa 181, 185, 297 N.W. 301, 303 (1941). 3
Instruction No. 18 is also a modified version of Iowa Civil Jury Instruction
700.8, which states: “The mere fact an accident occurred or a party was injured
does not mean a party was [negligent] [at fault].” It is well settled that, again with
the exception of res ipsa loquitur claims, this uniform instruction is a correct
statement of the law. See Novak Heating & Air Conditioning v. Carrier Corp.,
622 N.W.2d 495, 497 (Iowa 2001); Fanelli v. Illinois Cent. R. Co., 246 Iowa 661,
664, 69 N.W.2d 13, 15 (1955). It is also well established that “[t]rial courts have
discretion to modify or rephrase the uniform jury instructions to meet the precise
demands of each case as long as the instructions fully and fairly embody the
issues and applicable law.” Sumpter v. City of Moulton, 519 N.W.2d 427, 434
(Iowa Ct. App. 1994).
3
We note our agreement with a number of jurisdictions that have routinely held an
inference of ordinary or specific negligence does not flow from unsuccessful treatment
alone. See e.g., Boone v. William W. Backus Hosp., 864 A.2d 1, 19 (Conn. 2005);
Kenyon v. Miller, 756 So.2d 133, 136 (Fla. Dist. Ct. App. 2000); Narducci v. Tedrow,
736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000); Cunningham v. Riverside Health Sys., Inc.,
99 P.3d 133, 138 (Kan. Ct. App. 2004); Galloway v. Baton Rouge Gen. Hosp., 602
So.2d 1003 (La.1992); Wlosinski v. Cohn, 713 N.W.2d 16, 21 (Mich. Ct. App. 2005);
Kilpatrick v. Mississippi Baptist Med. Ctr., 461 So.2d 765, 768 (Miss. 1984); SeippelCress v. Lackamp, 23 S.W.3d 660, 667 (Mo. Ct. App. 2000).
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Upon a review of the record, we cannot conclude the district court erred in
submitting Instruction No. 18 to the jury. The plaintiffs alleged the negligence of
Drs. Kothari and Gorsche in recognizing and treating Tripp’s wrist fracture
proximately caused the pain and impairment she experienced after terminating
her care at Cedar Valley. Because this matter does not involve res ipsa loquitur,
the plaintiffs were required to present specific proof of Cedar Valley’s negligence.
See Welte v. Bello, 482 N.W.2d 437, 439-40 (Iowa 1992). They attempted to do
so through expert testimony that, if Tripp’s wrist fracture had been properly
treated, she would have had a greater range of motion, been relatively pain free,
had an “extremely slim” chance of experiencing carpal tunnel syndrome, and
experienced a lesser degree of traumatic arthritis.
Cedar Valley, in turn,
presented evidence that even with proper treatment a fracture such as Tripp’s
could cause ongoing problems, including complex regional pain syndrome and
carpal tunnel syndrome.
In light of the foregoing, the record substantially supported a jury
instruction stating the mere fact Tripp did not fully recover from her wrist fracture,
or that Drs. Korthari and Gorsche’s treatments were not entirely successful, did
not mean that Cedar Valley was negligent or at fault for Tripp’s subsequent pain
and impairment. See Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa 1994)
(“[C]ourts must give requested jury instructions when they correctly state the law
applicable to the facts of the case and if the legal concept is not embodied in
other instructions.”). “However, even instructions correctly stating the law should
not give undue emphasis to any particular theory, defense, stipulation, burden of
proof, or piece of evidence.” Id. The plaintiffs assert that such is the case here.
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The plaintiffs first contend Instruction No. 18 unduly emphasized the
defense theory that Tripp’s pain and disability was not proximately caused by
Drs. Kothari and Gorsche’s treatment of her wrist fracture.
They assert the
instruction emphasized Cedar Valley’s evidence that, even with proper treatment,
Tripp’s subsequent pain and impairment were potential consequences of her
initial injury, while deemphasizing the plaintiffs’ evidence that if Tripp’s wrist
fracture had been properly treated she would have had a greater range of
motion, been relatively pain free, had an “extremely slim” chance of experiencing
carpal tunnel syndrome, and experienced a lesser degree of traumatic arthritis.
We cannot agree with the plaintiffs’ contention. The result-of-treatment
instruction does not unduly emphasize the theory of the defense.
Rather, it
points to evidence favorable to the plaintiffs, and cautions the jury on the limited
use to which such evidence may be properly put.
Nor can we agree with the plaintiffs’ contention that the instruction was an
improper comment on the evidence, similar to that found in Peters v. Vander
Kooi, 494 N.W.2d 708 (Iowa 1993).
There, our supreme court restated its
conclusion that mistake-in-treatment and mistake-in-diagnosis instructions
are not statements of the law that determine a physician's duty of
care [but] . . . are comments on potential factual scenarios in which
a standard of care may or may not have been adhered to. As such,
they amount to comments on the evidence, which . . . [are]
unnecessary for the jury's determination of the issues.
Vander Kooi, 494 N.W.2d at 712-13.
Like the result-in-treatment instruction given in this case, a mistake-intreatment or mistake-in-diagnosis instruction limits the use to which a jury may
put certain evidence: they instruct the jury that a physician cannot be found
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negligent merely because he or she made a mistake in the treatment or
diagnosis of a patient. However, the mistake instructions do not simply limit the
jury’s use of evidence, but address a factual situation which may or may not be
found to exist by the jury—that the physician in fact made a mistake in treatment
or diagnosis. Here, in contrast, there is no dispute that Tripp failed to make a full
recovery following the disputed treatment.
The district court did not err in
submitting this instruction to the jury. 4
IV. Alternate-Methods-of-Treatment Instruction.
Instruction No. 20 informed the jury as follows:
Physicians may disagree in good faith upon what would be
the proper treatment or diagnosis of a medical condition in a given
situation. It is for the physician to use his or her professional
judgment to select which recognized method of treatment to use in
a given situation. If you determine that there were two or more
recognized alternative courses of action which have been
recognized by the medical profession as proper methods of
treatment and the defendant, in the exercise of their best judgment,
elected one of these proper alternatives, then the defendant was
not negligent.
The plaintiffs assert the court erred in submitting Instruction No. 20 to the jury
because record does not contain a factual basis for giving the instruction.
An alternate-methods-of-treatment instruction may be given if the following
two elements are shown by substantial evidence:
4
We decline to address the plaintiffs’ contention that Instruction No. 18 was inaccurate
or incomplete because it did not further state the result of the medical treatment could
nevertheless be considered in assessing whether negligence in fact occurred. Without
deciding whether it would have been appropriate to submit such language to the jury in
this case, we note the plaintiffs’ objections to Instruction No. 18 were limited to
assertions the instruction commented on the evidence and overemphasized the
defendant’s theory of the case, and we see no evidence the plaintiffs requested that
such language be either added to Instruction No. 18 or separately submitted to the jury.
We will not review a claim of instructional error that was not first raised before the district
court. Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998).
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(1) that, with respect to a particular act or omission upon which the
claim of negligence is predicated, there was more than one method
of treatment acceptable to a physician exercising the degree of
skill, care, and learning ordinarily possessed and exercised by
other physicians in similar circumstances; and (2) that the physician
considered these alternatives and exercised his or her best
professional judgment in choosing the method of treatment that
was utilized.
Vander Kooi, 494 N.W.2d at 713.
The plaintiffs contend the only specifications of negligence that could
possibly provide a basis for giving an alternate-methods-of-treatment instruction
are “a. To appropriately cast Carol Tripp,” and “b. Allowing Carol Tripp to be
cast at 45 degrees flexion for too long,” and that there is not substantial evidence
to support giving the instruction for either alternative. Without deciding whether
the instruction was warranted by either of the above specifications, we conclude
the court did not err in submitting Instruction No. 20 given that specification “c.
Failing to appropriately recognize and treat instability in Carol Tripp’s wrist,” did
interject the alternative treatment doctrine into this case.
The record reveals that a closed reduction and a surgical repair are
recognized treatment methods for the type of wrist injury suffered by Tripp. The
dispute in the evidence pertained to whether opting for a continued closed
reduction and extended casted flexion of the wrist breached the standard of care
under the particular facts of this case. The record reveals that both Dr. Kothari
and Dr. Gorsche relied on Tripp’s August 29 x-rays, at least in part, when making
their decisions to continue Tripp’s current course of treatment. The plaintiffs
presented evidence that Tripp’s fracture was unstable, and that based on the
August 29 x-rays Tripp should have been offered an alternative form of
treatment. Cedar Valley responded with evidence indicating that Dr. Kothari’s
10
and Dr. Gorsche’s decisions to continue Tripp’s current treatment did not breach
the standard of care. Thus, the record contained substantial evidence that there
was more than one method of treatment available to Dr. Kothari and Dr. Gorsche
that complied with the standard of care.
The record also contains substantial evidence that alternative methods of
treatment were considered and, in the exercise of best professional judgment,
rejected by both physicians.
Although the defendant was unable to present
testimony from Dr. Kothari, as he died prior to trial, the plaintiffs themselves
testified that during the August 29 visit they asked Dr. Kothari about the
possibility of performing surgery. According to the Tripps Dr. Kothari responded
by showing them the x-ray, pointing out that “it” (presumably a reference to
nonunion of the fracture site) was only three or four millimeters long, and
explained that was the reason he did not do surgery. This evidence raises at
least a reasonable inference that Dr. Kothari considered surgery, but decided to
continue the current course of treatment because he concluded the nonunion of
the site was not significant enough to warrant surgery.
However, even if the foregoing were not enough to satisfy the second
element of the alternative methods test as to Dr. Kothari, Dr. Gorsche testified
that he considered, and rejected, surgery as an alternate treatment of Tripp’s
healing wrist fracture.
Dr. Gorsche stated that he believed there was no
indication to change Tripp’s current treatment on September 6, specifically that
surgery was not indicated at that time, because Tripp had an acceptable
reduction of her fracture, and further that the cast should not be removed
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because “you run the risk of further loss of reduction of the fracture . . . [a]nd,
secondly, her finger motion was improving . . . .”
The foregoing evidence, in light of specification “c,” provides substantial
support for submitting an alternate-methods-of-treatment instruction to the jury.
The Tripps’ allegations of prejudice, which appear to stem from the premise that
Instruction No. 20 was without sufficient evidential support, are accordingly
rejected. The district court did not err in submitting this instruction to the jury.
V. Conclusion.
No prejudicial error resulted from the district court’s decisions to submit
Instruction No. 18 and Instruction No. 20 to the jury over the Tripps’ objections.
The jury verdict and judgment in favor of Cedar Valley are accordingly affirmed.
AFFIRMED.
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