SHARON MOHAMMED AND DORIS WHIGHAM CURRY, As Co-Administrators of the Estate of JERRY WHIGHAM, Plaintiffs-Appellants, vs. E. ANTHONY OTOADESE, M.D., Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-432 / 05-1670
Filed November 16, 2006
SHARON MOHAMMED AND DORIS WHIGHAM CURRY,
As Co-Administrators of the Estate of JERRY WHIGHAM,
Plaintiffs-Appellants,
vs.
E. ANTHONY OTOADESE, M.D.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Plaintiffs appeal the jury’s verdict for defendant in their medical
malpractice action. REVERSED AND REMANDED.
D. Raymond Walton of Beecher, Field, Walker, Morris, Hoffman &
Johnson, P.C., Waterloo, for appellants.
Sarah J. Gayer, Connie Alt, and Jennifer E. Rinden, of Shuttleworth &
Ingersoll, P.L.C., Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Vogel, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
2
BEEGHLY, S.J.
I.
Background Facts & Proceedings
Jerry Whigham was referred to Dr. E. Anthony Otoadese for an enlarged
thyroid, otherwise known as goiter. Dr. Otoadese specializes in thoracic and
cardiovascular surgery. Whigham’s thyroid had enlarged to the extent it was
pressing on his trachea, right lung, and superior vena cava, a large vein. On
February 27, 2001, Dr. Otoadese performed a mediastinotomy, which meant he
opened Whigham’s chest to remove the enlarged thyroid.
After the surgery Whigham had bilateral paralysis of the recurrent
laryngeal nerves, with the result that he was unable to breath normally.
A
tracheostomy tube was installed which allowed Whigham to breath through the
tube. On December 30, 2002, Whigham removed the tube to clean it, and was
unable to replace it. Other family members attempted to help him, but were
unable to get the tube in. Whigham suffered cardiac arrest and went into a
coma.
On February 26, 2003, Sharon Mohammed, who was Whigham’s niece
and conservator, filed a medical malpractice action against Dr. Otoadese,
claiming that during the surgery in 2001 he had negligently damaged Whigham’s
recurrent laryngeal nerves. Whigham died on September 9, 2003, while the suit
was pending. Mohammed and Whigham’s sister, Doris Whigham Curry, as coadministrators of Whigham’s estate, were substituted as the plaintiffs in the
action.
During the trial, plaintiffs presented the expert testimony of Dr. Russell
Smith, an ear, nose and throat specialist. Dr. Smith testified that he performed
3
many surgeries to remove thyroids every year. He testified that an enlarged
thyroid should be removed through the neck because there is a better chance of
protecting the recurrent laryngeal nerves during surgery. Dr. Smith stated that if
an enlarged thyroid extended into the chest, so that it had a substernal
component, the incision could be extended, but he did not believe it was proper
to enter through the chest to remove an enlarged thyroid. Dr. Smith stated he
believed Dr. Otoadese breached the appropriate standard of care.
Plaintiffs also presented the expert testimony of Dr. Richard Waldorf, a
retired general surgeon, who testified Dr. Otoadese breached the applicable
standard of care due to his failure to identify and protect the recurrent laryngeal
nerves during surgery. Dr. Robert Sarsfield testified he examined Whigham prior
to surgery, and felt a palpable mass in his neck.
Defendant presented the expert testimony of Dr. Marnix Verhofste, a
cardiothoracic surgeon.
Dr. Verhofste testified Whigham’s enlarged thyroid
extended mainly into his chest, and Dr. Otoadese properly removed it through
the chest. He stated that during this type of surgery it is very difficult to find the
recurrent laryngeal nerves. Dr. Courtney Harris, a retired cardiovascular and
thoracic surgeon, testified Whigham’s enlarged thyroid was unusually large and
mainly extended into the chest, and it was properly removed through the chest.
Dr. Louis Alt, a ear, nose and throat specialist, testified Dr. Otoadese acted in a
reasonable manner. 1
Dr. Otoadese testified Whigham had a rare type of enlarged thyroid
because it was very large and was about ninety-five percent in the chest area.
1
Dr. Alt is the brother of one of the defense attorneys, Connie M. Alt.
4
He agreed that most enlarged thyroids can be removed through the neck, but
stated that the specific circumstances of this case were such that Whigham’s
enlarged thyroid had to be removed through the chest. He testified he did not
look for the recurrent laryngeal nerves because Whigham was not in very good
health, and he wanted to remove the enlarged thyroid as quickly as possible.
The jury returned a verdict for defendant. Plaintiffs filed a motion for new
trial, contesting several evidentiary rulings. The district court denied the motion
for new trial. Plaintiffs appealed.
II.
Standard of Review
In this law action, our review is for the correction of errors of law. Iowa R.
App. P. 6.4. We review for an abuse of discretion certain evidentiary rulings
made by the district court. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002).
An abuse of discretion exists when the court exercises its discretion on grounds
or for reasons clearly untenable or to an extent clearly unreasonable. Id.
III.
Prior Suit
Defendant sought to introduce evidence that Whigham had filed a slipand-fall suit against Hy-Vee Stores in February 2002 based on an incident in
2000. He claimed the evidence was relevant to show Whigham had the ability to
file a lawsuit after his surgery, and before he went into a coma, but it was not the
present suit. Plaintiffs claimed the evidence was not relevant and was being
introduced in an attempt to show Whigham was litigious.
The district court
determined the evidence was admissible.
During the trial, defense attorneys asked Whigham’s sister several
questions about the slip-and-fall suit although she stated she had no knowledge
5
about it. Plaintiffs’ counsel objected to the questions, and the objections were
overruled. Plaintiffs claim the district court abused its discretion by permitting this
line of questioning.
On appeal, defendant claims he could properly cross-
examine Whigham’s sister about her knowledge of Whigham’s affairs, including
the previous lawsuit.
Generally, under Iowa Rule of Evidence 5.402 all relevant evidence is
admissible, while evidence which is not relevant is not admissible. Graber v. City
of Ankeny, 616 N.W.2d 633, 637 (Iowa 2000). Relevant evidence is defined as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Iowa R. Evid. 5.401. A court considers
whether a reasonable person might believe the probability of the truth of the
consequential fact to be different if the person knew of the proffered evidence.
McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000).
We find the evidence of the prior suit is clearly not relevant to any facts of
consequence in the present case.
Whether Whigham had the ability to file
another lawsuit, and whether his sister had any knowledge of his affairs, are not
facts of consequence to the present medical malpractice case. We conclude the
district court abused its discretion in ruling the evidence was admissible.
Not every ruling admitting irrelevant evidence requires reversal. Id. We
will reverse only if a district court’s erroneous ruling affects the substantial rights
of the complaining party. Graber, 616 N.W.2d at 638. Although a presumption of
prejudice arises when a court receives irrelevant evidence over a proper
6
objection, the presumption is not sufficient to require reversal if the record shows
a lack of prejudice. Johnson v. Kaster, 637 N.W.2d 174, 181 (Iowa 2001).
We determine the evidence that Whigham filed a previous lawsuit against
Hy-Vee was prejudicial to plaintiffs in this case. It is clear the evidence was
designed to show Whigham was litigious.
In arguments before the court
concerning the admissibility of the evidence, defense counsel stated “[Whigham]
had control of his mental capabilities, his faculties, and he was off to the
courthouse filing lawsuits.” This evidence, which suggested litigiousness, could
have biased the jury against plaintiffs. In this case, the record does not show a
lack of prejudice.
We remand for a new trial based on the introduction of this irrelevant
evidence. Because certain other evidentiary issues may arise on remand, we will
address them at this time.
IV.
Medical Bills
Whigham’s medical bills were paid by Medicare and Medicaid. Those
amounts would have to be repaid to Medicare and Medicaid out of any recovery
made by Whigham’s estate in the present case. Iowa Code section 147.136
(2003) provides:
In an action for damages for personal injury against a
physician and surgeon . . . in which liability is admitted or
established, the damages awarded shall not include actual
economic losses incurred or to be incurred in the future by the
claimant by reason of the person injury . . . to the extent that those
losses are replaced or are indemnified by insurance, or by
governmental, employment, or service benefit programs or from
any other source except the assets of the claimant or of the
members of the claimant’s immediate family.
7
Plaintiffs
argued
that
because
Whigham’s
estate
could
become
responsible for the medical bills, the bills should be admissible under section
147.136.
The district court agreed plaintiffs could present evidence of the
amount of the medical bills paid by Medicare and Medicaid, but also had to
include the fact that the bills had been paid by those entities. The parties entered
into a stipulation as to the amount of Whigham’s medical expenses.
The
stipulation then provided:
You are instructed that these medical expenses were paid
by Medicare and Medicaid and shall be paid back to Medicare and
Medicaid out of any dollar amount awarded by you to his estate
only if you should find his estate is entitled to recover monetary
damages against the Defendant.
We determine the stipulation sufficiently sets forth the facts in this case,
and the law under section 147.136. See Peters by Peters v. Vander Kooi, 494
N.W.2d 708, 714 (Iowa 1993) (finding it was permissible under section 147.136
to present evidence of Medicaid benefits to allow jury to make a determination of
recovery in light collateral source payments).
V.
Treatise
One of plaintiffs’ experts, Dr. Smith, was prepared to testify that he had
relied upon a treatise, Greg Randolph, M.D., Surgery of the Thyroid and
Parathyroid Glands (2003), to support his opinion that Dr. Otoadese had
breached the reasonable standard of care in treating Whigham’s enlarged
thyroid. Defendant objected to the use of the treatise because it was published
in 2003, and was not available to Dr. Otoadese when the surgery was performed
in 2001. The district court determined Dr. Smith could not read from the treatise
or testify about it.
8
Under Iowa Rule of Evidence 5.803(18), learned treatises are excluded
from application of the hearsay rule. If a treatise is admitted under the rule,
statements from the treatise may be read into evidence, but may not be received
as exhibits. Ward v. Loomis Bros., Inc., 532 N.W.2d 807, 811-12 (Iowa Ct. App.
1995). Whether a treatise should be admissible is left to the sound discretion of
the district court. See Heinz, 653 N.W.2d at 338 (noting evidentiary rulings are
reviewed for an abuse of discretion). We make no decision on appeal as to the
admissibility of the treatise evidence because that will depend on whether and
how it is offered at the new trial.
VI.
Hospital Privileges
Plaintiffs sought to introduce evidence that Dr. Otoadese did not have
privileges to perform thyroidectomies at Allen Hospital in Waterloo, where the
surgery was performed. The introduction of this evidence would depend upon a
showing of relevance. Graber, 616 N.W.2d at 637. We make no finding as to
the admissibility of this evidence, which would depend upon the evidence
presented at the new trial.
VII.
Display of Emotion
During the trial, Dr. Otoadese had a brief display of emotion. We believe
this incident will not repeat itself, and need not be further addressed.
VIII.
Whigham’s Noncompliance
Also, during the trial, Dr. Verhofste testified Whigham was not a compliant
patient. Plaintiffs’ counsel objected, stating he believed defendant was moving
into an area of comparative fault, which had not been pled. The district court
overruled the objection.
9
On appeal, plaintiffs contend the evidence of Whigham’s compliance
should not have been admitted because it was irrelevant to any issue before the
court.
Although comparative fault was not an issue, the jury could still hear
evidence concerning whether Dr. Otoadese’s conduct was the proximate cause
of Whigham’s damages. On retrial, evidence of Whigham’s noncompliance may
be admissible if it is determined to be relevant to the issue of proximate cause.
We reverse the decision of the district court, and remand the case for a
new trial.
REVERSED AND REMANDED.
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