RICHARD TYLER DICKENS, Individually and as Special Executor for THE ESTATE OF SHARON KENYON , Plaintiff s - Appell ants , vs. ASSOCIATED ANE S THESIOLOGISTS, P.C. , Defendant - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-571 / 07-1882
Filed August 27, 2008
RICHARD TYLER DICKENS,
Individually and as Special Executor
for THE ESTATE OF SHARON KENYON,
Plaintiffs-Appellants,
vs.
ASSOCIATED ANESTHESIOLOGISTS, P.C.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
The special executor of the Sharon Kenyon Estate appeals from the trial
court’s summary judgment ruling dismissing the executor’s malpractice lawsuit
against Associated Anesthesiologists, P.C. AFFIRMED.
Christopher Kragnes of Kragnes & Associates, P.C., Des Moines, for
appellant.
Loree Nelson of Gislason & Hunter, L.L.P., Des Moines, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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HUITINK, P.J.
The special executor of the Sharon Kenyon Estate appeals from the trial
court’s summary judgment ruling dismissing the executor’s medical malpractice
lawsuit against Associated Anesthesiologists, P.C.
I. Background Facts and Proceedings.
The summary judgment record includes evidence of the following. Sharon
Kenyon died of a heart attack following back surgery at a Des Moines hospital.
Richard Dickens, as special executor of Kenyon’s estate, sued Associated
Anesthesiologists, P.C. (A.A.) for malpractice, claiming A.A.’s employees
breached the applicable standards of care and their fault was a proximate cause
of Kenyon’s death and resulting damages. A.A. denied its employees were at
fault or their fault, if any, was the proximate cause of Kenyon’s death and
resulting damages.
The executor retained Dr. Terrance Vaisvilas, a board certified
anesthesiologist, to review the relevant medical record and prepare a report
concerning Kenyon’s care and treatment by A.A.’s employees. In his resulting
report, Dr. Vaisvilas indicated A.A.’s employees breached the applicable
standards of care by failing to adequately evaluate Kenyon’s heart condition prior
to surgery and by failing to admit her to the intensive care unit following surgery.
In his subsequent deposition testimony, Dr. Vaisvilas testified
Q. Now, with regard to this criticism that Ms. Kenyon should
have been transferred to the ICU rather than the med-surge floor,
are you able to state to a reasonable degree of medical certainty
that that would have changed her eventual outcome?
....
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A. No, I guess I can’t say that. It certainly would have reduced her
risk of her eventual outcome. It would have certainly optimized her
care and could have – it might have changed the outcome.
Q. Let’s define what we are referencing when we use the
term outcome. Eventually she died. Everyone knows that. You
are not able to say to a reasonable degree of medical certainty that
transferring her to the ICU immediately postop would have
prevented her eventual death, correct? A. Right. I can’t say that.
Q. We know – well, I shouldn’t saw we know. In your
opinion, did she suffer an MI on August 31, 2000? A. Yes.
Q. Can you say to a reasonable degree of medical certainty
that transferring her to the ICU immediately postop would have
prevented the MI that she experienced on August 31, 2000?
A. No, I can’t say that.
....
Q. Operating under that scenario, let’s just make the
assumption that Ms. Kenyon eventually needed to have back
surgery. If the anesthesiologist had cancelled the back surgery on
August 30th, eventually Ms. Kenyon has back surgery with some
sort of evaluation and perhaps treatment in between.
A. Optimization.
Q. Even
with
optimization
of
her
cardiac
-A. Recommendations.
Q. Even with optimization and recommendations of her
cardiac status, you cannot state to any reasonable degree of
certainty that her outcome would have been different with regard to
her postoperative events, can you? A. Well, other than with those
recommendations and a full and complete understanding of her
preop status, other than that the plan should have included invasive
monitoring and ICU admission for at least 72 hours.
Q. Okay. A. Now, that would have helped her in my
opinion. Now, whether or not she would have had an MI I can’t say
with a reasonable degree of medical certainty, but clearly she
should have been in an intensive care unit to be more carefully
monitored and regulated.
Q. I want to make sure.
Are you addressing the
hypothetical I just gave you or are you addressing the actual
scenario here? A. I guess I was addressing the hypothetical with
this scenario in mind.
Q. Let’s back up. A. Maybe I screwed the question up. I
am sorry.
Q. Let’s make sure we are on the same page. We are on
your hypothetical. Dr. Jaborn [sic] cancels the surgery on August
30th. A. Dr. Jaborn, okay, cancels the surgery.
Q. Well, someone cancels surgery. I don’t care who.
Somehow surgery on August 30th gets cancelled. She has here
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what you phrase as recommendations and optimization of her
cardiac status. A. Yes.
Q. Someone determines that she still needs to have back
surgery. She comes back and she has back surgery. A. Yes.
Q. Under that scenario then you are not able to say to a
reasonable degree of medical certainty that she would not have
had an MI? A. No, I am not able to say that with a reasonable
degree of medical certainty.
A.A. thereafter moved for summary judgment “on the grounds that there is no
genuine issue of material fact the Plaintiff cannot prove a prima facie case of
medical malpractice.” The trial court, specifically citing the foregoing deposition
testimony, concluded that “there is no genuine issue of material fact on the issue
of proximate cause and Defendants are entitled to judgment as a matter of law.”
The executor’s malpractice lawsuit was accordingly dismissed, resulting in this
appeal. On appeal, the executor contends Dr. Vaisvilas’ deposition testimony
was sufficient to establish a genuine issue of fact on the issue of proximate
cause and the trial court erred by concluding otherwise.
II. Scope of Review.
Our scope of review on appeal from an entry of summary judgment is wellsettled.
We, like the district court, are obliged to view the factual record in
the light most favorable to the resisting party, affording that party all
reasonable inferences that the record will bear.
Summary
judgment is proper only if the record made shows that there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. If the conflict in the record
concerns only the legal consequences flowing from undisputed
facts, entry of summary judgment is proper. . . . Our review,
therefore, is for the correction of errors at law.
Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 649-50 (Iowa 2000)
(citations omitted).
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III. The Merits.
To establish a prima facie case of medical malpractice, the plaintiff must
demonstrate the applicable standard of care, the violation of this standard of
care, and a causal relationship between the violation and the harm allegedly
suffered by the plaintiff. Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa
2001). In medical malpractice actions, expert testimony of a technical nature is
required to show standards of care and causation. Cox v. Jones, 470 N.W.2d
23, 25 (Iowa 1991); see also DeBurkarte v. Louvar, 393 N.W.2d 131, 135 (Iowa
1986) (“In medical malpractice actions, expert testimony is generally necessary
to establish causation.”).
Expert testimony indicating a probability or likelihood of a causal
connection is considered sufficient to create a genuine issue of material fact on
the causation element of medical malpractice. Hansen v. Central Iowa Hosp.
Corp., 686 N.W.2d 476, 485 (Iowa 2004). In the absence of other evidence from
which causation may be inferred, expert testimony indicating a malpractice
defendant’s fault possibly or could have caused an injury and resulting damages
is not sufficient to satisfy the probability or likelihood standard.
Winter v.
Honeggers’ & Co., 215 N.W.2d 316, 323 (Iowa 1974).
Our review of the summary judgment record leads us to the same result
reached by the trial court. As the trial court correctly concluded, Dr. Vaisvilas
“could have” or “might have” testimony does not satisfy the likelihood or
probability standard required to generate a genuine issue of material fact on this
issue. Moreover, the remaining record fails to disclose any evidence from which
causation may be inferred when considered in combination with Dr. Vaisvilas’
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testimony. See id. Because the trial court applied the correct legal standards to
the undisputed facts in the summary judgment record, we affirm the trial court’s
ruling granting A.A.’s motion of summary judgment dismissing the executor’s
malpractice lawsuit.
AFFIRMED.
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