CHRISTY CROSON, I ndividually and as Injured Parent of NATHAN CROSON, CHELSEA CROSON, and CASEY CROSON, and SCOTT CROSON, Husband of Christy Croson, Plaintiffs-Appellants, vs. THOMAS A. CARLSTROM, M.D., and THE IOWA CLINIC, P.C., Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-212 / 06-1346
Filed May 23, 2007
CHRISTY CROSON, Individually and as
Injured Parent of NATHAN CROSON,
CHELSEA CROSON, and CASEY CROSON, and
SCOTT CROSON, Husband of Christy Croson,
Plaintiffs-Appellants,
vs.
THOMAS A. CARLSTROM, M.D.,
and THE IOWA CLINIC, P.C.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
Plaintiffs appeal the jury verdict for defendants in this medical malpractice
action. AFFIRMED.
James H. Cook of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for
appellants.
Richard C. Garberson and Tricia Hoffman-Simanek of Shuttleworth &
Ingersoll, P.L.C., Cedar Rapids, for appellees.
Considered by Sackett, C.J., and Huitink, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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BROWN, S.J.
I.
Background Facts & Proceedings
Dr. Thomas Carlstrom performed back surgery on Christy Croson on
December 26, 2001, to excise a herniated disc. A surgical report indicated the
surgery had been performed at the L4-5 level. Later tests, however, showed the
surgery had been performed at the L3-4 level. Croson subsequently had back
surgery performed by Dr. Carlstrom at the L4-5 level on February 25, 2002.
Croson filed a medical malpractice action against Dr. Carlstrom, alleging
he acted negligently by failing to order an x-ray during surgery in December 2001
to verify the level of her spine in which he intended to operate. During the trial
Croson presented the expert testimony of Dr. Leonard Rutberg, a neurologist,
who testified Dr. Carlstrom breached the applicable standard of care by failing to
obtain an intra-operative x-ray to determine where he was operating.
Dr. Carlstrom testified he manually counted vertebrae, and when he came
to what he thought was the L4-5 level, he found Croson had a herniated disc,
which he removed.
He stated in some situations he would order an intra-
operative x-ray, but he did not in this situation because he found a herniated disc
where he expected one to be. Dr. Carlstrom testified there were two acceptable
methods to locate the surgical level in the back, and in this case he used the
manual method.
He stated that when he performed the second surgery in
February 2002, Croson also had a herniated disc at the L4-5 level.
Dr. Carlstrom presented the expert testimony of Dr. Patrick Hitchon, a
professor of neurosurgery at the University of Iowa. Dr. Hitchon testified there
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were two different ways to determine where to operate on a patient’s back, and
both complied with the standard of care. He testified Dr. Carlstrom was not
required to obtain an intra-operative x-ray in order to meet the standard of care.
Among the instructions submitted to the jury in this case, the district court
submitted the following:
Physicians may disagree in good faith upon what would be
the proper treatment of a medical condition in a given situation. It is
for the physician, in this case Dr. Carlstrom, to use his professional
judgment to select which recognized method of treatment or
procedure to use in a given situation. If you determine that there
were two or more recognized alternative courses of action or
procedures which have been recognized by the medical profession
as proper methods of treatment, and if Dr. Carlstrom, in the
exercise of his best judgment, elected one of these proper
alternatives, then Dr. Carlstrom was not negligent.
Croson objected to the instruction, claiming it was not supported by the evidence
in the case. The district court found there was substantial evidence in the record
to support giving the instruction.
The jury found Dr. Carlstrom was not negligent, and returned a verdict for
defendant. Croson appealed the verdict.
II.
Standard of Review
This case was tried at law, and our review is for the correction of errors at
law. Iowa R. App. P. 6.4.
III.
Merits
Croson claims the district court erred by instructing the jury on alternative
medical procedures. She claimed there was insufficient evidence to show Dr.
Carlstrom would ever use an x-ray if he were operating at the L4-5 level, and that
therefore he did not exercise professional judgment, or make a choice, not to
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order an x-ray in this case. Croson contends that under these circumstances,
submission of an alternative medical procedure instruction was improper.
An instruction on alternative medical treatment should be given only if
supported by the factual record. Peters v. Vander Kooi, 494 N.W.2d 708, 714
(Iowa 1993).
An instruction on alternative methods of treatment recognizes,
“where there are several methods of approved diagnosis or treatment, which
could be made available to a patient, it is for the doctor to use his best judgment
to pick the proper one.” Estate of Smith v. Lerner, 387 N.W.2d 576, 582 (Iowa
1986) (citation omitted).
For the instruction to be submitted, there must be substantial evidence of
alternative proper treatments for a given condition. Vachon v. Broadlawns Med.
Found., 490 N.W.2d 820, 823 (Iowa 1992). There must be substantial evidence
in the record of the following two elements:
(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.
Peters, 494 N.W.2d at 713.
If these two elements have not been met, the
instruction should not be given. Id. at 714.
Dr. Carlstrom testified there were two accepted methods to locate the
surgical level. Dr. Hitchon also testified there were two completely different ways
to do the same surgery and both complied with the standard of care. It is clear
there was substantial evidence in the record to support the first element – that
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“there was more than one method of treatment acceptable to a physician”
exercising an appropriate degree of care. Id. at 713.
On the second element, Dr. Carlstrom testified:
Q. Are there circumstances in which you will order an intraoperative x-ray for L4-L5 laminectomy? A. Sure.
Q. What are they? A. Well, when I do the operation, like I just
described, I go and I feel and I’ve made the laminotomy and look at
the disc, and if it’s funny, it’s abnormal, I will get an x-ray to see
where I am, what’s going on.
Q. Are there any other examples in which you would routinely
order intra-operative x-ray, physical characteristics? A. There are
a lot of reasons. To operate on obese patients, it’s hard to find a
level. . . . Older people, they’ve got arthritis, nerves in their back,
you get an x-ray on them or you’ll never know where you are. . . .
Then anytime I’m operating on L3-4 and above, I will get an x-ray
because I don’t want to make a huge incision. I always get x-rays
of the neck because there are palpable – no things that I can feel to
tell me where I am, so we always get them then.
Q. Were any of those medical necessity situations present on
December 26, 2001, during Ms. Croson’s surgery. A. No.
Dr. Carlstrom had formulated certain criteria as to when and in what
situations he would utilize one method or the other. The judgment he made in
this case as to which method to use was based on these criteria. We find no
error in the district court’s conclusion there was substantial evidence in the
record to show “the physician considered these alternatives and exercised his or
her best professional judgment in choosing the method of treatment that was
utilized.” Id. Contrary to Croson’s assertion, there was substantial evidence to
show Dr. Carlstrom would consider an intra-operative x-ray at the L4-5 level in
some circumstances.
We affirm the decision of the district court.
AFFIRMED.
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