DWAYNE HUPKE and DOROTHY HUPKE, Plaintiffs-Appellants, vs. FAMILY HEALTH CARE OF SIOUXLAND, P.L.C., Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-504 / 07-0080
Filed October 24, 2007
DWAYNE HUPKE and DOROTHY HUPKE,
Plaintiffs-Appellants,
vs.
FAMILY HEALTH CARE OF SIOUXLAND, P.L.C.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Edward A.
Jacobson, Judge.
Plaintiffs appeal from the district court’s ruling denying their motion for new
trial following a verdict and judgment entry in favor of defendant. AFFIRMED.
Edward J. Keane of Gildemeister & Keane, L.L.P., Sioux City, for
appellants.
Charles T. Patterson and John C. Gray of Heidman, Redmond, Fredregill,
Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Dwayne and Dorothy Hupke appeal from the district court’s ruling denying
their motion for new trial following a verdict and judgment entry in favor of Family
Health Care of Siouxland, P.L.C. We affirm the judgment of the district court.
I.
BACKGROUND FACTS AND PROCEEDINGS.
On September 15, 2004, Dwayne Hupke underwent a colonoscopy and
esophogastroduodenoscopy at Family Health Care. Dr. John Kissel, the Hupkes’
family physician, began performing the outpatient diagnostic procedures at 11:05
a.m. and finished at 11:30 a.m. Barb Heikes, a registered nurse with over thirty
years experience, assisted Dr. Kissel. Dwayne received the medications Versed
and Demerol throughout the twenty-five minute procedure, which caused him to
be “arousable but asleep.”
Heikes monitored Dwayne after Dr. Kissel completed the procedures. She
engaged in conversation with him “to get him awake more” and gave him water
and toast around noon to aid in rousing him. After he finished the water and
toast, she “had him set on the edge of the bed to make sure he was stable and
then . . . assisted him to the bathroom.”
Heikes helped him sit down on the toilet and “put the chair with his clothes
on it right up next to the toilet, so they were right in front of him.” She told him
she would “be right outside the door, if he needed anything to please let [her]
know.” She further instructed him “to sit and call me when he was ready to put
his clothing on.” Heikes left the bathroom door “cracked open” and waited for
Dwayne a few feet outside of the bathroom. Approximately two to three minutes
later, she went into the bathroom after hearing a noise and discovered Dwayne
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“standing, just leaning over the sink, and he had one hand up over his eye.” He
told her “he had slipped and hit his eye on the sink.” Dr. Kissel’s notes following
the incident indicated “apparently he got one leg in his underwear and then lost
his footing and fell.” Dwayne thereafter lost sight in his eye.
The Hupkes filed an amended petition against Family Health Care on May
19, 2005. They alleged Family Health Care’s employee, Heikes, negligently left
Dwayne alone in the bathroom while unattended resulting in a permanent and
severe eye injury. Dwayne sought recovery for his personal injury and damages,
while Dorothy sought recovery on a loss of consortium claim.
The Hupkes filed a motion in limine on September 22, 2006, requesting in
relevant part that the district court preclude Family Health Care from introducing
the following evidence: (1) whether the Hupkes had any complaint with any of the
care or treatment rendered by Dr. Kissel before September 15, 2004; (2) whether
the Hupkes had their records transferred from Dr. Kissel’s office after the
incident; (3) whether Dwayne had any complaints regarding a previous
colonoscopy done at Dr. Kissel’s office in October of 2001; (4) an informed
consent form signed by Dwayne concerning the procedures performed on
September 15; and (5) a survey of nurses taken by Family Health Care’s expert
witness, Dr. Ronald Kolegraff. Following a hearing, the district court entered an
order sustaining the motion as to certain evidence and overruling the motion as
to the above-listed evidence.
The case proceeded to trial on September 26, 2006. The jury returned a
verdict in favor of Family Health Care. The Hupkes filed a motion for new trial
asserting the verdict was not supported by sufficient evidence.
They further
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asserted “[e]vidence of implied consent should not have been admitted,” and
“Defendants should not have been permitted to introduce evidence that Plaintiffs
had no complaint against Dr. Kissel, but had their records transferred from Dr.
Kissel’s Office.”
The district court entered a ruling on December 6, 2006,
denying the motion for new trial.
The Hupkes appeal. They claim the district court erred when it allowed
“irrelevant, prejudicial, misleading, and confusing” evidence regarding (1) the
informed consent form signed by Dwayne; (2) Dr. Kolegraff’s survey of nurses;
(3) whether the Hupkes had any complaints related to Dr. Kissel’s care or
treatment before September 15, 2004; (4) whether the Hupkes complained about
a prior colonoscopy procedure conducted at Dr. Kissel’s office in October 2001;
and (5) whether the Hupkes transferred their records from Dr. Kissel’s office and
terminated their doctor-patient relationship after September 15.
They further
claim the district court erred in failing to grant a new trial because the jury’s
verdict was not supported by sufficient evidence.
II.
SCOPE AND STANDARDS OF REVIEW.
Our review of a district court’s ruling on a motion for new trial depends on
the grounds raised in the motion. Clinton Physical Therapy Servs., P.C. v. John
Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). When the motion
and ruling are based on discretionary grounds, our review is for abuse of
discretion. Id. However, when the motion and ruling are based on a claim the
trial court erred on issues of law, our review is for correction of errors at law. Id.
If a verdict “is not sustained by sufficient evidence” and the movant’s
substantial rights have been materially affected, it may be set aside and a new
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trial granted. Iowa R. Civ. P. 1.1004(6); Olson v. Sumpter, 728 N.W.2d 844, 850
(Iowa 2007). “Because the sufficiency of the evidence presents a legal question,
we review the trial court’s ruling on this ground for the correction of errors at
law.” 1 Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87
(Iowa 2004).
On the other hand, “[w]e generally review the admission of
evidence at trial for an abuse of discretion.” Clinton Physical Therapy Servs.,
714 N.W.2d at 609-10. Therefore, our review of the trial court’s ruling as to the
challenged evidence in this case is for abuse of discretion. Hansen v. Central
Iowa Hosp. Corp.¸686 N.W.2d 476, 480 (Iowa 2004).
III.
MERITS.
A.
Error Preservation.
Before we consider the merits of the claims on appeal, we must first
address Family Health Care’s contention that the Hupkes did not preserve error
on the admissibility of the contested evidence because they did not object to the
evidence at trial.
“The primary purpose of a motion in limine is to preclude reference to
potentially prejudicial evidence prior to the trial court’s definitive ruling on its
admissibility.” Ray v. Paul, 563 N.W.2d 635, 638 (Iowa Ct. App. 1997); see also
Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974) (stating a motion in limine
“serves the useful purpose of raising and pointing out before trial certain
evidentiary rulings the court may be called upon to make during the course of
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The Hupkes assert a ruling on a motion for new trial based on whether the jury’s verdict
is supported by sufficient evidence is reviewed for abuse of discretion. Family Health
Care does not disagree with this claimed standard of review. We believe Estate of
Hagedorn, 690 N.W.2d at 87, states the correct standard of review applicable to the
facts presented by this case. However, our result would be the same even if we
reviewed the issue for abuse of discretion.
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trial.”). A court’s ruling on a motion in limine is not a final ruling on evidence.
Twyford, 220 N.W.2d at 923. Instead, “[i]t adds a procedural step to the offer of
evidence.” Id. Ordinarily, error claimed in a court’s ruling on a motion in limine is
therefore waived unless a timely objection is made when the evidence is offered
at trial. State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006). However, when the
motion in limine is
resolved in such a way it is beyond question whether or not the
challenged evidence will be admitted during trial, there is no reason
to voice objection at such time during trial. In such a situation, the
decision on the motion has the effect of a ruling.
Id. (citation omitted); see also Kalell v. Petersen, 498 N.W.2d 413, 415 (Iowa Ct.
App. 1993) (stating a defendant does not need to renew objections at trial if the
prior ruling is an “unequivocal holding” on the issues raised) (citation omitted).
“The key to our analysis is to determine what the trial court ruling
purported to do.” Alberts, 722 N.W.2d at 406. A ruling that simply grants or
denies “protection from prejudicial references to challenged evidence cannot
preserve the inadmissibility issue for appellate review.”
Id. (citation omitted).
“But if the ruling reaches the ultimate issue and declares the evidence admissible
or inadmissible, it is ordinarily a final ruling and need not be questioned again
during trial.” State v. O’Connell, 275 N.W.2d 197, 202 (Iowa 1979).
No such unequivocal holding reaching the ultimate issues presented by
the motion in limine appears in the record. Instead, the court’s ruling merely
stated the Hupkes’ motion was “overruled” as to the challenged evidence. Such
a ruling does not “resolve[ ] the matter in such a way that it was beyond question
that the challenged evidence would” be admitted during trial.
N.W.2d at 406.
Alberts, 722
Thus, in order to preserve error on the admissibility of the
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contested evidence, the Hupkes needed to object to the evidence when it was
presented at trial. 2 See State v. Mendiola, 360 N.W.2d 780, 782 (Iowa 1985)
(McCormick, J., concurring specially) (“When a motion in limine is overruled,
error is not preserved unless objection is made when the evidence is offered.”).
They did not object to any of the evidence they assert the district court
erroneously allowed at trial. Therefore, error was not preserved on their claims
that the court erred in admitting the challenged evidence.
B.
Sufficiency of the Evidence.
The Hupkes’ remaining assignment of error is that the district court erred
in overruling the portion of their motion for new trial that claimed the jury’s verdict
was not supported by sufficient evidence.
We view the evidence in the light most favorable to the jury’s verdict when
reviewing a motion for new trial. Estate of Pearson ex rel. Latta v. Interstate
Power and Light Co., 700 N.W.2d 333, 345 (Iowa 2005); see also Iowa Mut. Ins.
Co. v. McCarthy, 572 N.W.2d 537, 543 (Iowa 1997) (viewing the evidence “in the
light most favorable to the jury’s verdict” in assessing the sufficiency of the
evidence). Our only inquiry is to determine whether there is sufficient evidence
2
The Hupkes do not refer us to places in the record where the district court allowed
evidence regarding whether they had any complaints related to Dr. Kissel’s care or
treatment before September 15, 2004, and whether they complained about a prior
colonoscopy procedure conducted at Dr. Kissel’s office in October 2001. Although we
find the record contains such evidence, the Hupkes’ failure to cite to the record is
sufficient in itself to hold error waived as to these claims. Iowa R. App. P. 6.14(1)(f);
Channing v. United Parcel Serv., Inc., 629 N.W.2d 835, 866 (Iowa 2001). Furthermore,
although Dr. Kolegraff’s deposition contains evidence of an informal survey of nurses in
five different hospitals, nothing indicates that the deposition or any other evidence of the
survey was presented at trial. The record simply does not demonstrate existence of the
claimed error. Finally, we note the Hupkes, not Family Health Care, offered the exhibit
at trial that contains the informed consent form they now complain about. Having offered
the exhibit, they may not now complain of its admission into evidence. Olsen v. Harlan
Nat’l Bank, 162 N.W.2d 755, 761 (Iowa 1968).
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to justify submitting the case to the jury. Bredberg v. Pepsico, Inc., 551 N.W.2d
321, 326 (Iowa 1996).
The Hupkes argue the jury’s verdict in favor of Family Health Care “is not
reconcilable with the facts” because the “evidence shows that Heikes did not
follow FHC’s policy of being in the room to assist patients with dressing after a
colonoscopy.” The Hupkes further argue “no evidence supports the conclusion
that leaving a patient still under the effects of Versed and Demerol along with his
clothing in a restroom . . . meets the appropriate standard of care.”
The standard of care a hospital or clinic owes to its patients “with respect
to nonmedical, administrative, ministerial, or routine care . . . is such reasonable
care for patients as their known mental and physical condition may require.”
Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 102 (Iowa 1971). One of the
most important circumstances in determining the reasonableness of the care is
the patient’s known condition. Id. In cases such as these, the jury can use its
own knowledge and good sense with respect to the hospital’s conduct in
question. Id.; see also Cockerton v. Mercy Hosp. Med. Center, 490 N.W.2d 856,
859 (Iowa Ct. App. 1992). Thus, the jury in this case was required to assess
whether Heikes provided reasonable care to Dwayne by assisting him to the
bathroom, leaving his clothes next to him, and instructing him to “call [her] when
he was ready to put his clothing on” in light of his known condition following the
procedures.
The evidence presented at trial established that a possible side effect of
the medications Dwayne received during his procedures is “forgetfulness.”
Dwayne testified he did not remember being assisted to the bathroom or trying to
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dress himself.
The Hupkes contended at trial it was therefore negligent for
Heikes to instruct Dwayne to wait for her before getting dressed but then leave
his clothing on a chair next to him knowing he was “still feeling the effects of the
anesthesia.” Dr. Frank Pettid, an expert witness for the Hupkes, testified Heikes
should have not put Dwayne’s clothes next to him “because under the
circumstances of his being . . . still under the influence of medications, placing
the clothes next to him would give him the false impression that . . . he can do
this on his own.”
However, Heikes testified in her experience most patients “remember[ed]
what was happening” within an hour after receiving Versed.
She closely
monitored Dwayne throughout the procedures and assessed his recovery for
approximately thirty minutes following his procedures. She did not help him to
the bathroom until she was satisfied he was “stable” as indicated in part by his
ability to engage in “normal conversation” and respond appropriately to her
questions. Heikes testified it was “routine to have all patients have you in there
when they stood up to get dressed.” Therefore, after situating Dwayne in the
bathroom, Heikes testified she “told him to sit and call me when he was ready to
put his clothing on.”
Courtney Jackson testified that she helped establish the “nursing protocol”
at Family Health Care when she was employed there as a registered nurse. She
stated Heikes’s verbal instructions to Dwayne and her care for him following his
procedures were appropriate and within protocol.
Myrna Mamaril, a clinical
nurse specialist certified in “post-anesthesia” recovery, likewise testified it is not
inappropriate in her experience to verbally instruct a patient who had been
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administered Versed because the forgetfulness associated with the medication
does not interfere with a patient’s ability to comprehend and follow verbal
instructions. Dr. Kolegraff, a general surgeon who had performed approximately
“5 to 10,000” colonoscopies, also testified Heikes’s care for Dwayne following the
procedure was consistent with the care nurses provided after procedures he
performed.
Upon review of the record, we find sufficient evidence in the record to
support the jury’s verdict in favor of Family Health Care. We therefore conclude
the district court did not err in denying the motion for new trial. The judgment of
the district court is affirmed.
IV.
CONCLUSION.
The Hupkes failed to preserve error on their claims that the court erred in
admitting the challenged evidence because they did not object to any of the
evidence at trial. There is sufficient evidence in the record to support the jury’s
verdict in favor of Family Health Care. We therefore conclude the district court
did not err in denying the motion for new trial that claimed the verdict was not
supported by sufficient evidence. The judgment of the district court is affirmed.
AFFIRMED.
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