ARLISS ULLMAN, Individually and as Executor for the ESTATE OF FRANK ULLMAN; KENT ULLMAN, Individually; KAREN STOCK TON , Individually; and KEVIN ULLMAN, Individually, Plaintiffs - Appellants, vs. SAMUEL CONGELLO, D.O., BRYON BEASLEY, M.D., and MASON CITY CLINIC, P.C., Defendants - Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 8-870 / 07-1920
Filed November 26, 2008
ARLISS ULLMAN, Individually and as
Executor for the ESTATE OF FRANK ULLMAN;
KENT ULLMAN, Individually; KAREN
STOCKTON, Individually; and KEVIN ULLMAN,
Individually,
Plaintiffs-Appellants,
vs.
SAMUEL CONGELLO, D.O., BRYON BEASLEY, M.D.,
and MASON CITY CLINIC, P.C.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, James M.
Drew, Judge.
Plaintiffs appeal a jury verdict in favor of the defendants in a medical
negligence case. AFFIRMED.
Alfredo Parrish and Tammy Westhoff-Gentry of Parrish Kruidenier Dunn
Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for appellants.
Thomas A. Finley and Frederick T. Harris of Finley Alt Smith Scharnberg
Craig Hilmes & Gaffney, P.C., Des Moines, for appellees.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
2
EISENHAUER, J.
Frank Ullmann suffered from two progressive lung diseases and a heart
condition. Dr. Congello and Dr. Beasley treated Ullmann‟s heart condition by
prescribing the drug amiodarone.
After Ullmann died in March 2003, the
plaintiffs, Ullmann‟s wife and children, filed suit alleging medical negligence. The
alleged acts of negligence submitted to the jury were: (a) failure to use due care
to ensure that the drug therapy selected to treat Ullmann‟s heart condition was
appropriate and necessary; (b) failure to properly monitor the use of amiodarone;
(c) failure to detect the warning signs of amiodarone toxicity; and (d) failure to
timely stop the use of amiodarone.
In September 2007, the jury returned a
verdict in favor of the doctors. The plaintiffs appeal arguing the court erred in
giving an alternative-treatment instruction to the jury and in limiting impeachment
of the doctors‟ expert witness. Finding no error, we affirm.
I.
Alternate-Methods-of-Treatment Instruction.
We review the court‟s decision to give the challenged jury instruction for
correction of errors of law.
Anderson v. Webster City Cmty. Sch. Dist., 620
N.W.2d 263, 265 (Iowa 2000).
However, instructional error 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). Instruction No. 14 informed the jury:
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 being within the standard
of care, and the defendants, in the exercise of their best judgment,
3
elected one of those proper alternatives, then defendants were not
negligent.
The plaintiffs‟ attorney objected to the instruction, stating: “[W]e would
object to the entire instruction because it could lead a jury to believe that if they
considered options that would negate any error they would have made with
regard to the treatment.” We believe the word “they” in the plaintiffs‟ objection
refers to the defendants-doctors.
On appeal, the doctors argue the plaintiffs‟ objection did not preserve error
for our review. Generally, error in jury instructions is waived if the error is not
raised, “specifying the matter objected to and on what grounds,” and ruled on by
the district court. Iowa R. Civ. P. 1.924. Further, “[n]o other objections shall be
. . . asserted on appeal.” Id. “Even a timely objection to jury instructions will not
avoid waiver of error if the objection is not sufficiently specific.”
Olson v.
Sumpter, 728 N.W.2d 844, 848 (Iowa 2007). Specific objections are required “to
alert the trial court to the basis of the complaint, so that if error does exist, the
court may correct it before placing the case in the hands of the jury.” Id. at 849.
When measured against these well-established principles, the plaintiffs‟
objection perhaps preserved error on their claim Instruction 14 “places undue
emphasis on a physician‟s „best judgment‟ and, conversely minimizes the
physicians‟ culpability for the mistakes they make.”
We do not address the
plaintiffs‟ other arguments as they were not preserved for our review because the
plaintiffs cannot amplify or change an objection to jury instructions on appeal.
See id.
4
Assuming error is preserved on this single issue, we conclude the
plaintiffs‟ argument is without merit. While noting “[m]edicine is not a field of
absolutes,” an undue emphasis argument was rejected by the Iowa Supreme
Court when it approved the use of alternative-treatment instructions in Iowa.
Estate of Smith v. Lerner, 387 N.W.2d 576, 581-82 (Iowa 1986). Additionally, the
Smith court ruled the instruction‟s requirement of the exercise of “best judgment”
negated the plaintiff‟s contention the “jury could not find the defendants negligent
in selecting improper treatments, so long as they were recognized ones.” Id. We
conclude the plaintiffs are making a similar argument as the arguments made
and rejected in Smith, and the trial court did not err in submitting Instruction 14 to
the jury.
II.
Expert Testimony.
The plaintiffs also argue the district court erred in improperly limiting
impeachment of a defense expert witness. On cross-examination, the plaintiffs‟
attorney examined the expert‟s history: (1) he had testified for the worker in
fifteen to twenty percent of asbestos cases; (2) in over 100 non-asbestos,
workers‟ compensation cases, his testimony was ninety to ten percent in favor of
the corporation; and (3) he had testified for the employer/corporation in all thirtyeight of the published, non-asbestos workers‟ compensation cases. The court
allowed additional cross-examination about two of the workers‟ compensation
cases, but then ruled, “that‟s enough . . . because they‟re of marginal relevance .
. . and I am uncomfortable given they‟re other proceedings that aren‟t even under
the same standard that we‟re under here.”
5
The scope of cross-examination is within the trial court‟s discretion and we
reverse only if there has been an abuse of discretion causing prejudice.
Campbell v. Van Roekel, 347 N.W.2d 406, 411 (Iowa 1984). After reviewing the
record and considering the arguments of the parties, we find no abuse of
discretion. See Iowa Ct. R. 21.29(1)(e).
AFFIRMED.
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