ELLEN GRAMS, Plaintiff-Appellant, vs. LORI RENNER, R.N. and GENESIS MEDICAL CENTER, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-334 / 08-1269
Filed July 22, 2009
ELLEN GRAMS,
Plaintiff-Appellant,
vs.
LORI RENNER, R.N. and
GENESIS MEDICAL CENTER,
Defendants-Appellees.
_______________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Plaintiff appeals the jury verdict for defendants in this medical negligence
case. AFFIRMED.
William J. Bribriesco of William J. Bribriesco & Associates, Bettendorf, for
appellant.
Charles E. Miller and Diane M. Reinsch of Lane & Waterman, L.L.P., Rock
Island, Illinois, for appellees.
Heard by Eisenhauer, P.J., and Doyle and Mansfield, JJ.
2
EISENHAUER, J.
Ellen Grams brought suit against Lori Renner and Genesis Medical Center
alleging medical negligence. Trial resulted in verdicts in favor of the defendants.
Grams appeals claiming error in instructing the jury and in denying her motion to
exclude expert testimony. We affirm.
I.
Background Facts & Proceedings
Grams was scheduled to have surgery for a hernia with Dr. Gregory Bohn
on July 11, 2002, at Genesis Medical Center in Davenport. Prior to arriving at
the hospital, Grams signed a consent to surgery designating the right upper
quadrant of the abdomen as the site of the operation. The history and physical
authenticated by Dr. Bohn, however, stated Grams had a mass in the right lower
quadrant of the abdomen.
Renner was assigned as the circulating nurse for Grams‟s surgery. 1
Before the surgery, Grams told Renner she was having surgery in the right upper
quadrant. Renner noticed the discrepancy with Dr. Bohn‟s history and physical.
Renner obtained a signed consent to surgery in the right lower quadrant from
Grams. Grams was prepared for surgery in either location and placed under
anesthesia.
When Dr. Bohn arrived, Renner and the anesthesiologist, Dr. Ricky
Sedgwick, informed Dr. Bohn there was a question concerning the location of the
surgery. Dr. Bohn did not answer, but proceeded with surgery in the right lower
quadrant. Renner then ripped up the first written consent to surgery for the right
1
A circulating nurse takes a patient to the operating room, prepares paperwork, and
transports patients to the recovery room after surgery.
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upper quadrant. She also crossed off the word “upper” in the phrase “right upper
quadrant” in a pre-operative order and wrote in “lower,” and initialed the change.
After the surgery, Renner told her supervisor, Vari Nelson, she believed
Dr. Bohn had performed surgery in the wrong location. The matter was also
discussed with Grams‟s aunt, Marsha Damushes.
Dr. Bohn told Grams she
could come back in a few days and have surgery on the right upper quadrant, or
she could have the procedure that same afternoon. Grams agreed to the second
surgery that day. Renner had Grams sign a new consent to surgery in the right
upper quadrant. This form was also signed by Damushes because Grams was
still partially sedated with pain medication from the first surgery.
On July 10, 2006, Grams filed suit against Renner and Genesis Medical
Center.2 Grams claimed Renner was negligent in destroying the first consent to
surgery in the right upper quadrant, changing the pre-operative order, and failing
to take steps to stop the surgery. Grams claimed the action was not barred by
the statute of limitations due to fraudulent concealment by Renner based on her
actions of ripping up the first consent to surgery and changing the pre-operative
order.
The defendants designated Dr. Daniel Congreve, the former Director of
Surgery at Genesis Medical Center, to testify concerning the appropriate nursing
standard of care. Grams filed a motion to exclude Dr. Congreve‟s testimony,
claiming as a surgeon he did not have sufficient knowledge to testify to the
proper standard of care for a nurse. The district court found Dr. Congreve as the
Director of Surgery qualified to testify to the standard of care for a nurse.
2
A separate suit was filed against Dr. Bohn in 2004.
4
Grams objected to proposed jury instruction No. 22, setting forth the
elements of fraudulent concealment.
Grams claimed the instruction did not
adequately follow the Iowa Supreme Court‟s ruling in Christy v. Miulli, 692
N.W.2d 694, 702 (Iowa 2005). The court did not amend the proposed instruction
as requested by Grams.
The issue of fraudulent concealment was submitted to the jury, along with
the issue of negligence. The jury found for defendants. Grams filed a motion for
a new trial, raising the issue of Dr. Congreve‟s testimony and the jury instruction
on fraudulent concealment. The district court denied the motion for new trial.
Grams now appeals.
II.
Jury Instructions
Grams contends the district court erred in giving Instruction No. 22
because it did not accurately reflect the law regarding fraudulent concealment.
Instruction No. 22 provided:
Plaintiff‟s claim of fraudulent concealment prevents
Defendants from raising the statute of limitations defense. In order
to prove fraudulent concealment Ellen Grams must prove each of
the following elements by clear, convincing and satisfactory
evidence:
1.
By some act of fraud, Lori Renner did some
affirmative act to conceal the Plaintiff‟s claims;
2.
Ellen Grams lacked knowledge of the true facts
necessary to file her claims;
3.
The acts of concealment took place after the acts of
negligence;
4.
Lori Renner intended that Ellen Grams act or fail to
act based upon the concealment; and
5.
Ellen Grams acted in reliance of Lori Renner‟s
concealment to her prejudice in not timely filing her claims.
The circumstances justifying fraudulent concealment end
when Ellen Grams became aware of the fraud or concealment, or
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by the use of ordinary care and diligence should have discovered
the fraud or concealment.
If you find that Ellen Grams has proven each of the elements
of fraudulent concealment, then Defendants cannot raise the
statute of limitations as a defense and Ellen Grams may seek to
recover damages that you find she suffered, if any, on her claims of
negligence as explained to you in Instruction No. 12. If you find
that Ellen Grams has failed to prove any one of the elements of
fraudulent concealment, then her claims for negligence are time
barred and you need not consider damages.
Our standard of review concerning alleged errors in respect to jury
instructions is for the correction of errors at law. Banks v. Beckwith, 762 N.W.2d
149, 151 (Iowa 2009). We review to determine whether prejudicial error has
occurred. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 20
(Iowa 2000). Jury instructions must be considered as a whole, and if the jury has
not been misled, there is no reversible error. Thavenet v. Davis, 589 N.W.2d
233, 236 (Iowa 1999).
A.
Grams claims the district court improperly included five elements in
a claim of fraudulent concealment, instead of only four. Before the district court
Grams stated, “We would ask the Court to give the four articulated elements of
the Christy case in its instruction, and not add a fifth.” She asked that the third
element in the court‟s instruction be eliminated.
In Christy, 692 N.W.2d at 702, the Iowa Supreme Court lists four elements
to establish a claim of equitable estoppel, which creates the foundation for a
claim of fraudulent concealment. The elements of equitable estoppel are: (1) the
defendant has made a false representation or concealed material facts; (2)
plaintiff lacks knowledge of the true facts; (3) defendant intended for plaintiff to
act on the representations; and (4) plaintiff relied on the representations to his or
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her prejudice. Christy, 692 N.W.2d at 702. The supreme court also stated, “With
respect to the first element, a party relying on the doctrine of fraudulent
concealment must prove the defendant did some affirmative act to conceal the
plaintiff‟s cause of action independent of and subsequent to the liability-producing
conduct.” Id.
The element in Instruction No. 22 not found in the list of four factors in
Christy, 692 N.W.2d at 702, is the third element, “The acts of concealment took
place after the acts of negligence.” We find no error in the addition of this
element. For a claim of fraudulent concealment, “there must be a „temporal
separation of the acts of negligence and the acts of alleged concealment; the
concealment must take place after the alleged acts of negligence occurred.‟”
Schlote v. Dawson, 676 N.W.2d 187, 195 (Iowa 2004) (quoting Van Overbeke v.
Youberg, 540 N.W.2d 273, 276 (Iowa 1995)). The defendant must engage in an
affirmative act to conceal the cause of action, independent of and subsequent to
the alleged negligent conduct. Hallet Constr. Co. v. Meister, 713 N.W.2d 225,
231 (Iowa 2006). We conclude the added element is supported by the law, and
was properly included in the jury instruction.
B.
Grams also claims the district court erred by giving Instruction No.
22 because it incorporated the concept of inquiry notice.
Grams did not
specifically object on this ground to Instruction No. 22.3 A party challenging a
jury instruction must “specify[ ] the matter objected to and on what grounds.”
Iowa R. Civ. P. 1.924. Objections to instructions must be sufficiently specific to
3
The transcript shows the defendants attempted to add an instruction on inquiry notice,
but the court denied their request.
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alert the district court to the basis for the complaint. Olson v. Sumpter, 728
N.W.2d 844, 848 (Iowa 2007). “No other grounds or objections shall be asserted
thereafter, or considered on appeal.”
Iowa R. Civ. P. 1.924.
We conclude
Grams failed to preserve error on her claim Instruction No. 22 improperly
included the concept of inquiry notice.
C.
Grams further claims Instruction No. 22 unduly emphasized the
defendants‟ theory of the case.
Defendants requested the last paragraph of
Instruction No. 22, and Grams objected. She contended the paragraph placed
undue emphasis on defendants‟ assertion the statute of limitations applied in the
absence of fraudulent concealment. On appeal, however, Grams is claiming the
addition of the element, “The acts of concealment took place after the acts of
negligence,” unduly emphasized defendants‟ assertion that the act of negligence
and the act of fraudulent concealment must be separate.
To the extent Grams‟s argument on appeal is different than the objection
raised at trial, we determine she had not preserved error. See Iowa R. Civ. P.
1.924.
Additionally, we have already concluded the district court properly
included a statement that the act of fraudulent concealment must be separate
and subsequent from the act of negligence. See Hallet Constr. Co., 713 N.W.2d
at 231.
A jury instruction should not give undue prominence to any particular
aspect of a case. Peters by Peters v. Vander Kooi, 494 N.W.2d 708, 713 (Iowa
1993). An instruction may constitute reversible error if it unduly emphasizes a
particular theory or otherwise distracts the jury in performing its responsibility to
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decide the issues in a case. Smith v. Koslow, 757 N.W.2d 677, 681 (Iowa 2008).
Grams does not claim the concept found in element three in Instruction No. 22
was covered elsewhere in the instructions. We conclude the jury instructions do
not unduly emphasize this point of law. We find no error in the submission of
Instruction No. 22.
III.
Expert Testimony
Grams contends the district court abused its discretion by permitting Dr.
Congreve to testify to the standard of care for nurses. The admission of expert
testimony is largely within the discretion of the district court. Johnson v. Am.
Family Mut. Ins. Co., 674 N.W.2d 88, 91 (Iowa 2004). Expert testimony should
be admissible if it will assist the trier of fact to understand the evidence or
determine a fact at issue. Schlader v. Interstate Power Co., 591 N.W.2d 10, 13
(Iowa 1999). “We are committed to a liberal rule on admissibility of opinion
testimony.” Wick v. Henderson, 485 N.W.2d 645, 648 (Iowa 1992). Only when
the district court has clearly abused its discretion would the admissibility of such
evidence be found to be prejudicial. Heinz v. Heinz, 653 N.W.2d 334, 341 (Iowa
2002).
Iowa Rule of Evidence 5.702 provides, “a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form
of an opinion or otherwise.” The Iowa Supreme Court has rejected licensure as a
requirement for admission of expert testimony. Carolan v. Hill, 553 N.W.2d 882,
888 (Iowa 1996). The court has held the criteria of rule 5.702 must be employed,
instead of merely examining whether a proposed expert belongs to a particular
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profession or has a particular degree. Hutchison v. Am. Family Mut. Ins. Co.,
514 N.W.2d 882, 885 (Iowa 1994). Thus, it is possible for a physician to testify to
the standard of care for nurses. See Biddle v. Sartori Mem’l Hosp., 518 N.W.2d
795, 799 (Iowa 1994).
The district court found Dr. Congreve had the knowledge, background,
and experience to testify to the standard of care for nurses. He had knowledge
of the general development of the standards of care for a nurse to take a patient
to the operating room. The court also noted Dr. Congreve, as the Director of
Surgery at Genesis Medical Center, participated in the creation of standards of
care for surgical nurses.
We conclude the district court did not abuse its discretion in permitting Dr.
Congreve to testify to the standard of care for a nurse in this case. The court
properly applied the law by not looking merely to determine whether Dr.
Congreve was licensed as a nurse. See Carolan, 553 N.W.2d at 888. The court
looked to the criteria in rule 5.702, the knowledge, skill, experience, training, or
education of the witness. We find no abuse of discretion in the court‟s conclusion
Dr. Congreve had sufficient expertise to testify to the standard of care for a
surgical nurse.
We affirm the decision of the district court.
AFFIRMED.
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