Betty D. Schroeder, As Of The Estate Of Homer Schroeder, And Betty D. Schroeder, Individually Vs. Saadi Albaghdadi, M.d. ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 137 / 06-0243
Filed February 15, 2008
BETTY D. SCHROEDER, as Executor
of the Estate of HOMER SCHROEDER,
and BETTY D. SCHROEDER, Individually,
Appellants,
vs.
SAADI ALBAGHDADI, M.D.,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Gary D.
McKenrick, Judge.
A physician seeks further review of a court of appeals decision
granting the plaintiff a new trial. COURT OF APPEALS DECISION
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
William J. Bribriesco and Daniel D. Bernstein of William J.
Bribriesco & Associates, Bettendorf, for appellants.
Jack L. Brooks of Brooks & Trinrud, P.C., Rock Island, Illinois, for
appellee.
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WIGGINS, Justice.
A decedent’s wife, individually and as executor of her husband’s
estate, received an adverse verdict in a medical negligence action. The
wife appealed the verdict claiming the district court failed to submit all
the specifications of negligence she requested and erroneously instructed
the jury in a way that impermissibly commented on the evidence so as to
interfere with the jury’s fact-finding duties. The court of appeals agreed
with the wife, reversed the judgment of the district court, and granted a
new trial. On further review, we find the district court properly
instructed the jury on the specifications of negligence supported by the
evidence. We also find the district court properly designed the
instructions to reflect the standard of care the physician owed his patient
without interfering with the jury’s fact-finding duties. Therefore, we
vacate the decision of the court of appeals and affirm the judgment of the
district court.
I. Background Facts and Proceedings.
In July 2001 Homer Schroeder underwent open-heart surgery for a
blockage of three coronary arteries. Two weeks after his surgery, an
ambulance took Homer to Mercy Medical Center in Clinton. His chief
complaint was increasing shortness of breath. Homer also complained of
nausea and anxiety. The emergency room physician, Dr. Randall
Hinrichs, treated Homer. Hinrichs conducted a physical examination
and ordered tests to measure the troponin and CPKMB enzyme levels in
Homer’s blood. Elevated levels of these enzymes would indicate an injury
to Homer’s heart. Hinrichs also ordered a full blood panel, a chest x-ray,
an electrocardiogram (EKG), and an INR test, which measures the ability
of blood to clot properly.
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The blood tests revealed Homer’s potassium, INR, and troponin
levels were outside their normal ranges. The radiologist interpreted the
chest x-ray to be abnormal with fluid in the lungs and cardiomegaly, an
enlargement of the heart. A computer interpretation of the EKG also
noted some abnormality. Hinrichs ordered a second EKG, which also
indicated abnormalities. Hinrichs then compared this EKG to one taken
prior to Homer’s open-heart surgery and noted additional changes.
Hinrichs expressed to Homer’s family, including his wife Betty,
that he felt Homer should be admitted to the hospital. However, as an
emergency room physician, Hinrichs did not have admitting privileges.
Hinrichs telephoned Dr. Saadi Albaghdadi, the on-call cardiologist.
Albaghdadi was part of a cardiac group that included Homer’s regular
treating cardiologist, Dr. Qaiser Rasheed. Albaghdadi had the authority
to admit patients.
There is a factual dispute between Hinrichs and Albaghdadi
regarding how many telephone conversations took place and the
substance of the conversations. Hinrichs testified he called Albaghdadi
at home and told him about Homer’s abnormal potassium, INR, and
troponin levels. He also testified he told Albaghdadi about Homer’s
symptoms and asked that he admit Homer to the hospital. According to
Hinrichs, Albaghdadi requested Homer’s EKGs be faxed to his home
before he would decide whether to admit Homer. He faxed a prebypass
EKG and the July 17 EKG to Albaghdadi. According to Hinrichs, after he
faxed the EKGs, he spoke with Albaghdadi a second time.
Hinrichs testified Albaghdadi convinced him Homer’s troponin and
EKG results were due to his recent bypass surgery and that Homer
should be released and seen by Rasheed in the next day or two.
According to Hinrichs, Albaghdadi had him stop Homer’s Coumadin in
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order to reduce his elevated INR and prescribed oral vitamin K. Hinrichs
recorded his interpretation of this conversation in Homer’s medical
records.
Albaghdadi testified he never requested Homer’s EKGs, rather they
were sitting in his fax machine when he arrived home on the evening of
July 17. Albaghdadi testified Hinrichs only requested an interpretation
of Homer’s EKGs. Albaghdadi testified this request was an every day
practice, and Hinrichs had requested him to interpret EKGs without
examining patients in the past.
Albaghdadi testified Hinrichs’ phone call followed the faxed EKGs,
and during their only conversation, Hinrichs explained the abnormal
EKGs and Homer’s history, including his recent bypass surgery. He
further testified Hinrichs never told him about the abnormal potassium,
troponin, or INR levels. Albaghdadi also testified Hinrichs never
requested Homer be seen or admitted.
Albaghdadi testified he only interpreted the EKGs and told
Hinrichs they showed postoperative changes and a pacemaker rhythm.
Albaghdadi testified he did not think Homer needed to be hospitalized
based on the information relayed by Hinrichs; however, had Hinrichs
reported the elevated INR and potassium he would have admitted Homer
immediately.
Hinrichs discharged Homer from the emergency room, but Homer
returned to the hospital by ambulance the next morning. While Rasheed
examined Homer, he went into cardiorespiratory arrest. He died later
that afternoon.
Betty, individually and as the executor of Homer’s estate, brought
an action against Hinrichs and Albaghdadi for medical negligence. She
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settled her claims against Hinrichs prior to trial. The trial commenced
with Albaghdadi as the only defendant.
Betty presented two expert witnesses at the trial to establish the
standard of care Albaghdadi should have used when treating Homer.
Both of Betty’s experts opined if Hinrichs’ version of the July 17 events
were correct, Albaghdadi breached the standard of care by failing to (1)
properly interpret the EKGs; (2) examine Homer in the emergency room;
(3) properly diagnose Homer in the emergency room; (4) direct that
Homer be admitted to the hospital as an inpatient; and (5) properly treat
Homer.
One of Betty’s experts was asked what standard of care Albaghdadi
should have used when caring for Homer if Albaghdadi’s version of the
July 17 events was true. Under that assumption, the expert opined
Albaghdadi was only required to properly interpret the EKGs. Neither of
Betty’s experts testified Albaghdadi fell below the standard of care if
Albaghdadi’s version was true.
Albaghdadi’s expert testified, assuming Albaghdadi’s version was
true, the only duty Albaghdadi owed to Homer was to properly interpret
the EKGs. He went on to testify Albaghdadi properly interpreted the
EKGs, and therefore met the applicable standard of care. The expert did
state if Hinrichs told Albaghdadi about Homer’s elevated potassium level,
he should have admitted Homer to the hospital.
Throughout the trial, the court struggled with the issue of how to
instruct the jury because of the factual dispute regarding the July 17
events. At the pretrial conference Betty’s counsel requested the court to
find a patient-physician relationship existed and Albaghdadi owed Homer
a duty of care as a matter of law. The court reserved its ruling on this
request until the close of the evidence. At the conclusion of the evidence,
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Betty changed her position and argued the question of whether a patient-
physician relationship existed, and whether Albaghdadi owed Homer a
duty of care, should be a fact question for the jury.
During the arguments regarding a directed verdict, Albaghdadi
conceded that he had a patient-physician relationship with Homer.
Albaghdadi argued the only question for the jury to decide was the extent
of the duty he owed Homer in light of the expert testimony and the
conflict of his testimony with that of Hinrichs.
To resolve the issue the court decided to use two verdict forms.
The jury was to use verdict form one if it found that Hinrichs only
requested Albaghdadi to interpret Homer’s EKGs, and Hinrichs did not
tell Albaghdadi of the elevated potassium level. Verdict form one only
allowed the jury to find Albaghdadi negligent for failing to properly
interpret the EKGs.
The jury was to use verdict form two if it found Hinrichs sought
admission of Homer to the hospital and told Albaghdadi of the elevated
potassium level. Verdict form two allowed the jury to find Albaghdadi
negligent for failing to (1) properly interpret the EKGs; (2) examine Homer
in the emergency room; (3) properly diagnose Homer in the emergency
room; (4) direct that Homer be admitted to the hospital as an inpatient;
or (5) properly treat Homer.
Betty’s counsel objected to the instructions claiming the court
should not use two verdict forms because the record established as a
matter of law a patient-physician relationship existed and Albaghdadi
owed Homer a duty of care. He further argued only one verdict form
should be used that listed all the acts of negligence alleged by Betty’s
experts, and then the lawyers could argue the extent of Albaghdadi’s
duty based on the evidence. He also requested the court to consider
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using an interrogatory in the verdict form asking the jury: “Has a
physician-patient relationship been established, yes or no. If yes, go to
the issues of fault.”
The court overruled this objection. Then Albaghdadi moved
in limine to prevent Betty’s counsel from arguing in closing arguments
that Albaghdadi’s on-call status created a duty greater than that
established by the expert testimony. Betty’s counsel stated he believed
Albaghdadi owed a “full-fledge duty” to Homer because of Albaghdadi’s
on-call status, but in light of the court’s ruling on the instructions,
Albaghdadi’s motion was probably correct. The court granted
Albaghdadi’s motion in limine.
The jury returned a verdict by using verdict form one. The first
question on verdict form one asked: “Was the defendant negligent by
failing to properly interpret the electrocardiograms of Homer Schroeder
on July 17, 2001?” The jury answered this question in the negative. By
using verdict form one, the jury found Hinrichs only requested
Albaghdadi to give an interpretation of Homer’s EKGs and did not tell
Albaghdadi of the elevated potassium level. In other words, the jury
determined Albaghdadi’s version of the facts was correct. By answering
the first question in the negative, the jury determined Albaghdadi
properly interpreted the EKGs. The district court entered a judgment in
favor of Albaghdadi.
Betty appealed. We transferred the case to the court of appeals.
The court of appeals reversed the judgment and remanded for a new
trial. Albaghdadi asked for further review, which we granted.
II. Issues.
Betty contends the court improperly instructed the jury for two
reasons. First, she argues the court should have submitted all the
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specifications of negligence instructed upon for the jury to consider,
including an additional specification that Albaghdadi breached his duty
of care by failing to ask Hinrichs questions regarding Homer. Second,
she argues the court’s instructions improperly interfered with the jury’s
fact-finding duties by impermissibly commenting on the evidence.
Betty’s counsel preserved error on the issue of whether the court
should have submitted all the specifications of negligence instructed
upon for the jury to consider and that the instructions improperly
interfered with the jury’s fact-finding duties. However, her counsel did
not object to the instructions for not including a specification that
Albaghdadi was negligent for failing to ask Hinrichs questions. A party is
required to request an additional instruction designed to remedy a
perceived defect when the party claims an instruction does not
completely state the law. State v. Smith, 240 N.W.2d 693, 695 (Iowa
1976). Failure to do so precludes us from determining the issue on
appeal. Poulsen v. Russell, 300 N.W.2d 289, 294 (Iowa 1981). Therefore,
we will not consider Betty’s claim that the court failed to include a
specification of negligence that Albaghdadi was negligent for failing to
ask Hinrichs questions.
III. Analysis.
The trial court has the obligation to instruct the jury on the law
governing the issues it submits. Harrington v. Fortman, 233 Iowa 92,
100–01, 8 N.W.2d 713, 717 (1943); Jakeway v. Allen, 226 Iowa 13, 18,
282 N.W. 374, 377 (1938). For each act of negligence the court submits
to the jury, it must tell the jury the legal duty owed by the defendant. Id.
We look to legislative enactments, judicial decisions, and general legal
principles to establish a legal duty or standard of care. Van Essen v.
McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999).
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Albaghdadi holds himself out as a specialist in cardiology.
Albaghdadi conceded that a patient-physician relationship existed
between himself and Homer. We have established the standard of care a
specialist must use when treating a patient. McGulpin v. Bessmer, 241
Iowa 1119, 1132, 43 N.W.2d 121, 128 (1950). In McGulpin, we expressed
the standard of care as follows:
A physician or surgeon who is held out as a specialist is
required to exercise that degree of skill and care ordinarily
used by similar specialists in like circumstances, having
regard to the existing state of knowledge in medicine and
surgery, not merely the average skill and care of a general
practitioner.
Id. The failure of a physician to follow this standard of care constitutes
negligence. Id.
In a medical negligence case such as this, expert testimony is
required to establish the standard of care and a breach thereof. Sinkey
v. Surgical Assocs., 186 N.W.2d 658, 660 (Iowa 1971). At the close of the
evidence, the court must instruct the jury on the defendant’s duty when
the evidence establishes that duty by a particular set of facts the jury
may reasonably find to exist. State v. Gough, 187 Iowa 363, 366, 174
N.W. 279, 280 (1919).
The expert testimony only generated an issue for the jury to decide
whether Albaghdadi was negligent for failing to (1) properly interpret the
EKGs; (2) examine Homer in the emergency room; (3) properly diagnose
Homer in the emergency room; (4) direct that Homer be admitted to the
hospital as an inpatient; or (5) properly treat Homer, if the jury found
Hinrichs’ version of the conversations with Albaghdadi took place. On
the other hand, if the jury found Albaghdadi’s version took place, the
only issue generated by the expert testimony for the jury to decide was
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whether Albaghdadi was negligent for failing to properly interpret the
EKGs.
At trial and on appeal, Betty’s counsel contends he had a right to
argue Albaghdadi was negligent for failing to (1) properly interpret the
EKGs; (2) examine Homer in the emergency room; (3) properly diagnose
Homer in the emergency room; (4) direct that Homer be admitted to the
hospital as an inpatient; or (5) properly treat Homer, solely on the basis
that Albaghdadi was the on-call cardiologist the evening of July 17. We
disagree. Betty presented no expert testimony stating Albaghdadi was
negligent in those respects solely because he was the on-call cardiologist.
Consequently, the expert testimony did not establish such a duty
existed. Therefore, Betty could not argue the case in that manner.
To prevent Betty’s counsel from arguing the case in a manner not
supported by the expert testimony, the court chose to use two verdict
forms. The jury was to use the first verdict form if it found Hinrichs’
version of the events took place and the second verdict form if it found
Albaghdadi’s version occurred.
Betty contends by using two verdict forms, the court impermissibly
commented on the evidence. Instructions by the court that comment “on
potential factual scenarios in which a standard of care may or may not
have been adhered to” are impermissible comments on the evidence.
Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993). However,
instructions designed to determine a physician’s duty of care do not
constitute an impermissible comment on the evidence. Id.
The fighting factual issue in this case was the substance of the
communication between Albaghdadi and Hinrichs. Betty tried this case
on the theory that the jury would believe Hinrichs’ version of the events.
According to her expert’s testimony, the jury could have found
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Albaghdadi negligent for the five specifications to which they testified if
Hinrichs’ version of the conversation took place.
Albaghdadi tried this case on the theory that the jury would believe
his version of the events. His experts insisted Albaghdadi’s only duty
was to read the EKGs; thus, the jury could only find him negligent if he
read the EKGs in a manner that fell below the standard of care.
Betty and Albaghdadi based their theories of negligence on two
different sets of facts that were mutually exclusive. The parties tried the
case by giving the jury only two alternative ways to decide it. The record
did not allow the jury to incorporate parts of each side’s expert testimony
in deciding this case. The court did not give the verdict forms to the jury
as potential factual scenarios in which a standard of care may or may
not have been adhered to by Albaghdadi. The verdict forms provided the
jury with a road map to determine the standard of care Albaghdadi owed
Homer consistent with the jury’s fact-finding. The verdict forms were
also consistent with the manner in which the parties tried the case.
Therefore, we find the court properly designed the two verdict
forms to allow the jury to determine the applicable standard of care once
it decided the disputed facts. Although there may have been a better way
for the court to instruct the jury, such as using special interrogatories
rather than verdict forms, the court did not impermissibly comment on
the evidence by using these forms.
IV. Disposition.
Because the district court properly instructed the jury on the
specifications of negligence supported by the evidence and designed the
instructions to determine the standard of care Albaghdadi owed Homer,
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we vacate the decision of the court of appeals and affirm the judgment of
the district court.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.