Carter v. Genesis Health System

IN THE COURT OF APPEALS OF IOWA
No. 17-0045
Filed December 20, 2017
ALBERT CARTER,
Plaintiff-Appellant,
vs.
GENESIS HEALTH SYSTEM d/b/a GENESIS MEDICAL CENTER,
Defendant-Appellee.
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Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.
Albert Carter appeals the district court’s ruling granting summary judgment
in favor of Genesis Health System d/b/a Genesis Medical Center on his medical
malpractice action. AFFIRMED.
William J. Bribriesco of Bribriesco Law Firm, P.L.L.C., Bettendorf, for
appellant.
Diane M. Reinsch of Lane & Waterman L.L.P., Davenport, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.
Albert Carter sued Genesis Medical Center for negligence in connection
with a nurse’s insertion of an indwelling catheter and the subsequent erosion of his
penile implant. Genesis moved for summary judgment. Carter conceded the
motion was appropriate on all but one of his claims: whether the nurse’s failure to
consult a physician about the use of a condom catheter instead of an indwelling
catheter amounted to negligence. The district court granted Genesis’ motion on
that claim after concluding Carter lacked a causation expert. See Kennis v. Mercy
Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992) (noting in a medical
malpractice action, a “plaintiff must show evidence which establishes the
applicable standard of care, demonstrate this standard has been violated, and
develop a causal relationship between the violation and the alleged harm”); see
also Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (“Expert
testimony is nearly always required to establish each of these elements . . . .
[P]roximate cause, like the other elements, cannot be based upon mere
speculation.”). Carter appealed.
“In reviewing a summary judgment in a medical malpractice action, the ‘task
is to determine whether any evidence in the summary judgment record enables
plaintiffs to establish the applicable standards of care, and defendant’s breach of
those standards.’” Kennis, 491 N.W.2d at 164 (citation omitted). Summary
judgment is appropriate “when the party can demonstrate that the proof of the other
party is deficient as to a material element of that party’s case.” Thompson v.
Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000); see also Welte
v. Bello, 482 N.W.2d 437, 440 (Iowa 1992) (“If expert testimony is required to
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establish general negligence or the foundational facts and expert testimony is
unavailable, then summary judgment is appropriate.”); Oswald v. LeGrand, 453
N.W.2d 634, 635 (Iowa 1990) (stating “where plaintiffs are limited in the
presentation of expert testimony, the issue becomes not whether there
was negligence in the actions of the defendant but whether there was evidence
upon which liability could be found”).
Carter does not argue a causation expert was unnecessary. See Kennis
491 N.W.2d at 165 (stating negligence could be established in three ways,
including “through expert testimony” or “through evidence showing the [healthcare
professional’s] lack of care so obvious as to be within comprehension of a”
layperson). To the contrary, he named and proffered the opinions of two experts.
In his view, these experts generated an issue of material fact on the element of
causation. Carter points to a report of his nurse expert, who opined “there was a
breach in the standard of care when the patient condition and the potential for
likelihood of penile implant complication were not addressed by the nursing and
physician staff of Genesis Medical Center.” He also cites the same expert’s
deposition testimony opining the standard of care required the nurse, who inserted
the indwelling catheter, to “have [a] conversation with the physician” about the use
of a condom catheter instead of an indwelling catheter. Finally, he refers to the
deposition testimony of his physician expert, who opined, “[I]f [Carter] had not had
an indwelling catheter, he probably would not have had a penile—or an erosion of
his prosthesis, so in that sense, it was probably a contributing cause.” Based on
these portions of the summary judgment record, Carter contends “an inference can
be drawn that if a discussion had occurred between [the] nurse . . . and the ordering
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physician regarding condom v. indwelling catheter; the ordering physician would
have used a condom catheter.”
The district court concluded this expert testimony failed to establish
causation. The court conceded Carter had “expert testimony that [the nurse]
breached the standard of care in not questioning the order” but stated there was
no opinion that “the failure to question the order caused the penile erosion.” The
court explained:
Plaintiff’s claim fails because a jury would have to infer that when [the
nurse] asked the ordering physician if a condom catheter was
required, that the physician would have said yes and changed her
order. If the ordering physician does not change the order, then [the
nurse’s] failure to question the order would not have caused
Plaintiff’s injury, because an indwelling catheter would have been
placed in spite of [the nurse] questioning the order. In other words,
[the physician’s] testimony on causation relates to the placement of
an indwelling catheter and not to the factual circumstance of [the
nurse’s] failure to ask the ordering physician if a condom catheter
should be used.
The district court did not err in reaching this conclusion. See McKee v. Isle
of Capri Casinos, Inc., 864 N.W.2d 518, 525 (Iowa 2015) (setting forth standard of
review). Without expert testimony that the claimed breach of the standard of care
was the cause of his harm, Carter could not establish a prima facie case of medical
negligence. See Oswald, 453 N.W.2d at 635.
We affirm the district court’s summary judgment ruling in favor of Genesis.
AFFIRMED.