IN THE IOWA DISTRICT COURT FOR FLOYD COUNTY

Transcription

1 IN THE IOWA DISTRICT COURT FOR FLOYD COUNTY PATRICIA SUE JOHNSON, ) Individually, and MARIAH JOHNSON, ) No. LACV Individually, ) ) Plaintiffs, ) ) vs. ) ORDER GRANTING MOTION ) FOR DIRECTED VERDICT DR. DANIEL CHEE-CHUNG CHONG, ) M.D., ) ) Defendant. ) BE IT REMEMBERED that on June 4, 2013, this matter came before the Court for jury trial. Upon a motion for change of venue, and without objection from the Plaintiffs or the Defendant, it was ordered that trial occur in Cerro Gordo County. Trial commenced on June 4, Plaintiffs Patricia Sue Johnson and Mariah Johnson were present, and represented by Attorney Jason Springer. The Defendant, Dr. Daniel Chee-Chung Chong, was present and represented by Attorney Frederick Harris and Attorney Erik Bergland. On June 4, 2013, a jury was selected, sworn, and admonished. Both parties waived a formal record concerning jury selection. Each party presented an opening statement on June 4, Both parties waived a formal record concerning opening statement. However, each party had certain objections to the other s opening statement. A record was made concerning these objections, and the resolution of the same. The Plaintiffs began their presentation of evidence on June 4, 2013, and concluded on June 5, 2013.

2 The Plaintiffs case included testimony from their expert witness, Dr. Samuel Feinberg, M.D. The Plaintiffs rested on June 5, At the conclusion of the Plaintiffs case, a detailed motion for a directed verdict was made on the record by the Defendant. Plaintiffs resisted the motion for a directed verdict. In considering the motion for directed verdict, the Court considered the evidence presented in a light most favorable to the Plaintiffs. The Court took into consideration the total record made by the Plaintiffs, reviewed portions of the record, and considered the trial brief submitted by the Defendant (Court s Exhibit 2). Significantly, it is noted that the Defendant elected not to cross-examine the Plaintiffs expert witness, Dr. Samuel Feinberg, at the close of Dr. Feinberg s direct examination. Thus, the expert opinion testimony of Dr. Feinberg is limited only to what was stated in his direct examination. Upon review of Dr. Feinberg s testimony, and viewing said testimony in a light most favorable to the Plaintiffs, the Court makes the following findings of fact regarding the motion for directed verdict: FINDINGS OF FACT Defendant Dr. Daniel Chee-Chung Chong did not challenge the qualifications of Dr. Samuel Feinberg as an expert witness, or his designation as such. Further, Dr. Samuel Feinberg is a general surgeon, and performs the same types of procedures at issue in this case on a regular basis. On direct exam, Dr. Feinberg was asked by the Plaintiffs how the Defendant, Dr. Daniel Chong, violated the applicable standard of care. The record reflects that Dr. Feinberg testified that the applicable standard of care was violated in only one way, that 2

3 a CT scan should have been done or ordered by the Defendant earlier than it was. There was little to no testimony as to what the applicable standard of care was, or how or why the Defendant s conduct was in violation of the applicable standard of care. Dr. Feinberg did not testify that the perforation of the Plaintiff s small intestine, or the decision to not intubate the Plaintiff at Floyd County Memorial Hospital, were violations of the standard of medical care by Dr. Chong. Further, when questioned about damage to the Plaintiff caused by the violation of standard of care, to a reasonable degree of medical certainty, Dr. Feinberg testified that the Plaintiff was required to stay in St. Mary s Hospital in Rochester, Minnesota, longer than she otherwise would have. He did not testify concerning how much additional time in the hospital was caused by the Defendant s actions. (Again, the Court is reading testimony in light most favorable to the Plaintiffs.) The testimony of Dr. Feinberg did not address any other damages that may have been caused by the Defendant s breach of duty or violation of standard of care. These would include pain, whether or not the second surgery would have been required, lifting restrictions, employment restrictions, or need for physical therapy or other recovery. The Court, on review of Dr. Feinberg s testimony, believes that the record only contains testimony that the Plaintiff s length of stay in the hospital was lengthened by an uncertain amount. Further, there was no record made as to the amount of damages caused by the Plaintiff s lengthened stay in the hospital in Rochester, Minnesota. Plaintiff Mariah Johnson, who was a minor at the time these incidents occurred, brought an action for loss of consortium. Her testimony detailed loss of ability to 3

4 engage in activities with her mother following her mother s release from the hospital in Rochester. However, Dr. Feinberg s testimony as to causation was limited to Plaintiff Patricia Sue Johnson s longer stay in the hospital. He did not tie the prolonged recovery time or any issues regarding the recovery of the Plaintiff Patricia Sue Johnson following her release from the hospital in Rochester to the actions of Dr. Daniel Chong. ANALYSIS To establish a prima facie case of medical malpractice, a plaintiff must submit evidence that shows the applicable standard of care, the violation or breach of the standard of care, and a causal relationship between the violation and the harm allegedly experienced by the plaintiff. Peppmeier v. Murphy, 708 N.W.2d 57, 62 (Iowa 2005). Evidence of the applicable standard of care, and any breach of the applicable standard of care, must be furnished by an expert witness. Kennis v. Mercy Hospital Medical Center, 491 N.W.2d 161, 165 (Iowa 1992). Causal connection is essentially a matter which must be founded upon expert evidence. McCleary v. Wirtz, 222 N.W.2d 409, 413 (Iowa 1974). Common knowledge and everyday experience would not suffice to permit a layman s expression of opinion as to whether a medical provider s alleged negligence was a substantial factor in bringing about the complained of result. Highly technical questions of diagnosis and causation which lie beyond the understanding of a lay person require introduction of expert testimony, see Barnes v. Bovenmyer, 122 N.W.2d 312, 317 (Iowa 1963). The plaintiff must produce expert testimony which first establishes the applicable standard of care, demonstrates a breach of that standard of care, and demonstrates the 4

5 causal connection between any breach of the standard of care and the Plaintiffs claimed damages. Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). The plaintiff bears the burden in establishing every element of a prima facie case, including causation, by a preponderance of the evidence. Oswald, 453 N.W.2d at 635. Medical testimony that it is possible that something could have or might have caused a subsequent condition or disability does not constitute a preponderance of the evidence and is insufficient to establish a requisite causal connection. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 170 (Iowa 1960). The mere unsuccessful result of a treatment by a physician cannot, of itself, produce a liability on the part of the practitioner. The mere fact that full recovery does not result or that medical treatment is not entirely successful does not mean that the defendant was negligent or at fault. Novak Heating and Air Conditioning v. Carrier Corp., 622 N.W.2d 495, 497 (Iowa 2001). The Court further adopts and incorporates by reference other case law referred to in the Defendant s trial brief (Court s Exhibit 2). The Court further adopts and incorporates by reference findings and analysis made on the record at the conclusion of trial. Even in looking at the evidence in a light most favorable to the Plaintiffs in this matter, it would have been nearly impossible to instruct the jury as to how to determine damages, given the very limited and narrow scope of the Plaintiffs expert witness testimony as to breach of standard of care and causation. No evidence was placed in the record as to any possible monetary damages caused by the length of stay in the hospital. There was no evidence or testimony in the record concerning a dollar amount of damages which have not been paid by Plaintiff s health insurance or qualifying 5

6 benefit programs. Iowa Code Section precludes Plaintiff from recovering past medical expenses paid by health insurance, or for any future medical bills. CONCLUSIONS OF LAW AND RULING The Court finds and concludes that, even when viewing the evidence in a light most favorable to the Plaintiffs, the record is not sufficient to establish a prima facie case of medical malpractice or establish damages, sufficient so that the matter may be presented to a jury. IT IS THEREFORE ORDERED that the Defendant s motion for directed verdict be and hereby is granted, and that this matter is dismissed. Costs are taxed to the Plaintiffs. Dated: June 13, Court reporter ed copies to: Attorney Jason Springer Attorney Frederick Harris Attorney Erik Bergland GREGG R. ROSENBLADT District Court Judge 6