Lauren Sherrick v. Obstetrics & Gynecology Specialists, P.C. ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0939
Filed November 7, 2018
LAUREN SHERRICK,
Plaintiff-Appellant,
vs.
OBSTETRICS & GYNECOLOGY SPECIALISTS, P.C.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
A patient appeals a malpractice verdict in favor of her medical providers,
claiming two evidentiary errors by the district court. AFFIRMED.
James K. Weston II of Tom Riley Law Firm, Iowa City, for appellant.
Robert V.P. Waterman, Jr. and Trista M. Beise (until withdrawal) of Lane &
Waterman, LLP, Davenport, for appellee.
Heard by Tabor, P.J., and Mullins and Bower, JJ.
2
TABOR, Presiding Judge.
This appeal arises from Lauren Sherrick’s medical malpractice suit against
Obstetrics & Gynecology Specialists, P.C.1 Following a five-day trial, the jury
returned a verdict finding the OB/GYN clinic was not negligent in treating Sherrick.
On appeal, Sherrick challenges two evidentiary rulings from that trial. We find no
abuse of discretion in the first ruling and no prejudice from the second. As a result,
we affirm the verdict.
I. Facts and Prior Proceedings
In July 2013, Sherrick began receiving prenatal care from midwives at the
OB/GYN clinic in Davenport. Ten weeks into her pregnancy, Sherrick visited the
OB/GYN clinic for an ultrasound appointment. The sonographer performed a
transabdominal ultrasound.2 Dr. Kenneth Naylor interpreted Sherrick’s ultrasound
following her appointment and reported no apparent abnormalities.
The next month, Sherrick returned to the OB/GYN clinic twice—complaining
of nausea, vomiting, fatigue, inability to urinate, and weight loss. A midwife
prescribed medication for Sherrick’s symptoms. At first Sherrick reported
improvement. But her condition quickly deteriorated. Sensing “something wasn’t
right,” Sherrick sought emergency care at Genesis Medical Center in early
September 2013.
Genesis admitted Sherrick for overnight monitoring. She underwent testing
and received intravenous (IV) fluids and medication. Dr. Jessica Sandmeier
1
For brevity’s sake, we will refer to the defendant as the OB/GYN clinic.
2
Dr. Margaret Smollen testified a transabdominal ultrasound involves using a transducer
on the woman’s abdomen and is “much more comfortable than a transvaginal ultrasound”
which “involves inserting a large probe into the woman’s vagina.”
3
oversaw Sherrick’s treatment throughout the night. When Dr. Carolyn Martin
arrived for her shift the following morning, she reviewed Sherrick’s chart and
conferred with Dr. Sandmeier. The two doctors believed Sherrick might be
suffering from HELLP3 syndrome. They discussed the risk of a partial molar
pregnancy.4 Dr. Martin agreed to review the results of an ultrasound scheduled
that morning and follow up with Sherrick accordingly.
Later that morning, Dr. Martin learned Sherrick’s ultrasound revealed a
partial molar pregnancy. Dr. Martin shared the difficult news with Sherrick. The
doctor explained her pregnancy was not “viable” and had to be terminated for her
health. After Dr. Martin outlined her treatment options, Sherrick chose transfer to
University of Iowa Hospitals and Clinics (UIHC). An ambulance transported
Sherrick there. Upon arrival, Sherrick met with her treating physician, Dr. Abbey
Hardy-Fairbanks. After the doctor terminated her pregnancy, Sherrick continued
to receive care at UIHC for three days.
Believing the OB/GYN clinic was negligent in failing to timely diagnose her
partial molar pregnancy, Sherrick filed a malpractice lawsuit in July 2015. Sherrick
focused on the OB/GYN clinic’s decision to perform a transabdominal rather than
a transvaginal ultrasound at the ten-week mark of her pregnancy and its failure to
conduct more frequent urinalysis during August 2013. Sherrick alleged a
transvaginal ultrasound would have revealed fetal abnormalities, increasing the
3
Midwife Caron Jones testified HELLP stands for hemolysis, elevated liver enzymes, low
platelets count “a condition that can be set off by an abnormal pregnancy.” Dr. Martin
described HELLP syndrome as “a more severe variant of preeclampsia.” The doctor
testified it only occurs during pregnancy and can affect kidney and liver functions.
4
Sherrick’s appellate brief describes a partial molar pregnancy as “a genetically abnormal
pregnancy that cannot result in viable birth, but has significant physiological effects on the
mother.”
4
probability of an earlier diagnosis. And urinalysis would have alerted OB/GYN
physicians to the presence of ketones, a sign of hyperemesis that points to a
potential partial molar pregnancy. Sherrick asserted had the OB/GYN clinic
treated her in accordance with the standard of care, medical providers would have
discovered her condition earlier, and the resulting physiological effects would not
have been as significant.
After Sherrick sued, the parties timely disclosed their expert witnesses.
Sherrick named midwife Caron W. Jones as an expert, and added:
Plaintiff intends to rely on opinions expressed by her physicians at
[UIHC]. These witnesses are not retained experts, but are Plaintiff’s
treating physicians and will offer opinions formed in the course of
their treatment of Plaintiff. In addition, Plaintiff reserves the right to
utilize additional treating health care providers who may or will testify
regarding issues of informed consent, standard of care, causation
and damages.
The OB/GYN clinic designated several expert witnesses: Drs. Sandmeier,
Margaret Smollen, Kenneth Naylor, and Carolyn Martin, as well as certified nurse
midwives Pam Thorpe and Cindy Ramsay.
The parties conducted depositions three months before trial. While
deposing treating physician Dr. Hardy-Fairbanks, Sherrick’s counsel asked:
“Again, either in your practice or in your teaching responsibilities, are there
differences between—you mentioned transvaginal or transabdominal ultrasound—
different times when you would use those different procedures?”
Defense counsel objected on relevance grounds.5 Dr. Hardy-Fairbanks
answered: “The general practice in early, early pregnancy, we use vaginal
5
Evidence is relevant if it has any tendency to make a fact of consequence in the action
more or less probable than it would be without the evidence. Iowa R. Evid. 5.401.
5
ultrasound just because logistically, the uterus is in a position that makes it harder
for the ultrasound waves to get there, and then when the uterus is bigger, we use
transabdominal, in general.”
The jury trial started in mid-May 2017. Sherrick presented five witnesses,
including Dr. Hardy-Fairbanks, through deposition testimony. Before the jury
heard the evidence, the district court asked if “[e]ither party ha[d] anything further
they wish[ed] to say in regards to the objections lodged” during the doctor’s
deposition.
Defense counsel repeated the relevance objection, explaining he “objected
on relevance for the reason that [the different times to use transvaginal or
transabdominal ultrasounds] wasn’t an issue that presented as it relates to
[P]laintiff’s care at [UIHC].” Sherrick’s attorney maintained the ultrasound opinion
was relevant to the plaintiff’s theory of the case and the treating physician’s opinion
was based on her education and experience.
Defense counsel pounced on the difference between a designated expert
and a treating physician like Dr. Hardy-Fairbanks. In the defense view, the plaintiff
had to disclose the treating physician’s expert opinion if it fell outside the opinions
she developed as a result of the treatment in this particular case. Defense counsel
argued: “In this case the objection to relevance is applicable because [the
ultrasound opinion] was totally irrelevant to her care of this patient at the University
Hospitals.”
The district court sustained the objection. The parties read the deposition
of Dr. Hardy-Fairbanks into the record for the jury, omitting the portion of her
6
testimony describing the “general practice” of using vaginal ultrasounds in “early,
early pregnancy.”
After Sherrick’s case, the defense called Nurse Ramsay as an expert
witness. Sherrick’s attorney objected when defense counsel asked about the
timing of Sherrick’s urinalysis during her overnight stay at Genesis. Sherrick’s
counsel asserted the nurse’s testimony was “beyond the scope of the disclosed
opinions of this witness.” The district court excused the jury and heard arguments
on the issue.
Sherrick’s counsel insisted the testimony was inadmissible because
defense pretrial disclosures did not say Ramsay would be “interpreting specifics
regarding the labs at Genesis Hospital.”
Defense counsel responded Ramsay’s testimony was proper because the
expert disclosures, plus her deposition testimony, made clear her opinion would
include the standard of care in urinalysis and whether ketones remain in the urine
if an individual has hyperemesis. Defense counsel argued,
I think this is pretty clearly within the fair scope of her pretrial
disclosures to ask her about ketones, electrolytes and the other signs
relating to lab work done at [the OB/GYN clinic] are inconsistent with
plaintiff’s theory that she was suffering from hyperemesis or
dehydration at the time of her admission.
The district court overruled Sherrick’s objection, and counsel for the
OB/GYN clinic questioned Nurse Ramsay about the timing of Sherrick’s urinalysis
at Genesis.
After four days of hearing evidence, the jury returned a verdict finding the
OB/GYN clinic was not negligent. Seeking a new trial, Sherrick appeals two
7
evidentiary rulings—the first excluding a portion of Dr. Hardy-Fairbanks’s
testimony and the second admitting all of Nurse Ramsay’s testimony.
II. Scope and Standard of Review
We review evidentiary rulings for an abuse of discretion. Anderson v.
Khanna, 913 N.W.2d 526, 535 (Iowa 2018). A district court abuses its discretion
when its ruling rests on unreasonable or untenable grounds. Id. at 536. Grounds
are unreasonable or untenable when “based on an erroneous application of the
law.” In re Tr. No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).
III. Analysis
A. Testimony of Dr. Hardy-Fairbanks
Sherrick first attacks the district court’s exclusion of an opinion from
Dr. Hardy-Fairbanks on the standard of care for performing ultrasounds early in
pregnancy. Dr. Hardy-Fairbanks treated Sherrick at UIHC, but Sherrick did not
certify her as expert witness under Iowa Code section 668.11.
In her deposition, the doctor responded to questions from Sherrick’s
counsel about the use of ultrasound to diagnose partial molar pregnancies.
Counsel asked when the doctor would use transvaginal versus transabdominal
ultrasound “either in her practice or teaching responsibilities.” Over the relevance
objection, Dr. Hardy-Fairbanks responded: “[T]he general practice in early, early
pregnancy” is to use “vaginal ultrasound” and when the “uterus is bigger, we use
transabdominal, in general.”
After hearing the parties’ expanded arguments at trial, the district court
excluded that one-line response from the treating physician’s deposition. On
appeal, Sherrick contends the testimony was relevant in showing the reasonable
8
standard of care in early pregnancy.6 She also argues the treating physician could
opine on the standard of care, without being disclosed as an expert under Iowa
Rule of Civil Procedure 1.508, if the opinion related to the treatment of the patient.
See Hansen v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 484 (Iowa 2004)
(allowing expert testimony about causation without disclosure because doctor
formed his opinion “as a treater”).
When the district court sustains an objection during trial, we will uphold the
ruling “if the evidence could be held inadmissible on any theory, whether urged in
the objection or not.” Porter v. Iowa Power & Light Co., 217 N.W.2d 221, 231 (Iowa
1974); see also DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).
Here, the ultrasound opinion offered by Dr. Hardy-Fairbanks was
inadmissible because it did not relate to the care she provided Sherrick upon her
arrival at UIHC. Unlike the treating physician in Hansen, Dr. Hardy-Fairbanks was
not offering an opinion on causation developed during patient care. See 686
N.W.2d at 482. And the remainder of her deposition did not show she formed her
view on the use of ultrasounds while treating Sherrick.7 The treating physician’s
opinion on the standard of care was expert testimony, and thus improper absent
6
Sherrick’s malpractice action focused on whether the OB/GYN clinic was negligent in
failing to diagnose her partial molar pregnancy at an earlier date. A vital question was the
propriety of performing a transabdominal rather than a transvaginal ultrasound at her ten-
week appointment. The standard of care in early-pregnancy ultrasound practices was “of
consequence” in Sherrick’s suit. See Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d
383, 401 (Iowa 2017) (“The traditional elements of a medical negligence action are (1) an
applicable standard of care, (2) a violation of this standard, and (3) a causal relationship
between the violation and injury sustained.” (citing Phillips v. Covenant Clinic, 625 N.W.2d
714, 718 (Iowa 2001)). Thus, Dr. Hardy-Fairbanks’s excluded opinion was relevant to a
consequential fact.
7
As defense counsel points out on appeal, Sherrick received treatment from Dr. Hardy-
Fairbanks more than seven weeks after the OB/GYN clinic performed the transabdominal
ultrasound at issue.
9
compliance with the required disclosures.8 See id. at 482; see also 8 Tom Riley &
Peter C. Riley, Iowa Practice Series: Civil Litigation Handbook § 9:6 (2018) (“Had
the treating physician opined as to the standard of care of a [d]efendant, he would
have to be designated under § 668.11 since such an opinion would not have been
included in his care of the [p]laintiff.”). The district court did not abuse its discretion
in excluding one sentence from the deposition of Dr. Hardy-Fairbanks.
B. Testimony of Nurse Ramsay
Sherrick next challenges the admission of testimony from an expert witness
for the OB/GYN clinic. Sherrick maintains the district court should excluded Nurse
Ramsay’s testimony about the timing of Sherrick’s urinalysis based on the expert’s
review of the Genesis records because that interpretation exceeded the scope of
the OB/GYN clinic’s pretrial disclosure. Nurse Ramsay testified she would have
expected Sherrick’s urine to show ketones at the hospital if the patient had been
suffering from hyperemesis at the time of her clinic appointment a few days earlier.9
But the Genesis test showed Sherrick’s urine was negative for ketones. From
these facts, the defense argued even if the clinic had obtained and tested
Sherrick’s urine earlier, “that would not have led to an earlier diagnosis of a partial
molar pregnancy or changed her ultimate outcome.”
8
In an alternative argument, Sherrick suggests the fact that Dr. Hardy-Fairbanks gave a
deposition three months before trial eliminates any surprise to the opposing party,
negating the need for disclosure. But our supreme court rejected a similar argument in
Cox v. Jones, 470 N.W.2d 23, 25 (Iowa 1991). Sherrick also points to the “liberal view” of
Iowa courts on the admissibility of expert testimony. See Quad City Bank & Trust v. Jim
Kircher & Assoc., 804 N.W.2d 83, 92 (Iowa 2011). But this principle does not apply
because Sherrick did not designate Dr. Hardy-Fairbanks as an expert.
9
Sherrick’s expert Caron Jones testified she was concerned that the OB/GYN clinic did
not obtain a urine sample from Sherrick to determine whether she was dehydrated and
“spilling ketones.”
10
Sherrick’s counsel objected when defense counsel asked Ramsay about
the timing of the urine test compared to the administration of IV fluids at Genesis.
The district court allowed Ramsay to testify Genesis staff gave Sherrick fluids “after
drawing her labs.” Sherrick now contends this testimony was prejudicial because
it cast the hospital tests as accurate. And more to the point, the jury was more
likely to credit the expert’s opinion that even if the OB/GYN clinic had regularly
collected and tested urine samples during Sherrick’s appointments, they would not
have revealed her condition. On this basis, Sherrick asks for a new trial.
We cannot predicate error on a ruling admitting evidence “unless a
substantial right of the party is affected.” Scott v. Dutton-Lainson Co., 774 N.W.2d
501, 503 (quoting Iowa R. Evid. 5.103(a)). If “erroneously admitted evidence is
merely cumulative” of evidence already in the record, it is not prejudicial. 6305
S.W. 9th Street, L.L.C. v. Sons of Geil, L.L.C., No. 06-1381, 2007 WL 3376834, at
*4 (Iowa Ct. App. Nov. 15, 2007) (citing Vasconez v. Mills, 651 N.W.2d 48, 57
(Iowa 2002)).
We are unconvinced by Sherrick’s claim of prejudice. Assuming without
deciding the district court abused its discretion in allowing Nurse Ramsey to
interpret the Genesis records, Sherrick cannot show harm to her case from that
testimony. See State v. Jones, No. 10-0765, 2011 WL 238644, at *3–4 (Iowa Ct.
App. Jan. 20, 2011) (bypassing determination on propriety of exclusion and finding
any error was harmless). The nurse’s reference to the chronology in Sherrick’s
chart was cumulative to other witnesses sharing those same facts with the jury.
For example, the court accepted the Genesis records as exhibits. And Dr.
Martin, one of Sherrick’s treating physicians at Genesis, recited the timing of the
11
tests performed and their results. What’s more, Sherrick’s counsel cross-
examined Nurse Ramsay and apprised the jury that she lacked personal
knowledge of the accuracy of the Genesis records. Because Nurse Ramsay’s
testimony about the Genesis records broke no new ground, any error in its
admission was harmless. See 6305 S.W. 9th Street, 2007 WL 3376834, at *4.
To recap, because the district court properly excluded a standard-of-care
opinion from Dr. Hardy-Fairbanks and no prejudice resulted from allowing Nurse
Ramsay to discuss the Genesis records, we affirm the jury’s verdict finding no
negligence.
AFFIRMED.