In re Estate of Anderson v. Prasad ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0479
Filed April 26, 2023
ESTATE OF STEVEN ANDERSON, by its Executor DEBRA ANDERSON,
Individually,
Plaintiff-Appellant,
vs.
PRAVEEN PRASAD, M.D., and IOWA SURGERY CENTER, P.C.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
The Estate of Steven Anderson appeals from an adverse judgment in this
medical malpractice case against Praveen Prasad and the Iowa Surgery Center.
AFFIRMED.
Jim Duff and Thomas J. Duff of Duff Law Firm, P.L.C., West Des Moines,
for appellant.
Cathy S. Trent-Vilim and Frederick T. Harris of Lamson Dugan & Murray
LLP, West Des Moines, for appellees.
Heard by Bower, C.J., and Ahlers and Buller, JJ.
2
BOWER, Chief Judge.
The Estate of Steven Anderson (“Estate”) appeals from an adverse
judgment in this medical malpractice case against Praveen Prasad, M.D., and the
Iowa Surgery Center, P.C., claiming the district court abused its discretion in
allowing Dr. Prasad to testify regarding the standard of care when he was not
designated as an expert under Iowa Code section 668.11 (2019). Finding no error
of law or abuse of the court’s discretion in ruling on evidentiary matters, we affirm.
I. Background Facts and Proceedings.
Steven Anderson went to the hospital complaining of abdominal pain on
Friday, August 18, 2017. He was jaundiced. Medical personnel determined
Anderson had a gallstone blocking his common bile duct and an infection. On
August 19, Dr. Verma, a gastroenterologist, performed an endoscopic retrograde
cholangiopancreatogram (ERCP) and was able to break some particles off the
large stone in the duct and remove them.1 But, the duct remained blocked, and a
stent was inserted to allow the bile (and pus) to drain to the intestines.2
On Monday, August 21, Dr. Prasad, a general surgeon employed by Iowa
Surgery Center, performed a laparoscopic cholecystectomy, that is, gallbladder
removal surgery.3 Anderson died from complications on September 5.
1 The ERCP involves “put[ting] a scope down into the stomach, beginning part of
the duodenum,” to inject dye into the bile duct. The doctor will “either crush the
stone, using baskets to pull it out, or sometimes they laser it.”
2 Dr. Verma noted the extensive dilation of the duct and a retained gall stone.
3 Rather than an “open procedure” where the surgeon makes a large cut and
performs the surgery in the opening, laparoscopic surgery involves making several
small cuts through which surgical instruments and a camera are inserted into the
patient. The camera is hooked to a monitor allowing the surgeon to see and
perform the surgery.
3
The Estate filed suit against Dr. Prasad and the Iowa Surgery Center
(collectively, the “defendants”), alleging Dr. Prasad was negligent in performing the
gallbladder removal, which caused Anderson’s death. Both sides designated
experts pursuant to section 668.11; the Estate named Dr. Samuel Feinberg, and
the defendants designated Dr. Paul Severson as their medical expert on standard
of care.4
Dr. Prasad denied the following statements sent as requests for admissions:
• “during Plaintiff-decedent [Steven] Anderson’s August 21,
2017 cholecystectomy procedure Defendant Prasad violated
the standard of care of a general surgeon”;
• “the ligation of a patient’s right hepatic artery during a
cholecystectomy violates the standard of care for a general
surgeon”;
• “the failure to identify the ligation of a patient’s right hepatic
artery during a cholecystectomy violates the standard of care
for a general surgeon”;
• “the stapling of a patient’s common bile duct during a
cholecystectomy violates the standard of care for a general
surgeon”;
• “the failure to identify the stapling of a patient’s common bile
duct during a cholecystectomy violates the standard of care
for a general surgeon”;
• “the ligation of Plaintiff-decedent [Steven] Anderson’s right
hepatic artery and stapling of Plaintiff-decedent [Steven]
Anderson’s common bile duct—which occurred during
Plaintiff-decedent Stephen Anderson’s August 21, 2017
cholecystectomy procedure—caused Plaintiff-decedent
[Steven] Anderson’s death.”
The parties filed motions in limine about the scope of Dr. Prasad’s
testimony. The court concluded Dr. Prasad “may testify as to the medical facts
4 We do note that a released-defendant designated “all of Mr. Anderson’s
healthcare providers, including all physicians, therapists, physician assistants and
nurses, and all other health care providers identified in the records concerning
Steven Anderson, as potential expert witnesses concerning their diagnosis,
treatment, opinions on causation reached in the course of treating the patient, and
nature extent and scope of alleged damages.”
4
regarding his care of Mr. Anderson during the laparoscopic surgery and that what
he was doing was appropriate based on his opinions associated with treating his
patient, Mr. Anderson.”
At trial, the Estate’s expert, Dr. Feinberg, testified Dr. Prasad violated the
standard of care during Anderson’s gallbladder removal surgery, which caused
Anderson’s death. Dr. Feinberg explained,
What you’re trying to do is, when you’re doing the surgery, is get in
the right area so that you can dissect out the structures so that you
see the cystic duct and cystic artery. The whole object of the surgery
is protect the common bile duct, protect the common hepatic duct.
See only two structures that go to the gallbladder. You can safely
remove it.
Dr. Feinberg testified Dr. Prasad clipped the right hepatic artery thinking it was the
cystic artery.
Q. And I think they used the word they “felt” it was the cystic
artery.[5] When you’re in surgeries, do you just feel that things might
be something without exploring more? A. Well, especially with
inflammation and you haven’t gotten the anatomy down, no. The
answer would be you want to see exactly what you’re cutting.
Dr. Feinberg testified Dr. Prasad’s “failure to appreciate the anatomy” was a
violation of the standard of care; “The whole object of the cholangiogram is to orient
you so that you know exactly where you are.”
Q. I’ll ask another question here, Doctor. Dr. Prasad was—
what sort of a procedure as far as the cholecystectomy—what type
of cholecystectomy was he trying to do? A. He was trying to remove
a subtotal or two-thirds, three-quarters of the gallbladder so that he
would be safe to not injure the common hepatic duct or the hepatic
artery.
Q. So he’s just trying to do a partial removal? A. That is
correct.
5 This description is from the postoperative report by Dr. Prasad and the assisting
fifth-year resident, Dr. Nechtow.
5
Q. He’s trying to do a partial removal. What did he actually
remove? A. He removed the total gallbladder with the cystic duct.
Q. Does that violate the standard of care? A. If his object was
to remove the gallbladder itself, then no. If he’s only trying to remove
part of the gallbladder and ends up removing the whole gallbladder,
then yes.
Dr. Severson testified for the defense that Anderson had Mirizzi syndrome,
“a very unusual condition” where the “patient [is] infected in the bile ducts due to
obstruction of a stone and develop[s] what we call ascending cholangitis—that’s
an infection where pus gets in the bile duct—it’s an extremely dangerous
infection.”6 Dr. Severson testified there are four stages of Mirizzi syndrome. In
stage four, a stone that has been trapped in the common bile duct ulcerates
through the wall of the duct. In Dr. Severson’s opinion, Anderson was Mirizzi stage
four.
Dr. Severson testified the interoperative cholangiogram was done “to try to
delineate the anatomy,” which was difficult because “there was so much fibrous
scarring.” He stated, “The Mirizzi syndrome has created such dense scar tissue
in the hepatocystic triangle that it’s impossible to dissect. That is the definition of
Mirizzi syndrome.” A second interoperative cholangiogram was necessary—which
happens “[v]ery rarely.” But Dr. Prasad “needed to be absolutely sure about what
the anatomy showed and where they could safely divide the infundibulum.”
Dr. Severson took issue with Dr. Feinberg’s interpretation of the
cholangiogram:
6 Dr. Severson testified, “The average surgeon does not [know about Mirizzi
syndrome] because the incident is so low.” The condition is “not well understood
by the medical community” because it is seen in “[o]ne out of a thousand
laparoscopic cholecystectomy cases.”
6
Q. Do you have an understanding of where Dr. Feinberg
thinks the dye first comes out? Or where the Kumar clamp is, let’s
start there. A. He thinks it was—he says that this clamp was across
the common hepatic duct and the dye was directly injected into the
common hepatic duct.
Q. How would it be directly injected if the needle is down in
the cystic duct? A. It’s impossible. There’s no—the Kumar only has
one needle that always comes out right here (indicating). It can only
squirt out here (indicating). It can’t squirt out here (indicating). That’s
the nature of the Kumar clamp.
Q. So if we played this one more time, when we had our eyes
up on the end of the Kumar clamp, are we going to see dye coming
out the end of that Kumar clamp and flowing in as Dr. Feinberg
describes? A. Well, if he were somehow correct, which he couldn’t
be because there’s no—you can always see the needle. That’s why
needles are metal. You can always see them. There’s no needle up
here and there never is a Kumar clamp. They always come out here
indicating). You would have dye coming in like this and it would
come backwards (indicating).
Q. And does it? A. That’s what he says he saw. No, that’s
not the way it works.
Dr. Severson testified this three-hour surgery involved “great difficulties,
many maneuvers, lots of steps and techniques trying to identify the anatomy and
safely perform the surgery.”
Q. And do you have an opinion as to whether those steps and
techniques were appropriate? A. Yes.
Q. And why? What is that opinion? A. The opinion is that
those were the appropriate steps.
Q. And why? A. Well, if you can’t have a critical view of safety
achieved because the area that we’re supposed to start the
dissection in, the triangle or the hepatocystic triangle—and that’s
impossible because it’s all fused and it’s scarred in—then the
infundibular technique is very good and the recommended way for
surgeons to be able to continue the operation and safely go around
the infundibulum. Around the infundibulum, there really should be
no major structures that can get the surgeon into trouble.
Dr. Severson stated Dr. Prasad performed a different surgery than originally
planned, referring to it as a “bailout procedure,” that is, “we just have to try to do
our best and get out of the operating room today without trying to injure anything
7
serious.” He stated the performance of a partial gallbladder removal “allows the
doctor to take out the majority of the gallbladder, hopefully control the infection and
the sepsis, and get the majority of the stones out. And you try to get the patient to
survive the syndrome.”
Q. Was it appropriate for him to get those two
cholangiograms? A. Yes, it was very appropriate.
Q. And was it appropriate for Dr. Prasad to—was it
appropriate to think that there was a long cystic duct there and be
able to move your stapler closer to the common duct? A. There was
a long cystic duct there. And I think it would have been very expected
by most surgeons to be able to have leeway, to be able to move the
stapler toward the duct.
Q. And is that what a reasonable surgeon would do in this
circumstance? A. Yes.
With respect to the injury to the hepatic artery, Dr. Severson opined:
. . . [I]t’s two potential things. . . . In Dr. Prasad’s report,
there’s a mention of a clipping of what they thought was the artery.
And I presume that it was somewhere in the normal anatomy,
somewhere in here, and that they thought that it was the cystic artery.
And it could have been right hepatic artery that was clipped at that
time.
Or, number two, it could have been just absolutely plastered
and drawn up into the scar tissue mass, which is what happens one
out of four times. That’s the other possibility. The stapler came right
across it also. With the same injury that took out those two ducts,
could have been the right hepatic artery fused to the back of it, which
they couldn’t see.
Q. Okay. And why can’t they see that? A. It’s all scarred in.
It’s just—you can’t separate the structures. They are all encased by
scar tissue.
Q. Does the standard of care require the surgeon to try to
separate them, to dig down into those—A. No.
Q. Why not? A. Number one, it’s dangerous. Number two,
you can’t. It’s impossible. It’s fused. It’s all fused together.
Dr. Severson also testified it was not a violation of the standard of care to
not immediately know a complication occurred during surgery.
8
Dr. Prasad testified, outlining how Anderson came to be his patient and why
Anderson fell into the minority of those whose laparoscopic surgery could not be
done on an outpatient basis. He explained the stones in Anderson’s gallbladder
necessitated its removal and if the gallbladder remained it would be a persistent
source of infection and could lead to sepsis. Dr. Prasad requested Dr. Nechtow
assist him with the procedure. He testified about the problems they encountered
doing the surgery, including significant inflammation of the gallbladder that had
caused the gallbladder to adhere to other structures. Dr. Prasad testified that when
performing a laparoscopic cholecystectomy, it is preferred that the surgeon
achieve a “critical view of safety,” that is, freeing the gallbladder from all
surrounding tissue to obtain a visual of two and only two structures attached to the
gallbladder, the cystic duct and cystic artery, which need to be dissected before
you remove the gallbladder. If not able to achieve the critical view of safety, the
surgeon uses the infundibular technique. He testified he could not achieve a
critical view of safety in Anderson’s surgery and attempted the infundibular
technique. Due to the severity of Anderson’s inflammation, adhesions, and scar
tissue, Dr. Prasad performed two cholangiograms to orient the surgery.
Dr. Prasad testified the gallbladder was removed from the abdominal cavity
using an EndoCatch retrieval bag, which was then secured and removed. 7 The
following exchange occurred:
Q. Now, once you get it in this endo bag and it’s outside of
Mr. Anderson, what happens to the endo bag at that point? A. So
we hand it over to our scrub nurse who is working with us, and she
7This EndoCatch bag is inserted through one of the ports and is “like a fishnet” in
which the surgeon places the dissected gallbladder. The bag is closed off by
pulling a thread and then removed from the body and sent to the lab.
9
gives it to the—there’s another nurse in the room, circulating nurse.
She takes it and she puts it in a container and that goes to the lab to
be checked.
Q. Do you open that endo bag and look at the gallbladder at
that point? A. No.
Q. Would it look any different than what you’ve been seeing
the entire surgery? A. Yes, we don’t look at it. We don’t open it.
Q. Have you ever opened the endo bag and looked at it?
A. No.
Q. Have you observed other surgeons, when they do
laparoscopic cholecystectomies, open the endo bag? A. No.
MR. THOMAS DUFF: I object.
THE COURT: Hold on a second, Doctor.
MR. THOMAS DUFF: I object to the question as asking about
what other doctors do. It’s completely inappropriate, and I’d ask the
witness’s answer be stricken and that the jury be instructed to
disregard it.
THE COURT: Doctor, you can answer if you have personal
knowledge.
A. When I scrub in with other surgeons, as I mentioned before,
I’ve never seen anybody open the bag to look at the gallbladder after
it’s been removed from the abdomen.
Q. (By Ms. Nelson) Did Dr. Nechtow open it to look at it?
A. No.
Q. When you were in your surgical training, were you taught
you should open the endo bag and look at the gallbladder? A. No.
Q. When you teach residents, do you teach them to open that
endo bag and look at the gallbladder? A. No.
Dr. Prasad then testified about the complications Anderson experienced
several days after surgery, which were handled by another doctor. Dr. Prasad
explained, “When we finished the operation, we knew that there was some oozing,
which we took care of. But short of that, the rest of the operation looked to have
been—had just gone okay. We didn’t see any—yes, it looked like it was all right.”
Dr. Prasad acknowledged that he learned after the surgery that the right hepatic
artery had been clipped and ducts had been injured.
Over the Estate’s strenuous objection, Dr. Prasad was allowed to answer
the question whether he performed Anderson’s surgery appropriately. He testified:
10
Well, looking back at it, this operation, there were a few things.
One is, I had a chief resident working with me, to help me with the
case and to have another set of eyes. Number two, I took all the
appropriate steps which I needed in the operation. I took my own
time in dissecting. Normally gallbladders we can finish in, you know,
over an hour or even less. But this one we took it slowly and
carefully. Took us almost over three hours of operation. We were
careful in dissecting because the tissue was thick and inflamed and
friable. We made sure that we didn’t do any—it was thick and it was
friable, like it could tear.
And as recommended by most people, that if you cannot do
the critical view of safety, you go to the other technique, the
infundibular technique. And we did cholangiograms to get the
anatomy more clearly. And I did not one but two cholangiograms so
that I was sure that I was in the right area when I was cutting.
So based on all of these steps which I took and also the way
I did the operation, I think I did the operation appropriately.
The Estate cross-examined Dr. Prasad and he acknowledged he learned
after the fact that he had stapled the common bile duct and clipped the right hepatic
artery during the surgery, though he had not intended to do so. After moving
through questions about the surgical report and other medical personnel, Estate
counsel turned to “questions about the consent form” and possible risks, which
included bleeding and bowel and ductal injury.
During closing argument, the defense stated:
As I’ve said, the standard of care is what a reasonable
surgeon does based on their training and their education in those
circumstances.
Dr. Severson told you . . . the steps that Dr. Prasad took were
careful and met the standard of care. They were what reasonable
surgeons are taught to do, and they did not do what reasonable
surgeons are taught not to do.
How about Dr. Prasad? He told you that I’ve done about a
thousand lap choles in my career. That’s a lot of surgeries. How
many injuries has he had? This one, one out of a thousand. We
know the complication rate. The known is three out of a thousand.
....
He told you Mr. Anderson came to him. It was a very difficult
case. He had all of these adhesions, all of this scar tissue. He told
you a normal—whatever that might be—a normal lap chole takes
11
about an hour. He took a little over three hours. He told you, and it’s
documented, he took his time. Dr. Nechtow took his time. They did
a very tedious dissection and went slowly and carefully.
And I submit to you that all of those combined, with what I just
told you, will conclude that Dr. Prasad met the standard of care.
Now, Dr. Feinberg and the plaintiffs say Dr. Prasad should
have caught his mistake during surgery. How? Well, he should have
looked in that endo bag. Remember that Dr. Prasad had that purple
stick with the little bag? He puts the gallbladder in it. And Dr.
Feinberg said he should have opened that up and looked at it.
Well, first of all, Dr. Prasad says, I’ve never opened it up. I’ve
never taught anybody to open it up. I’ve never observed anybody
else opening it up.
Dr. Severson says, No, the standard of care doesn’t require
us to open that up. Why? Well, you might think common sense says,
we’ll open it and look at it. Dr. Prasad says, I’ve been looking at that
gallbladder. I’ve got the scope in there. I’m looking at my monitors.
I’ve seen this gallbladder for the last three hours. What am I going
to see different when I open up that endo bag and look at it with my
naked eye? Not my pathologist’s eye, who’s dissecting it and
opening it up and saying the wall of the gallbladder is half a
centimeter and this and that. He’s looking at it with his naked eye,
which is what he’s been doing.
So the standard of care does not require him to look at that
endo bag. What did Dr Severson say? Well, if he would have looked
at it, it would look like nothing but a big mass of scar build-up. How
is that going to help Dr. Prasad?
The law says that they have to prove he was negligent, that
his steps were not reasonable. I took you through, with Dr. Prasad,
this entire operative report and pointed out every single step he took.
All of these green marks, step after step.
After a two-week trial, the case was submitted to the jury. By special verdict
form, signed by seven of the eight jurors, the jury found Dr. Prasad was not
negligent.
The Estate filed a motion for new trial, asserting the court had improperly
allowed Dr. Prasad to opine on the standard of care even though he was not
certified as an expert witness. The Estate summarized their claims as follows:
MR. JIM DUFF: Okay. Some of the testimony that Ms. Nelson
was referencing regarding Dr. Prasad’s testimony, first, the only time
12
he was asked whether or not his actions were appropriate was in that
final direct question on direct examination.
I haven’t had an opportunity, obviously, to reread it
thoroughly, but I did a quick word search for “appropriate.” Other
than objections outside the presence of the jury, that question is the
first time that was mentioned.
Also, testimony on the standard of care is virtually always
based on somebody’s personal experience. So personal experience
and training in and of itself isn’t appropriate. But when you are using
that personal experience to opine about the appropriateness of the
care, that’s where—getting back to your original question—that’s
where it crosses the line.
And then also the questions where Mr. Tom Duff was asking
Dr. Prasad about the standard of care, that was in the context of the
informed consent form. And the point that was being made was that
just because an informed consent form is signed doesn’t mean you
can perform the surgery negligently.
None of those questions were directed specifically at the
surgery that was being performed in this case. They were sort of
general questions about his duties to still perform the surgery
properly.
And also those questions were asked on cross after that
improper question had already been asked. So you can’t open the
door after the improper question has already taken place, an answer
has already taken place.
And then as a final note here, the fact that these improper
answers and testimony were repeated in closing, that is the source
of the prejudice. It’s not that, you know, she went over the top and
Ms. Nelson, you know, mischaracterized his testimony, by any
means. She did. She simply quoted what Dr. Prasad stated.
However, that testimony was inappropriate. And by repeating it in
closing, that’s where you get that heightened source of prejudice.
In its ruling on the motion for new trial, the court concluded:
From the view from the bench Dr. Prasad gave technically expert
opinion testimony. Although pushing the line, his opinions appeared
to stay within the scope of his status as a treating surgeon dealing
with allowed mental impressions contrasted with providing a
standard of care conclusion.
In Carson, the Iowa Supreme court explained that “the
paramount criterion” when considering the need for Iowa Code
section 668.11 disclosure from treating physicians “is whether th[e]
evidence, irrespective of whether technically expert opinion
testimony, relates to facts and opinions arrived at by a physician in
treating a patient or whether it represents expert opinion testimony
formulated for purposes of issues in pending or anticipated litigation.”
13
Carson v. Webb, 486 N.W.2d 278, 281 (Iowa 1992). Here, the
doctor’s testimony dealt with his idea of him addressing a
complication as opposed to a breach of the standard of care. [The
Estate] and their experts put up a great fight to try and meet their
burden that Defendant was negligent but ultimately fairness was not
impacted. A new trial is not warranted based on Dr. Prasad’s expert
opinion testimony.
The Estate appeals, asserting the trial court improperly allowed Dr. Prasad
to opine on the standard of care during his direct examination, which error was
compounded in closing argument when defense counsel pointed to Dr. Prasad’s
provided testimony when arguing there was no violation of the standard of care.
II. Scope and Standard of Review.
“We review whether a district court properly admitted [or excluded] expert
testimony for abuse of discretion.” McGrew v. Otoadese, 969 N.W.2d 311, 319
(Iowa 2022) (citation omitted). We will not find an abuse of discretion unless the
trial court exercises its discretion “on grounds or for reasons clearly untenable or
to an extent clearly unreasonable.” Eisenhauer ex. rel. T.D. v. Henry Cnty. Health
Ctr., 935 N.W.2d 1, 9 (Iowa 2019) (citation omitted). “Reversal of the district court
is only required if the [Plaintiffs’] substantial rights were affected.” McGrew, 969
N.W.2d at 325 (citation omitted).
III. Discussion.
Iowa Code section 668.11 governs the “[d]isclosure of expert witnesses in
liability cases involving licensed professionals,” and provides:
A party in a professional liability case brought against a licensed
professional pursuant to this chapter who intends to call an expert
witness of their own selection, shall certify to the court and all other
parties the expert’s name, qualifications and the purpose for calling
the expert [within set time limits].
14
“Section 668.11 was ‘designed to require plaintiffs to have their proof
prepared at an early stage in the litigation in order to protect professionals from
having to defend against frivolous suits’ . . . .” Ronnfeldt v. Shelby Cnty. Chris A.
Myrtue Mem’l Hosp., 984 N.W.2d 418, 426 (Iowa 2023) (citation omitted).
Our supreme court has explained that “the paramount criterion” when
considering the need for section 668.11 disclosure from treating physicians “is
whether th[e] evidence, irrespective of whether technically expert opinion
testimony, relates to facts and opinions arrived at by a physician in treating a
patient or whether it represents expert opinion testimony formulated for purposes
of issues in pending or anticipated litigation.” McGrew, 969 N.W.2d at 319
(alteration in original) (quoting Carson, 486 N.W.2d at 281). The line is “between
opinions formed during treatment, which do not trigger an obligation to make an
Iowa Code section 668.11 disclosure, and opinions formed during or in anticipation
of litigation, which do.” Id. at 320.
The Estate asserts Dr. Prasad’s testimony “crossed the line” into disclosure-
required testimony in two instances: when Dr. Prasad characterized his care and
treatment as “appropriate,” and when he testified “about what other physicians do
in similar circumstances.”
The Estate’s counsel asserted at trial and reasserts here that the defense’s
use of the word “appropriate” is “just another way of asking him whether he violated
the standard of care.” In its reply brief, the Estate acknowledges that whether there
is a breach of the standard of care is an objective inquiry and “technically”
Dr. Prasad can testify to his subjective opinions but argues this is “infinitesimal
hairsplitting.”
15
Our focus is on whether Dr. Prasad’s objected-to testimony “relates to facts
and opinions arrived at by a physician in treating a patient or whether it represents
expert opinion testimony formulated for purposes of issues in pending or
anticipated litigation.” Id. at 319.
The trial court determined Dr. Prasad’s testimony did not cross the line into
expert testimony requiring certification:
Under Iowa law, a treating physician may permissibly testify
to his or her factual knowledge, mental impressions and opinions that
are developed during the course of the patient’s treatment and not
acquired or developed in anticipation of litigation or for trial. Hansen
v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 481 (Iowa 2004). This
is because the treating physician ordinarily learns facts in a case,
and forms mental impressions or opinions, long before he or she is
retained as an expert witness, and often before the parties
themselves anticipate litigation. Id. Defendants briefed how
Dr. Prasad’s deposition testimony and trial testimony noted the care
of Mr. Anderson. The key to this analysis is that it appears that his
opinions are within the scope of his status as a treating surgeon and
are not opinions that he developed after the fact for purposes of this
litigation. The grey area is created here because his position as
Defendant requires some after the fact review.
The [Estate] have noted Dr. Prasad did mention what he has
observed during other surgeries in those two particular examples.
This court agrees with the Defendant[s’] argument that Dr. Prasad’s
subjective, personal, education and experience are not necessarily
synonymous with the objective standard of care, i.e., the “degree of
skill, care and learning ordinarily possessed and exercised by
specialists in similar circumstances, and not merely the average skill
and care of a general practitioner.” Both [the Estate] and
Defendant[s] had well qualified experts to provide the standard of
what skill is exercised by specialists in similar circumstances as
required in Jury Instruction No. 15. The court finds that there was
not a conspicuous effort at trial that the Defendants equated the two.
This court finds that Dr. Prasad testified as to what he did and what
his experiences were that impacted his actions in this case. When
Dr. Prasad was talking about his own personal observations of what
others do, that was his observation. He had not seen other surgeons
check the endobag. He had not seen other surgeons dig around the
impacted area to identify tubular structures. Dr. Prasad did not testify
to whether those meet the standard of care. He testified those
16
observations informed a basis for why he did what he did or did not
do in Mr. Anderson’s case.
Dr. Prasad’s language regarding his treatment detailing
whether all of the steps and techniques he used were “appropriate”
provides facts to be evaluated for the standard of care. During trial
it appeared in using the word “appropriate” he was dealing with his
mental impressions. The jury could accept it or reject it. His
testimony as a party opponent is judged on his credibility and how
his description of the circumstances compare to the designated
experts’ description of the standard of care. Because of the nature
of surgery and the technical expertise necessary to describe the
surgery, I find that Dr. Prasad did not cross the line into standard of
care expert testimony. In fact, one juror found that he was negligent
in performing the laparoscopic cholecystectomy of Mr. Anderson in
violation of the standard of care despite Dr. Prasad’s mental
impressions of what Dr. Prasad believed to be appropriate.
We conclude the court’s reasons were neither clearly untenable or unreasonable.
As discussed in McGrew, the central issue is whether Dr. Prasad formed
his opinion as a treater or in anticipation of trial. See 969 N.W.2d at 319–20. We
agree with the trial court Dr. Prasad’s testimony “relates to facts and opinions
arrived at by a physician in treating a patient.” It is true, Dr. Prasad was looking
back at the surgery when answering whether he acted “appropriately.” His after-
surgery review he performed the surgery “appropriately” did not comment on
whether he deviated from or acted consistently with accepted standards of care.
We find no abuse of discretion in the trial court’s allowing Dr. Prasad’s testimony.
In any event, Dr. Severson testified at length before Dr. Prasad about the
standard of care and why, in his opinion, Dr. Prasad’s treatment of Anderson met
the standard of care. Even if we were to find Dr. Prasad’s testimony that he
performed the surgery “appropriately” was testimony he did not breach the
standard of care, Dr. Severson had already given the same testimony without
objection. We do not find the admission of Dr. Prasad’s opinion testimony was
17
prejudicial so as to warrant a new trial. See Vasconez v. Mills, 651 N.W.2d 48, 57
(Iowa 2002) (ruling even if testimony was admitted erroneously, reversal is not
warranted if it is merely cumulative of other evidence); see also Est. of Long v.
Broadlawns Med. Ctr., 656 N.W.2d 71, 88–89 (Iowa 2002) (finding even if
testimony was erroneously admitted, it came after substantially the same evidence
had been admitted without objection and therefore was not prejudicial). Finding
no abuse of discretion in the court’s rulings, we affirm.
AFFIRMED.