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Sandra L. Musgrove v. Larry A. Mccray

April 24, 2013

SANDRA L. MUSGROVE, PLAINTIFF-APPELLANT,
v.
LARRY A. MCCRAY, D.D.S., M.S., DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.

The opinion of the court was delivered by: Bower, J.

Sandra Musgrove appeals from the district court order granting summary judgment in favor of Dr. Larry McCray on her medical battery and medical negligence claims. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Considered by Doyle, P.J., and Mullins and Bower, JJ.

Sandra Musgrove appeals from the district court order granting summary judgment in favor of Dr. Larry McCray on her medical battery and medical negligence claims. Musgrove contends there is a genuine issue of material fact regarding whether she consented to the removal of all of her teeth, and therefore summary judgment was inappropriate on her medical battery claim. She also contends that expert witness testimony is unnecessary to prove her medical negligence claim, and therefore it should survive summary judgment.

Musgrove's failure to designate an expert witness to establish the applicable standard of care bars her medical negligence claim. However, a genuine issue of material fact exists as to whether or not Musgrove consented to the removal of her bottom teeth. Therefore, we reverse the district court's grant of summary judgment on Musgrove's medical battery claim and remand for further proceedings.

I. Background Facts and Proceedings.

Sandra Musgrove was referred by her dentist, Dr. Charles Choi, to Dr. Larry McCray, an oral surgeon, for removal of her upper teeth in preparation for dentures. Musgrove had previously had a number of her upper and lower teeth extracted, and several of the remaining teeth had either fillings or crowns. At least one lower tooth required a filling. Musgrove wished to have her remaining upper teeth extracted, and Dr. Choi was preparing an upper denture for her.

On March 23, 2010, Musgrove signed an "Informed Consent for Oral Surgery, Anesthesia Sedation" for Dr. McCray. At the top of the form, the name of the operation or procedure is "removal of remaining teeth and alveolectomy [with] IV sedation." At the bottom of the form Musgrove initialed the statement, "The nature of the surgery and anesthesia has been FULLY EXPLAINED TO ME and no warranty or guarantee has been made as a result and/or cure." The form states: "I HAVE READ AND UNDERSTAND ALL OF THE ABOVE INFORMATION. I HAVE BEEN GIVEN INFORMATION REGARDING AVAILABLE OPTIONS, INCLUDING NO TREATMENT, AND CONSENT TO THIS PROCEDURE AS DISCUSSED. I HAVE BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS AND HAVE RECEIVED SATISFACTORY ANSWERS." Musgrove also signed the form.

Dr. McCray performed the extraction surgery on April 8, 2010. He removed all of Musgrove's remaining teeth, which were identified as numbers 6-13 and 20-27. Dr. McCray wrote Dr. Choi a letter explaining that he had removed all of Musgrove's teeth.

On January 19, 2011, Musgrove filed a petition against Dr. McCray, alleging medical negligence and medical battery. She claimed she did not consent to the removal of her lower teeth, and only understood that she was consenting to the removal of her upper teeth.

Musgrove did not designate an expert witness within the deadline provided in Iowa Code section 668.11 (2011). After Musgrove was deposed on November 3, 2011, Dr. McCray moved for summary judgment on both claims, alleging in part that Musgrove failed to timely designate an expert witness as was required to prove her claims. On that same day, November 15, 2011, Musgrove filed a certification of expert witness, which Dr. McCray moved to strike as untimely. Musgrove resisted both the motion for summary judgment and the motion to strike her expert witness designation.

A hearing was held on January 27, 2012. In its March 12, 2012 ruling, the district court denied McCray's motion to strike and gave Musgrove additional time to supplement her discovery responses regarding her designated expert. The court held that Musgrove needed an expert to prove both of her claims. It granted the parties additional time to supplement their motion for summary judgment and resistance, and ordered that the motion would be resubmitted on April 17, 2012.

Musgrove failed to supplement her discovery responses as provided by the court's March 12, 2012 order. On May 14, 2012, Musgrove withdrew her expert witness designation and requested the original motion for summary judgment be submitted and ruled upon by the court. The district court entered its order the same day, finding Musgrove failed to provide expert witness discovery as ordered. The court found that such ...


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