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Hammen v. Iles

Court of Appeal of Iowa

May 30, 2013

MARTIN F. HAMMEN, Individually, SIMONE P. SHARP HAMMEN, Individually, and MARTIN F. HAMMEN and SIMONE P. SHARP HAMMEN, Together as Next Best Friends and Natural Parents of BO F. HAMMEN, a Minor Child, Deceased, Plaintiffs-Appellants/Cross-Appellees,
v.
LYNETTE I. ILES, M.D., and WASHINGTON COUNTY HOSPITAL AND CLINICS, Defendants-Appellees/Cross-Appellants.

         Appeal from the Iowa District Court for Washington County, Myron L. Gookin, Judge.

         Interlocutory appeal from the trial court's grant of partial summary judgment in favor of defendants in a wrongful death suit and denial of summary judgment on plaintiffs' consortium claim.

          Laura Lemos and John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for appellants.

          Mikkie Schiltz and Robert Waterman of Lane & Waterman, L.L.P., Davenport, for appellee Iles.

          Nancy Penner and Constance Alt of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee hospital.

          Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

          EISENHAUER, C.J.

         Martin and Simone Hammen, parents of Bo Hammen, who died in June 2010, appeal from the trial court's grant of summary judgment in favor of the defendant doctor and hospital in their medical malpractice suit. They contend the court erred in concluding the statute of limitations barred amending their petition to substitute Bo's estate as plaintiff and barred claims on Bo's behalf. On cross appeal, the doctor and hospital contend the court erred in denying their motion for summary judgment on the parents' loss of consortium claims. We affirm on appeal and on cross-appeal.

         I. Background Facts and Proceedings

         Bo Hammen was born on September 16, 2006. Because of complications during birth, Bo suffered severe injuries. He died on June 10, 2009, as a result of those injuries. On June 8, 2011, the parents individually and as next friends filed suit against Lynette I. Iles, M.D. and Washington County Hospital and Clinics alleging medical malpractice, vicarious liability on the part of the hospital for the actions of the doctors, breach of contract, and loss of consortium.

         In January 2012, the defendants filed a joint motion for summary judgment alleging (1) Bo's claims belonged to his estate and no estate had been opened to pursue his claims within the applicable limitation period and (2) the breach of contract claim and Iowa Rule of Civil Procedure 1.206 loss of consortium claims were time barred. On March 22, 2012, the motion for summary judgment came on for hearing. That same day, the parents opened an estate for Bo and moved to amend their petition to substitute Bo's estate as a plaintiff for the parents as next friends and to add a claim of fraudulent concealment. The court held a hearing on the parents' motion to amend on May 10.

         On May 18, the court issued its ruling on all the motions. The court concluded the parents lacked standing to bring the wrongful death claims on Bo's behalf. See Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 312 (Iowa 1982) (noting under Iowa Code section 611.22 only the legal representative of a decedent's estate has authority to bring the action). The court denied their motion to substitute the administrator of Bo's estate, concluding there had been no one with standing to file the suit when the statute of limitations ran on the claims because Bo's estate was not opened until months later. The court also denied the parents' motion to add a claim for fraudulent concealment.

         On the parents' rule 1.206 loss of consortium claims, the court noted the language of the rule and Iowa Code section 613.15A (2011), which both provide parents can sue for damages "resulting from injury to or death of a minor child, " contains the disjunctive "or, " giving parents the option to sue for injuries to a child while living or to sue for wrongful death. The court concluded a claim for wrongful death does not accrue until the child's death, so the applicable two-year limitation period begins to run at the child's death. See Iowa Code § 614.1(2). Therefore, the court denied the defendants' motion for summary judgment, finding the parents' loss of consortium claims were timely filed.

         The parents appealed. The defendants filed an application for interlocutory appeal. The parents then filed an application for interlocutory appeal. The ...


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