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Kush v. Sullivan

Court of Appeal of Iowa

June 12, 2013

JACKIE KUSH and ALLEN KUSH, and KASEY WARNKE, Individually and Next Friends of DAWSON KUSH, a Minor, Plaintiffs-Appellants,

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

Jackie Kush appeals the summary judgment order dismissing her medical malpractice claim.

Alfredo Parrish and Eric Kenyatta Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellants.

Erik P. Bergeland of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees.

Heard by Danilson, P.J., and Tabor and Mullins, JJ.


Jackie Kush sued Dr. Patrick Sullivan, her orthopedic surgeon, alleging he engaged in professional negligence by using the wrong size prosthetics when replacing her knees. She designated Dr. Charles Clark, the treating physician who performed revision surgery on her knees, as the only expert witness in her medical malpractice suit. But when deposed by the defense, Dr. Clark said Kush had not hired him as an expert witness and he declined to give an opinion on the standard of care.

Dr. Sullivan moved for summary judgment, alleging Kush could not establish a prima facie case of medical malpractice without an expert opinion that he violated the standard of care. Plaintiff's counsel resisted, filing an affidavit by Kush recounting Dr. Clark's criticisms of Dr. Sullivan's work. The district court granted summary judgment, finding the record "void of any evidence" Dr. Sullivan breached the standard of care.

On appeal, Kush contends the district court entered summary judgment prematurely and erred in finding Dr. Clark could not be compelled to give an expert opinion that Dr. Sullivan violated the standard of care.[1] Kush also asserts her affidavit was sufficient to divert the grant of summary judgment.

At the time of the hearing on summary judgment, Kush did not have on record an expert opinion that Dr. Sullivan performed negligently. Nobody asked Dr. Clark during his deposition if he had formed an opinion regarding the standard of care in Kush's case. Nobody asked him about the accuracy of Kush's recollection he made derogatory statements about Dr. Sullivan's work, and if he made those statements, whether in his mind they equated to an expert opinion on deviation from the standard of care. Given the state of the record, we agree with the district court's grant of summary judgment.

I. Background Facts and Proceedings

Viewed in the light most favorable to Kush, the following facts appear in the summary judgment record. In December 2008, Kush sought treatment from Dr. Sullivan for pain in her right knee. She suffered discomfort in both knees as time went on. Dr. Sullivan eventually recommended thirty-eight-year-old Kush have both knees replaced. He performed total replacement surgery on her right knee on March 13 and her left knee on March 17, 2009.

Kush's knees continued to bother her after the surgeries. She reported muscle cramps and sleep problems. Dr. Sullivan prescribed pain medication and limited her activity, but her symptoms persisted. She experienced excruciating pain; her knees would pop; and she had decreased function in her knees, ankles, and hips.

Kush sought answers from Dr. Lynn Lindaman, another Des Moines area orthopedic surgeon. Kush recalled that Dr. Lindaman suggested the replacement knees were not the proper size and referred her to Charles Clark, an orthopedic surgeon at the University of Iowa Hospitals and Clinics. Dr. Clark performed revision surgeries on Kush's knees seven months after her original replacement surgeries. After she had the new implants, her symptoms dramatically improved.

On January 7, 2011, Kush sued Dr. Sullivan, claiming professional negligence and loss of consortium.[2] Specifically, she alleged Sullivan deviated from the generally accepted standard of medical care:

a. In negligently choosing an oversized prosthetic component both prior to and at the time of surgery;
b. In negligently failing to discover the inappropriate size of the prosthetic components at the time of the surgery so that it could be remedied;
c. In discharging Ms. Kush before she attained a state of adequate recovery; and
d. In failing to exercise a degree of care and skill ordinar[il]y exercised under the conditions and circumstances then and there existing.

Kush designated Dr. Clark as her sole expert witness "to testify regarding issues of the appropriate standard of care, deviations from the appropriate standard of care, causation, and damages." She filed the expert designation on July 29, 2011—one day before the deadline—as well as an application for additional time to designate expert witnesses. On December 12, 2011, the district court found no good cause to extend the deadline to designate additional expert witnesses and denied her request.

During Dr. Clark's January 17, 2012 deposition, he repeatedly declined to offer expert testimony on standard of care. He told counsel he was testifying "regarding my care and treatment of the patient, period." When asked if he was prepared to offer an opinion whether Dr. Sullivan breached a standard of care to Kush, he answered "No." On multiple occasions Dr. Sullivan refused to answer questions from plaintiff's counsel relating to the standard of care; the doctor would only testify as to his personal procedures:

A. Once again, the term "standard of care" is a legal term, and when we teach, I don't teach a resident "this is a standard of care." I teach them what I believe is the best way to, you know, examine a patient, to discuss surgery with a patient, and to do the surgery and what the elements are, you know, with all those things. I don't tell them that the standard of care is X, Y, and Z. I teach them what I believe is the appropriate way to examine and discuss with the patient and do the surgery.
Q. Okay. I think the problem we're having is one of semantics, and I think you're getting hung up and maybe I'm getting hung up on "standard of care, " and I think the way you put it is good. So when you teach your students, obviously you want to teach them the best way to do it, correct; that's your goal? A. What in my opinion is the best way, back to your previous comments, I'm not getting hung up on semantics. "Standard of care" is basically a legal term, ...

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