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Folkers v. Kounkel

Court of Appeal of Iowa

July 10, 2013

KATHRYN RUTH FOLKERS, Plaintiff-Appellant,
v.
VALERIE KAY KOUNKEL and PHYSICIANS EYE CLINIC, Defendants-Appellees.

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

Kathryn Folkers appeals a jury verdict finding her eye doctor was not negligent in performing cataract surgery.

Eric M. Updegraff of Stoltze & Updegraff, P.C., Des Moines, for appellant.

Thomas J. Joensen and Matthew R. Phillips of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.

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

TABOR, J.

Plaintiff Kathryn Folkers appeals a jury verdict finding her eye doctor was not negligent in performing cataract surgery. Plaintiff's counsel argues the district court abused its discretion in allowing the doctor to submit an excerpt of Folkers's deposition during cross-examination and improperly instructed the jury regarding impeachment evidence. Because Folkers cannot show she was prejudiced by the impeachment evidence or the instruction, we affirm.

I. Background Facts and Proceedings

Folkers, a retired bookkeeper, began wearing corrective lenses in her fifties to help her see better up close. Folkers received treatment at Physicians Eye Clinic in Des Moines where Dr. Valerie Kounkel worked. Folkers visited Dr. Kounkel in March 2007 after Folkers poked herself in the eye with her finger. She next visited Dr. Kounkel on June 3, 2008, for a checkup prompted by her decreased vision and inability to read fine print.

During the June 3, 2008 appointment, Folkers and Dr. Kounkel discussed whether Folkers should undergo cataract surgery. During the visit Folkers consented to surgery on her right eye. Folkers signed a form entitled "Consent For Cataract Surgery with Lens Implant, " which described a cataract, explained the procedure to surgically remove it, and confirmed the doctor explained the procedure to the patient. The consent form detailed the risks and benefits (RBs) of the surgery. Paragraph 3 summarized the particular risks:

Complications of surgery may make my vision worse. In some cases, complications may occur weeks, months, or even years later. Complications include, but are not limited to, bleeding, infection, loss of corneal clarity, retinal detachment, glaucoma, double vision, retinal swelling, total loss of vision and loss of the eye. Rarely the implanted lens may need to be repositioned or removed.

Handwritten in the medical notes from the visit was the phrase: "discussed RBs, questions answered."

On July 9, 2008, Dr. Kounkel performed cataract removal surgery on Folkers's right eye. Folkers was largely satisfied with the results.

On July 17, 2008, Folkers signed an identical informed consent form—this time for surgery on her left eye. On July 23, 2008, Dr. Kounkel performed surgery on Folkers's left eye.

Folkers returned to Dr. Kounkel two days later, complaining of pain persisting since the surgery. Dr. Kounkel referred her to Dr. Christopher Haubert, who performed an "emergency retina surgery" that same day. Folkers learned her complications were caused by a lens fragment that entered the vitreous material of her eye during the left eye surgery.

Because the pain in Folkers's left eye continued, in October 2008, she consulted with Dr. Michael Sarno at Des Moines Eye Surgeons. Dr. Sarno treated her for inflammation and glaucoma, conditions she had not experienced before her left eye surgery. He also referred her to the University of Iowa Hospitals and Clinics, where she underwent two surgeries in 2010.

On July 8, 2010, Folkers filed suit against Dr. Kounkel and others, alleging negligence, breach of contract, and res ipsa loquitur.[1] Dr. Kounkel deposed Folkers on May 4, 2012. During the deposition, Folkers testified to her discussion with Dr. Kounkel regarding the risks associated with surgery:

Q. But if we take the time machine back to that time, July 9, and your subsequent visit, do you feel that Dr. Kounkel was attentive to you during the procedure and afterwards?
A. On the right eye?
Q. Yes. A. I think so.
Q. Did you have any questions for her at that time that weren't answered by Dr. Kounkel?
A. No. I don't think so.
Q. So you were satisfied with the whole process with regard to the right eye; correct?
A. Except for the fog thing.

The district court held trial from August 20-22, 2012. On direct examination Folkers testified Dr. Kounkel did not explain the risks and benefits of surgery. Folkers denied the parties substantively discussed the surgery, alternatives, or potential complications. Folkers claimed the choice to proceed with the surgery was less her own desire than Dr. Kounkel's decision. On cross-examination defense counsel revisited with Folkers whether Dr. Kounkel explained the risks and benefits of cataract surgery at any time.

Defense counsel first read the June 3 medical notes indicating the doctor discussed the risks and benefits of surgery with Folkers. When Folkers denied the discussion took place, the attorney read the deposition excerpt in which Folkers testified that as of her July 9 surgery, she believed Dr. Kounkel was attentive and left no question unanswered during and after the right eye procedure. Plaintiff's counsel objected on the basis that the passage regarding the July 9 surgery could not be ...


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