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Stutzman v. West Des Moines OB/GYN, P.C.

Court of Appeal of Iowa

October 23, 2013

LUKE STUTZMAN, Individually and as Executor of the ESTATE OF JULIE STUTZMAN; and TREY STUTZMAN, CAROL WILLIAMS MURPHY, and DEL MURPHY, Individually, Plaintiffs-Appellants,
v.
WEST DES MOINES OB/GYN, P.C.; DR. BEVERLY BELSHEIM, Individually and as an Employee of WEST DES MOINES OB/GYN; ADEL FAMILY MEDICAL CENTER, PC; DR. SUSAN DONAHUE, Individually and as an Employee of ADEL FAMILY MEDICAL CENTER, P.C., Defendants-Appellees.

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

The plaintiffs appeal the court's entry of directed verdicts for the defendants in this medical malpractice action.

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

John D. Hilmes, Erik P. Bergland, and Kellen B. Bubach of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gafney, P.C., Des Moines, for appellees.

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

DANILSON, J.

The plaintiffs appeal the district court's entry of directed verdicts for the defendants in this medical malpractice action. The court concluded the plaintiffs had failed to establish essential elements of their claims. Because the plaintiffs' expert found fault only with respect to the gynecologist's record keeping for the June 11, 2007 office visit, and nothing in this record establishes a nexus between the record keeping and the decedent's illness, we affirm the entry of judgment for the defendants.

I. Background Facts and Proceedings.

Dr. Beverly Belsheim had been the gynecologist for Julie Stutzman since 1992. In 2005, Julie gave birth to her son, Trey Stutzman. Approximately seven months later, on January 17, 2006, Julie called Dr. Belsheim's office. The nurse taking the call wrote,

Pt called and stated she only nursed 1 week. Pt is 7 mns PP c/o leakage in early AM and after baths. Told the pt to come in and have PRL, TGH drawn. I also told her per Belsheim it can take this long for your breast milk to dry up.[1]

Julie did not go for the recommended testing.

On June 11, 2007, Julie had an annual "well woman" appointment with Dr. Belsheim. Julie complained of breast discharge after hot baths. Dr. Belsheim's notes indicates " expressible" in the "breasts" section, and it notes a diagnosis of galactorrhea. Dr. Belsheim's record for an April 29, 1999 examination of Julie indicates Julie had expressible galactorrhea "on L only."

Julie was diagnosed with breast cancer in March 2008, and died from breast cancer on September 19, 2009. Her family[2] sued Drs. Belsheim and Donahue[3] and their employers for negligence, contending they deprived Julie of an early opportunity to detect, diagnose, and treat her cancer. At trial, plaintiffs asserted that Dr. Belsheim was negligent (1) in handling the January 17, 2006 telephone call from Julie; (2) in not ordering breast imaging based upon the June 11, 2007 examination of Julie; and (3) in preparing the medical record of the June 11 examination.

Dr. Belsheim testified Julie presented with bilateral galactorrhea, explaining that she was able to express a milky substance from both of Julie's breasts.[4] She testified that had the discharge been unilateral, she would have ordered a mammogram. Upon questioning by plaintiffs' counsel as to how she could know the discharge was bilateral from the notes of that exam, Dr. Belsheim responded, "My diagnosis of galactorrhea. That is what galactorrhea is." She stated, "It was bilateral. I have no doubt of that. . . . If it was unilateral, I would have done a mammogram, although I would recognize that unilateral galactorrhea is probably not a sign of breast cancer."

Plaintiffs presented the testimony of Dr. Raymond Schulte. Dr. Schulte acknowledged he had "no concerns or criticisms" of the handling of the January 17, 2006 telephone call. During his testimony he further acknowledged that at his deposition he stated he had no criticisms, complaints, or concerns about the June 11, 2007 office visit. Dr. Schulte testified that the record from the June 11, 2007 examination did not meet the standard of care because it did not indicate whether the " expressible" breast discharge was unilateral or bilateral, and did not describe the coloration and consistency of the discharge. "That would be kind of a baseline of adequate." He testified that he could not tell from the report if Julie was experiencing unilateral or bilateral discharge. Dr. Schulte testified that unilateral discharge would require some sort of imaging study to rule out breast cancer. He acknowledged that bilateral discharge would not require a follow-up mammogram.

The plaintiffs then called Dr. Gerald Sokol, who testified that had some sort of breast imaging been done in June 2007, "it's more likely than not that [Julie's cancer] would have been detectable." He also testified that had the "tumor been diagnosed between nine or ten months earlier, or maybe a year or two earlier, she clearly would have had a better chance to survive." When asked if the cancer would have been detectable in January 2006, Dr. Sokol stated:

Well, that is a harder date to state with absolute assurance that it would have been detected. The answer is maybe. But I can't tell you that it would have been able to be detected. It could have been. It is a maybe, but I don't know that anybody can say for sure that, roughly, whatever it was 18 months, or so before her diagnosis, that it clearly would have been evaluable. To some extent it depends on how hard you look. Perhaps, if they had ...

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