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Stellmach v. State

Court of Appeals of Iowa

May 3, 2017


         Appeal from the Iowa District Court for Johnson County, Marsha A. Bergan, Judge.

         Tamara and John Stellmach appeal from the jury's adverse verdict in their action for medical malpractice.

          James K. Weston II of Tom Riley Law Firm, Iowa City, for appellants.

          Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant Attorney General, for appellee.

          Pope S. Yamada and Richard M. Tucker of Phelan, Tucker, Mullen, Walker, Tucker & Gelman, L.L.P., Iowa City, for appellee.

          Heard by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         Tamara and John Stellmach seek a new trial in this medical malpractice action, contending the district court erred in it rulings concerning the admissibility of certain testimony by Dr. Bruce Gantz and Dr. Paul Towner.

         Because the jury did not reach the issue of causation, the failure to admit or exclude evidence as to causation is without prejudice to the Stellmachs. The trial court did not abuse its discretion in denying their motion for new trial.

         I. Background Facts and Proceedings.

         On February 22, 2008, Tamara underwent procedures for a voluntary research project at the University of Iowa Hospitals and Clinics (UIHC) Center for Digestive Diseases. The project included a biofeedback study employing transcranial magnetic stimulation (TMS). The consent form for the study described TMS as follows: "Magnetic stimulation uses very short single pulses of magnetic energy to stimulate areas of the brain through the scalp." With respect to the potential risks, the consent form states:

The most significant, although very rare, risk when using transcranial magnetic stimulation is the induction of seizures. People who have had seizures, major head trauma or a history of epilepsy with no known cause, presence of metal in the skull or under the skull, presence of metal in the back or hips, a cardiac pacemaker, an implanted defibrillator or a medication pump cannot take part in this study. If any of these conditions applies to you, it is VERY IMPORTANT that you share this with the research team and you should not take part in this study.

         The next day, February 23, Tamara presented to the UIHC emergency room (ER), reporting "left facial droop and numbness." Tamara reported "the left side [of her face] does feel differently than right, less sensation." The following are included in the ER notes of Dr. Tara Cook:

A 40-year old lady with a family history of Bell's Palsy who recently has had a bacterial ear infection, who presents with left facial weakness including both upper and lower weakness, likely representing a post-infectious Bell's Palsy. Given her lack of other focal findings, unlikely representing stroke or hypertensive emergency in the setting of her elevated blood pressure this morning. - TC/kms
Recommend follow up with her primary care physician. No need to treat with steroids at this time, given the lack of supporting evidence in the literature.

         Dr. Thomas Wernimont noted an impression of "left face weakness, probable Bell's Palsy, " indicated the neurology department was contacted for a consult, and concluded "Patient's diagnosis of Bell's Palsy[1] agree with by neurology." Tamara was prescribed anti-viral medication and discharged.

         Tamara's facial condition did not improve. On March 5, Tamara presented herself to Dr. Bruce Gantz, a neuro-otologist and the head of the UIHC Department of Otolaryngology-Head and Neck Surgery. Dr. Gantz performed facial nerve decompression surgery that day. Tamara's medical summary after surgery performed by Dr. Gantz indicates Tamara presented with "active problems, " including hypertension and "Bell[']s Pals[]y due to transcranial magnet treatment, " and that Tamara's "left cranial nerve #4 entrapment was freed up."

         On December 3, 2010, the Stellmachs filed suit against UIHC contending it had failed to obtain a proper informed consent before performing the TMS procedure on Tamara and it negligently performed TMS and failed to properly diagnose and treat conditions proximately resulting from TMS.

         Dr. Gantz was deposed in 2011, at which time he opined:

Q. Do you have any opinion as to whether the [TMS] Ms. Stellmach received-whether that had any possible part in the facial paralysis?
A. It could have, and I'll explain why my thought process is there.
Q. Sure.
A. When she-When I saw her, and she told me about the transcranial stimulation, she told me it caused a severe pounding in her head, and it caused her head to move. And I was wondering-I don't know for certain-if that had anything to do with reactivation of a herpes simplex virus just like happens in trauma or that we see with lifting up the brain at times.
I have no way of knowing whether that is possible or it-I don't know the levels. I just know that she told me that there was a severe pounding, and it was really impressed upon her that it was extremely uncomfortable, what she had done.
Q. Do you have any opinion as to whether it would be-you would be comfortable with Ms. Stellmach receiving further transcranial magnetic stimulation?
A. That's up to her. I mean, I have no opinion. You know, I mean, we don't know if that caused it. It may have contributed to it. I don't know.

         UIHC later moved for summary judgment, asserting that, on February 23, 2008, Tamara was seen at the UIHC emergency department for a left-sided facial paralysis and was examined by ER physician Dr. Dana Collaguazo and neurologist Dr. Tara Cook. Tamara was diagnosed with post-infectious Bell's Palsy and was treated with the anti-viral drug Acyclovir, given an eye patch and rewetting drops to protect her left eye, and was instructed to follow up with her primary physician. UIHC alleged there was no evidence it had violated a medical standard of care by only prescribing an anti-viral drug to treat Tamara's facial paralysis, and Dr. Gantz did not provide testimony that UIHC violated the standard of care by failing to properly treat Tamara's facial paralysis, but rather Dr. Gantz testified that he, as a neurologist, would have treated Tamara with an anti-viral drug and a steroid. Dr. Gantz did not testify that treatment with both an anti-viral drug and steroid was the accepted general medical practice for treating this type of facial paralysis.

         In resistance, the Stellmachs asserted the TMS procedure caused a pounding and pain in Tamara's head. Tamara informed the provider of the pounding and pain, yet the procedure was not stopped. The Stellmachs argued:

Tamara Stellmach was not told of the risks she was facing by undergoing [TMS]. She testified that, had she been told, she would not have undergone the procedure, which was part of a study, not vital to her wellbeing. As a result of undergoing TMS, Tamara Stellmach suffers from permanent facial paralysis, a significant injury. . . . Tamara Stellmach testified that Dr. Gantz told her TMS caused her facial paralysis. Dr. Gantz is an employee and agent of Defendant, and therefore the statement is an admission of a party opponent. Furthermore, Dr. Gantz testified that TMS could have caused the facial paralysis, and explained how the trauma Ms. Stellmach endured during TMS caused inflammation of the facial nerve. Tamara Stellmach testified she had no facial paralysis prior to undergoing TMS. The probability of causation can be shown by joining expert testimony that causation is possible with non-expert testimony that the condition did not exist prior to the event.

         The court concluded there were genuine issues of fact precluding summary judgment.

         The Stellmachs' amended designation of expert witnesses named Dr. Gantz, who was to "testify in conformity with his deposition regarding issues of informed consent, standard of care, causation, and damages"; "any of her treating health care providers who may or will testify regarding issues of informed consent, standard of care, causation and damages including, but not limited to, staff at [UIHC]"; "admissions made by [UIHC]'s agents and employees"; and reserved the right "to utilize as expert witnesses those individuals designated by Defendant in its Certification to the Court."

         At trial, over UIHC's objections, the Stellmachs were allowed to present testimony about Dr. Gantz's statements to them. Tamara testified she saw Dr. Gantz on March 5 and he believed she had a compressed facial nerve and recommended immediate surgery. She asked him if the TMS study could have caused the condition, and "[h]e responded with it's possible that it could have unless I had a head trauma." Tamara also testified that, when she went to a postoperative appointment, Dr. Gantz "felt that the research study from the banging on the head is what caused the nerve to be trapped in my skull."

         Tamara's mother-in-law was allowed to testify that, after Tamara's operation, she heard Dr. Gantz say "the research study caused the problem." ...

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