from the Iowa District Court for Johnson County, Marsha A.
and John Stellmach appeal from the jury's adverse verdict
in their action for medical malpractice.
K. Weston II of Tom Riley Law Firm, Iowa City, for
J. Miller, Attorney General, and Anne Updegraff, Assistant
Attorney General, for appellee.
S. Yamada and Richard M. Tucker of Phelan, Tucker, Mullen,
Walker, Tucker & Gelman, L.L.P., Iowa City, for appellee.
by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
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.
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.
Background Facts and Proceedings.
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.
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.
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 agree with by neurology." Tamara was
prescribed anti-viral medication and discharged.
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 Palsy due to transcranial magnet
treatment, " and that Tamara's "left cranial
nerve #4 entrapment was freed up."
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.
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
A. It could have, and I'll explain why my thought process
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.
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.
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.
court concluded there were genuine issues of fact precluding
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."
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."
mother-in-law was allowed to testify that, after Tamara's
operation, she heard Dr. Gantz say "the research study
caused the problem." ...