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Andersen v. Khanna

Supreme Court of Iowa

June 15, 2018

ALAN ANDERSEN, Individually and as Injured Parent of CHELSEA ANDERSEN and BRODY ANDERSEN, and DIANE ANDERSEN, Wife of Alan Andersen, Appellants,
v.
SOHIT KHANNA, IOWA HEART CENTER, P.C., and CATHOLIC HEALTH INITIATIVES IOWA CORP. d/b/a MERCY HOSPITAL MEDICAL CENTER, Appellees.

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         Patient and his family seek further review of a court of appeals decision affirming an adverse jury verdict.

          Marc S. Harding of Harding Law Office, Des Moines, for appellants.

          Nancy J. Penner, Jennifer E. Rinden, and Robert D. Houghton of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees.

          WIGGINS, Justice.

         A patient and his family brought a medical negligence action against a physician and the physician's employer. They alleged specific negligence and the failure of the physician to obtain informed consent. The district court granted summary judgment in favor of the defendants on the claim of informed consent based on the physician's failure to disclose his lack of training and experience in performing the particular procedure. During trial, the court refused to allow the plaintiffs to proceed with their informed-consent claim based on the physician's failure to disclose the risk of the surgery considering the patient's bad heart.

         The case proceeded to trial on the specific negligence claim. However, the court would not submit a specification of negligence regarding the physician's lack of training or experience. The jury returned a verdict for the defendants, and the court entered judgment for the defendants. The patient and his family appealed. We transferred the case to the court of appeals, and it affirmed the judgment of the district court. The patient and his family sought further review, which we granted.

         On further review, we affirm the district court's judgment on the specific negligence claim. However, we find the district court erred when it removed the two informed-consent claims from the case. Accordingly, we remand the case back to the district court to allow the patient and his family to proceed on their two informed-consent claims consistent with this opinion.

         I. Factual and Procedural Background.

         On January 2, 2004, Alan Andersen underwent a Bentall heart procedure performed by Dr. Sohit Khanna, an employee of the Iowa Heart Center, P.C. Khanna performed the procedure at the Mercy Hospital Medical Center in Des Moines. At the time, Khanna did not have any experience or training in performing the particular Bentall procedure used on Andersen. There were several complications with the procedure that resulted in Andersen being in a coma, undergoing a second heart surgery, and having a heart transplant.

         In September 2005, Andersen, his wife, and children[1] filed a petition against Khanna, Iowa Heart, and Mercy. In addition to alleging negligence against Khanna, Iowa Heart, and Mercy, Andersen alleged Khanna and Mercy failed to obtain informed consent from Andersen prior to surgery. The basis of the informed-consent allegation was that Khanna, Iowa Heart, and Mercy failed to properly advise Andersen of the risks and dangers of the procedure.

         Andersen filed an amended petition in August 2008. In the amended petition, he alleged Khanna and Iowa Heart did not obtain informed consent because they failed to advise Andersen that Khanna had limited experience in performing a Bentall procedure.

         In May 2010, Khanna and Iowa Heart filed a motion for partial summary judgment on the informed-consent allegations in the amended petition, claiming a physician does not have a duty to disclose physician-specific characteristics or experience in obtaining a patient's informed consent. Notably, the motion for partial summary judgment did not explicitly challenge Andersen's informed-consent claim to the extent it was based on Khanna's and Iowa Heart's alleged failure to disclose the risks and dangers of the procedure.

         On June 15, 2010, the district court agreed with Khanna and Iowa Heart that under Iowa law a physician does not have a duty to disclose physician-specific characteristics or experience in obtaining informed consent. Therefore, the court granted Khanna and Iowa Heart's motion for partial summary judgment. The relevant part of the ruling stated,

The first motion the Court considers is Dr. Sohit Khanna and the Iowa Heart Center's Motion for Partial Summary Judgment in regard to the issue of informed consent. The Court having read and reviewed the motion, the memorandum of authorities in support of the motion for partial summary judgment, the resistance filed by the Plaintiffs, the affidavits and the entire court file and otherwise being duly advised in the premises finds that the Motion for Partial Summary Judgment should be, and is, hereby sustained. The Court agrees with the Defendant Khanna and the Iowa Heart Center that the informed consent for patients as defined under Iowa law requires a disclosure to the patient of all known material information concerning the procedure to be performed which includes disclosing the material risks concerning a particular procedure. The Court finds that Iowa law does not include a duty to disclose personal characteristics or the experience of a physician or doctor in obtaining informed consent from a patient. Therefore, pursuant to Iowa law, the Court finds that the motion for summary judgment filed by Dr. Khanna and the Iowa Heart Center regarding informed consent is hereby sustained.

         This ruling removed from the case the informed-consent claim based on failure to disclose lack of experience. This ruling did not remove the informed-consent claim based on failure to advise Andersen of the risks and dangers of the procedure due to his bad heart.

         In May 2011, Dr. Henri Cuenoud, one of the defendants' experts, was deposed. In that deposition, Dr. Cuenoud opined Andersen's heart valve "was severely stenotic and leaking a lot as well[, which] is the worst valve condition you can get" and described Andersen's heart's presurgery condition as exhausted, "like somebody at the end of a marathon." Dr. Cuenoud also concluded Khanna was aware of the poor condition of Andersen's heart. When asked, "[G]iven Mr. Andersen's dire condition prior to surgery, were there any special or out-of-the-ordinary steps that Dr. Khanna should have taken to deal with it, " Dr. Cuenoud replied, "I would say that I would have quoted a higher risk of surgery of not being able to come off the pump . . . something like 25 percent chance of not making it" and that, retrospectively, Khanna should have been more forthcoming about the risk of surgery.

         Based on that information from Dr. Cuenoud's deposition, on June 1, 2011, Andersen filed a motion to reconsider the June 15, 2010 partial summary judgment ruling on informed consent. Andersen asserted Khanna should have informed him of the increased risk of surgery due to Andersen's heart's poor presurgical condition. Andersen requested the court reverse its partial summary judgment grant and "allow[ ] the parties to adduce evidence regarding the informed consent issue as it has now developed in light of the anticipated testimony of Dr. Henri Cuenoud."

         On September 9, 2011, the plaintiffs voluntarily dismissed Mercy from the lawsuit. Therefore, any reference to Khanna will hereinafter also refer to Iowa Heart.

         On September 20, 2011, a second judge ruled on the motion to reconsider. The ruling provided in its entirety,

The Court reconsiders its June 15, 2010, ruling and enters the following ruling modifying the same only as follows: The Plaintiffs shall be allowed to present evidence relating to Dr. Cuenoud's awareness of the Plaintiff's increased mortality risk and apprising the Plaintiff of the same.[2]

         This ruling allowed Andersen to pursue an informed-consent claim based on Khanna's failure to disclose the increased risk from the heart's presurgery condition.

         This ruling also addressed Khanna's second motion in limine, filed June 10, 2011, which requested the court disallow "[a]ny reference to, or evidence concerning, allegations of lack of informed consent, negligent credentialing, and that Dr. Khanna was not qualified." The court ruled that limine request was

SUSTAINED as to negligent credentialing. Dr. Khanna's qualifications may be pursued by the Plaintiffs in the context of general negligence claim, along with the issue of informed consent consistent with the Court's ruling on this issue on the Plaintiff's Motion to Reconsider.

         Trial began in October 2011 but resulted in a mistrial on October 31, 2011. The court reset the case for trial to begin in April 2013. In anticipation of the second trial, Andersen submitted proposed jury instructions, including an informed-consent instruction based on Khanna's failure to disclose a material risk due to the presurgery condition of Andersen's heart. The second trial also resulted in a mistrial on April 15, 2013. Following the second mistrial, both Andersen and Khanna retained new counsel.

         The court reset the case for a third trial to begin in July 2014. On June 30, 2014, Andersen submitted proposed jury instructions, which again included informed consent based on Khanna's failure to disclose a material risk due to the presurgery condition of Andersen's heart.

         At the pretrial conference on July 2, 2014, the parties argued whether informed consent was still part of the case. Andersen claimed informed consent based on failure to disclose the increased risk due to his bad heart remained an issue in the case. Khanna disagreed. Yet another district court judge assigned to preside over the case stated,

Well, here is where I'm still confused, more so from a lack of sustained involvement in this case. There was an informed consent claim that was the subject of a summary judgment motion which was granted. Now, ordinarily that would tell me everything I need to know about the viability of the informed consent claim. Has there been any effort to re-plead another informed consent claim since Judge Rosenberg's [June 15, 2010] ruling?

         Andersen's counsel answered, "Not to my knowledge, " and the district court proceeded to the next topic without resolving the informed-consent issue. The court's written order that followed the pretrial conference also did not resolve or conclude whether informed consent based on failure to disclose the increased risk due to Andersen's bad heart remained an issue in the case.

         In his case-in-chief at trial, Andersen did not offer evidence to support his informed-consent claim based on failure to disclose the increased risk due to his bad heart. It appears he was waiting for Dr. Cuenoud to testify as an expert witness to present evidence on this claim. Khanna failed to move for a directed verdict on that issue at the close of Andersen's case-in-chief.

         This informed-consent issue arose again just before Dr. Cuenoud was to testify. The court held a discussion outside the presence of the jury. Andersen reminded the court of the increased risk claim supported by Dr. Cuenoud's testimony. Khanna again alleged that this issue was out of the case due to the September 20, 2011 ruling.

         Following a break for the court to review the September 20, 2011 ruling on Andersen's motion to reconsider, the discussion continued between the court and counsel. Based on the discussion, the court determined the issue of informed consent had been previously closed and it was not going to reopen the issue at that point in the trial. The court stated,

All right. The parties and the Court have taken this case up to this point we're now in the waning days of trial, after a week and a half of trial, operating under the assumption that informed consent was out of the case. I know that there have been some issues back and forth on this topic, but in general, either in terms of offers of proof or other proffers of evidence, nothing has been presented that would suggest that informed consent was going to be a theory of liability for the jury to resolve or at least to preserve for further review. I'm not going to reopen that issue mid-trial to allow for a discussion of whether or not Dr. Khanna should be found liable or negligent for not discussing any increased risks from the surgery that the doctor may be testifying about today.
So I'm not going to reconsider the prior rulings on informed consent, while acknowledging that it is possible that Judge Stovall may have inserted the wrong doctor's name in his [September 20, 2011] ruling regarding whose awareness of the increased mortality risk in apprising Mr. Andersen of the same may have been intended. I don't know if that reference to the doctor's awareness relates to Dr. Khanna or not. I don't see any way to reasonably read that sentence without concluding that perhaps Dr. Cuenoud was inadvertently inserted when Dr. Khanna may have been intended.
But that being said, the parties under the Court's direction have kept this case from being developed as an informed consent case, and that's not going to change mid-trial, with the plaintiffs having rested. And so we'll have to await how that shakes out down the road, but for the remainder of the trial, informed consent is still out.
But the doctor can be examined-Dr. Cuenoud can be examined consistent with his theories on causation regarding the risks that Mr. Andersen posed presurgery and the viability of the decision to be operated on.

         Ultimately, the court ruled Dr. Cuenoud could not testify as to the numerical quantification of the increased risk:

To try to bring this back to a state of balance, I'm going to direct counsel and advise the doctor that he is not to testify regarding his knowledge or opinions regarding the quantification of any increased mortality risk posed to this patient, because I think then we do have a slippery slope on apprisement and the potential for rebuttal. I think he can talk about his opinions as developed on causation that the type of failure experience by Mr. Andersen is common or to be expected or at least an issue that is addressed, but the degree it can be developed initially to be quantified in a way that might open the door to an informed consent claim that I think we have all been operating under the assumption is not available will not be allowed.

         The court's ruling before Dr. Cuenoud's testimony prevented Andersen from eliciting evidence to support his informed-consent claim based on the failure to disclose the increased risk due to his bad heart. Nevertheless, the court acknowledged, if Khanna elicited testimony opening the door to informed consent, it would allow Andersen to pursue the issue.

         Following the testimony of defense expert Dr. Frazier Eales, Andersen argued Khanna opened the door. In his testimony, Dr. Eales was asked if Andersen's heart's presurgery condition would "have an effect on the ventricle's ability to be protected." Dr. Eales responded,

It has a huge effect. It not only has a huge effect on the ability to protect the muscle, but it has an effect on how much reserve, how much reserve strength there is, if you will, following the injury of cardiopulmonary bypass.
When I operate on somebody, I frequently tell them this: I can guarantee that I'll do my best job on the day that we're going to do this operation. And I can guarantee that I'll hurt them. I'll hurt them pretty significantly. It's a big incision. You've got to heal that up. And what we do in our work hurts the heart. It injures the heart. Every time.
The fact we can do this successfully depends on whether the people have reserve capacity in their heart. You know, you don't need to have it working at a hundred percent of possible output in order to do well. And we rely on every patient to have enough reserve there to get through the injury of the heart, the surgery itself, and recover, and recover really well, because we've eliminated the big problem.
Mr. Andersen came to surgery with severe aortic stenosis, severe aortic insufficiency, severe left ventricular hypertrophy, and he had had the bicuspid aortic valve for his entire life. So his heart has been working with an extra workload for a long, long time. There's no question that this was a higher risk operation than the standard elective short procedure.

         Andersen argued Dr. Eales's testimony regarding what he tells his patients put the issue back in the case and the court should allow Andersen to present evidence on that issue in rebuttal. The court disagreed, ruling Dr. Eales's testimony did not open the door to informed consent and not allowing the informed-consent claim to be reintroduced.

         Like the ruling and limitation on Dr. Cuenoud's testimony, this ruling also prevented Andersen from eliciting evidence in support of the informed-consent claim based on failure to disclose the increased risk due to his bad heart.[3] Additionally, Andersen did not develop any damage claim concerning his informed-consent claims because the court removed the issue from the case. As there was no evidence before the jury on any informed-consent issue, the court did not instruct the jury on informed consent.

         The jury concluded Khanna was not negligent in performing the Bentall procedure. Andersen appealed, and we transferred the case to the court of appeals. The court of appeals affirmed the district court. Andersen applied for further review, which we granted. We will discuss additional facts and procedural notes as needed.

         II. Issues.

         Four issues will resolve this appeal. First, we must decide whether the district court erred in granting partial summary judgment when it decided under Iowa law a physician does not have a duty to disclose information about the physician's inexperience or lack of training. Next is whether the district court erred when it did not allow Andersen to proceed on the informed-consent claim based on Khanna's failure to disclose the risk of the surgery considering the bad condition of Andersen's heart. Third is whether a finding by the jury that Khanna was not negligent precludes Andersen's informed-consent claims. Lastly is whether the district court erred when it denied Andersen's request to amend a jury instruction to include an additional, separate specification of negligence.

         III. Scope of Review.

         Our review of summary judgment rulings is for correction of errors at law. Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). "[W]e examine the record before the district court to determine whether any material fact is in dispute, and if not, whether the district court correctly applied the law." Roll v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016) (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999)). "A fact is material when its determination might affect the outcome of a suit. A genuine issue of material fact exists when reasonable minds can differ as to how a factual question should be resolved." Linn v. Montgomery, 903 N.W.2d 337, 342 (Iowa 2017) (citation omitted). We view the record in the light most favorable to the nonmoving party. Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa 2013). "We draw all legitimate inferences the evidence bears that will establish a genuine issue of material fact." Linn, 903 N.W.2d at 342.

         The court treated its ruling at trial that prevented Andersen from introducing evidence regarding the informed-consent issue involving the failure to disclose the risks of the Bentall procedure considering Andersen's bad heart condition as an evidentiary issue. We review evidentiary rulings for an abuse of discretion. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017); Giza v. BNSF Ry., 843 N.W.2d 713, 718 (Iowa 2014). "A court abuses its discretion when its ruling is based on grounds that are unreasonable or untenable." Giza, 843 N.W.2d at 718 (quoting In re Tr. #T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013)). A ground is unreasonable or untenable when it is "based on an erroneous application of the law." Id. (quoting Tr. #T-1 of Trimble, 826 N.W.2d at 718). ...


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