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Embring v. OB-GYN Specialists, P.C.

Court of Appeals of Iowa

September 12, 2018

JULIE A. EMBRING, Plaintiff-Appellant,
v.
OB-GYN SPECIALISTS, P.C. and BRETT R. RICHMAN, M.D., Defendants-Appellees.

          Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         A patient alleging medical malpractice appeals the grant of summary judgment to the medical doctor and health care facility.

          Erik A. Luthens of Luthens Law Offices, PC, West Des Moines, for appellant.

          Jennifer E. Rinden and Kerry A. Finley of Shuttleworth & Ingersoll, PLC, Cedar Rapids, for appellee OB-GYN Specialists, P.C.

          John (Jack) D. Hilmes and Aaron J. Redinbaugh of Finley Law Firm, PC, Des Moines, for appellee Brett R. Richman, M.D.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          VOGEL, Judge.

         Julie Embring filed a medical malpractice action against Dr. Brett Richman and OB-GYN Specialists, P.C. Dr. Richman and OB-GYN Specialists sought and were granted summary judgment on the ground that Embring's lack of expert testimony on the standard of care prevented her from establishing a prima facie case of medical negligence.

         I. Background Facts and Proceedings

         The facts as alleged by Embring are that she underwent a hysterectomy, performed by Dr. Richman on March 19, 2013, to correct internal bleeding that resulted from her giving birth on November 30, 2012. On approximately March 26, 2013, Embring suffered severe abdominal pain that Dr. Richman opined was likely the flu. On May 21, Embring again suffered from severe abdominal pain and Dr. Richman advised her that an abdominal hematoma ruptured. Embring suffered from an infection for the remainder of 2013. In January 2014, Embring underwent bilateral ilioinguinal nerve entrapment surgery.

         On December 1, 2014, Embring filed a medical malpractice petition alleging Dr. Richman and OB-GYN Specialists were negligent in performing the hysterectomy and in treating the resulting infection, and that such negligence was the proximate cause of her damages. OB-GYN Specialists filed an answer on March 17, 2015, and Dr. Richman filed his answer on March 30; both denied the claims. Embring designated Dr. Gary Milzer and Dr. Brian Locker as expert witnesses for trial. Embring received a written opinion on the standard of care from Dr. Milzer prior to trial but did not receive an opinion from Dr. Locker. Dr. Milzer died on October 8, 2016. In March 2017, upon learning of Dr. Milzer's death, Embring notified Dr. Richman and OB-GYN Specialists that she would be contacting Dr. Locker to provide an opinion on the standard of care. Embring then contacted Dr. Locker on September 5, 2017. Dr. Locker subsequently informed Embring he was unable to testify as to the standard of care as requested.

         On November 8, 2017, Dr. Richman and OB-GYN Specialists filed a joint motion for summary judgment asserting Embring could not present an expert witness to establish a prima facie claim of medical negligence, citing Iowa Code section 668.11 (2014), and without such expert testimony, Dr. Richman and OB-GYN Specialists were entitled to judgment as a matter of law. On November 13, Embring filed a motion to continue, and on November 27, Embring filed a motion to enlarge time to file her resistance to summary judgment and a motion to enlarge the expert witness designation deadline. The district court denied Embring's motions on December 18.

         On December 20, the district court granted Dr. Richman and OB-GYN Specialist's motion for summary judgment. Embring appeals.

         II. ...


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