JULIE A. EMBRING, Plaintiff-Appellant,
OB-GYN SPECIALISTS, P.C. and BRETT R. RICHMAN, M.D., Defendants-Appellees.
from the Iowa District Court for Black Hawk County, David P.
patient alleging medical malpractice appeals the grant of
summary judgment to the medical doctor and health care
A. Luthens of Luthens Law Offices, PC, West Des Moines, for
Jennifer E. Rinden and Kerry A. Finley of Shuttleworth &
Ingersoll, PLC, Cedar Rapids, for appellee OB-GYN
(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.
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.
Background Facts and Proceedings
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.
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.
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.
December 20, the district court granted Dr. Richman and
OB-GYN Specialist's motion for summary judgment. Embring