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Tamayo v. Debrah

Court of Appeals of Iowa

October 10, 2018

MICHELLE TAMAYO, Plaintiff-Appellant,
v.
CHARLES A. DEBRAH, M.D., an individual, MERCY HEALTH SERVICES -IOWA, CORPORATION d/b/a MERCY MEDICAL CENTER - NORTH IOWA and d/b/a MERCY HOME CARE - NORTH, IOWA, Iowa Corporations, Defendants-Appellees.

          Appeal from the Iowa District Court for Cerro Gordo County, Christopher Foy, Judge.

         Plaintiff appeals the district court's ruling granting summary judgment in favor of defendants on a medical malpractice action.

          Marc A. Humphrey of Humphrey Law Firm, PC, Des Moines, for appellant.

          Connie M. Alt and Desirée A. Kilburg of Shuttleworth & Ingersoll, PLC, Cedar Rapids, for appellees.

          Heard by Vaitheswaran, P.J., and Mullins and McDonald, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         Michelle Tamayo contracted a deep-tissue infection following surgery. She filed a medical malpractice action against Dr. Charles Debrah, who performed the surgery, as well as Mercy Health Services-Iowa Corporation, d/b/a Mercy Medical Center-North Iowa. The district court (1) struck her expert witnesses for failure to timely designate them and (2) granted summary judgment in favor of the defendants. On appeal, Tamayo challenges both rulings.

         I. Ruling Striking Experts

         Iowa Code section 668.11 (2015), governing the designation of experts in a medical malpractice action, states:

1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert's name, qualifications and the purpose for calling the expert within the following time period:
a. The plaintiff within one hundred eighty days of the defendant's answer unless the court for good cause not ex parte extends the time of disclosure.
. . . .
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert's ...

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