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Susie v. Family Health Care of Siouxland, P.L.C.

Court of Appeals of Iowa

November 7, 2018

SHARON K. SUSIE, an individual, and LARRY D. SUSIE, an individual, Plaintiffs-Appellants,
v.
FAMILY HEALTH CARE OF SIOUXLAND, P.L.C., d/b/a FAMILY HEALTH CARE OF SIOUXLAND URGENT CARE, a professional limited liability company; and SARAH HARTY, P.A.C., an individual, Defendants-Appellees.

          Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

         Plaintiffs appeal the district court decision granting summary judgment to defendants in this medical malpractice action.

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

          Jack D. Hilmes, Erik P. Bergeland, and Kellen B. Bubach of Finley Law Firm, PC, Des Moines, for appellees.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          BOWER, JUDGE.

         Sharon and Larry Susie appeal the district court decision granting summary judgment to defendants in this medical malpractice action. We determine the district court improperly granted summary judgment to defendants on the issue of negligence and the issue of lost chance of a cure. Plaintiffs presented adequate expert testimony on a causal relationship between the defendants' actions and the injury sustained. We reverse the decision of the district court and remand for further proceedings.

         I. Background Facts & Proceedings

         On September 22, 2012, Sharon Susie tripped on a rug in her living room and fell on her right arm. She stated it felt like she had a rug burn and bruising. Her condition did not improve. Sharon stated, "I felt there was something seriously wrong. It hurt really bad." She stated she had a shooting pain in her arm.

         On September 29, Sharon went to Family Health Care of Siouxland Urgent Care (Family Health Care), where she saw Sarah Harty, a physician's assistant. Harty ordered an x-ray of Sharon's arm, which showed no broken bones but "moderate soft tissue swelling about the elbow joint dorsally." Harty noticed swelling, bruising, tenderness to palpitation, and limited range of motion in Sharon's right arm. Sharon's temperature was 99.7 degrees and she felt like she was going to faint. Harty gave Sharon a shot for pain and a prescription for pain pills. Sharon was advised to see her regular physician in two days if her condition did not improve.

         The next day, September 30, Sharon's adult son, Brian Susie, stopped by to see her in the morning and found she was extremely ill. Sharon's husband, Larry Susie, took her to the emergency room at Mercy Hospital Medical Center in Sioux City. Sharon was diagnosed with septic shock and kidney failure. She was placed on intravenous antibiotics. Sharon's condition continued to deteriorate and doctors determined she had necrotizing fasciitis, also known as flesh-eating disease. On October 2, Sharon's right arm was amputated in order to stop the progression of the disease which was life threatening. The medications she received reduced blood-flow to her extremities and, consequently, eight of her toes were amputated. She was discharged from the hospital on November 6.

         On September 26, 2014, Sharon and Larry (Susies) filed an action against Family Health Care and Harty (defendants), claiming defendants were negligent because Sharon's condition was not properly diagnosed and she did not receive timely treatment from defendants. The Susies also claimed defendants' actions resulted in the loss of a chance to save Sharon's arm and toes from amputation.

         The Susies designated Dr. John Crew as an expert. The Susies provided an expert witness summary pursuant to Iowa Rule of Civil Procedure 1.508. Dr. Crew was expected to testify Sharon should have been given a blood test at the time she went to Family Health Care, which would have shown an infection. Dr. Crew stated Sharon should have been prescribed antibiotics, not pain medication, on September 29, 2012. In Dr. Crew's opinion, "had the infection been diagnosed and treatment commenced immediately, the spread of the infection could have been avoided, the infection would not have become systemic; and the amputation of Sharon's arm and toes would more likely than not been avoided." The defendants deposed Dr. Crew on November 10, 2015.

         On March 2, 2016, defendants filed a motion in limine, seeking to prohibit the Susies' experts-Dr. Crew and Jeffrey Nicholson, a physician's assistant- from offering causation opinions. Defendants claimed "Plaintiffs' experts have utterly failed to establish that, more likely than not, Sharon Susie's ultimate outcome would have been changed if antibiotics were administered and prescribed on September 29, 2012." The district court ruled the issue of whether the Susies had presented "sufficient testimony on the causation issue to submit the matter to the jury" would be determined "at the end of the plaintiffs' case-in-chief."

         Shortly before the scheduled trial date of March 8, 2016, the defendants filed a motion to preclude testimony from Brian Susie and the Susies' mail carrier, Jody Russell, concerning their observations of an abrasion on Sharon's arm in the days before she was seen by Harty at Family Health Care. The defendants stated they had previously only been informed of proposed testimony from these witnesses concerning bruising of Sharon's arm. The Susies resisted the defendants' motion.[1] The court granted the defendants' request for a continuance to permit them to conduct depositions.

         The trial was rescheduled for May 9, 2017. Prior to the new trial date, the Susies' designated expert, Dr. Crew, died. On April 11, 2017, the Susies' designated Dr. Roger Schechter as an expert witness. Dr. Schechter is a specialist in chronic wound care who treats patients with necrotizing soft tissue diseases, such as necrotizing fasciitis. The rule 1.508 summary of Dr. Schechter's opinion stated:

Dr. Schechter will also opine to a reasonable degree of medical probability regarding the treatability of Sharon Susie's infection at the point of time she presented to the urgent care clinic on September 29, 2012. He is expected to testify that had the infection been diagnosed on the day of her visit to the clinic, and treatment initiated immediately, the spread of the infection, more likely than not, could have been avoided, the infection would not have become systemic; and the amputation of Sharon's arm and toes would more likely than not have been avoided.

         Dr. Schechter's deposition was taken on April 25, 2017. Dr. Schechter testified he had the ability to diagnose necrotizing soft tissue infections. Dr. Schechter testified, "I shared [Dr. Crew's] opinions regarding the diagnosis and the management that was underwent by plaintiff." In the deposition he stated,

Q. Or are you here to say that Sharon Susie's arm was cut off because of Sarah Harty?
A. I'm not here to say her arm was cut off because of Sarah Harty. I'm here to say that she became ill and septic because she wasn't given a thorough enough evaluation and follow-up.

         Dr. Schechter stated Sharon should have been given a blood test to determine if she had an infection. He stated, "The sooner you initiate supportive care and the appropriate care, the lesser the potential for deterioration, especially in a situation such as infection." Dr. Schechter also testified, "I would say it's a significant possibility ranging as high as probability that early intervention with antibiotics could have either at least reduced the progression of the infection or slowed its progression and potentially have averted as much tissue loss as she experienced."

         Defendants filed a motion for summary judgment on May 4, 2017, claiming the Susies did not have adequate expert testimony to support their causation claims. They claimed Dr. Schechter provided only speculation as to whether the administration of antibiotics would have made a difference to the outcome of the case. The defendants claimed Sharon had necrotizing fasciitis at the time she saw Harty on September 29, 2012. Necrotizing fasciitis causes the destruction of cells. If the cells are no longer receiving blood, they no longer receive antibiotics if they are administered. The defendants claim even if Sharon had been given antibiotics on September 29, 2012, it would not have helped her condition. Defendants noted the Susies' experts could not express any opinions beyond that found in the rule 1.508 summaries.

         The Susies resisted the motion, stating the court should deny the motion for the same reasons the defendants' motion in limine was denied in March 2016. The Susies claimed Sharon had cellulitis, a skin infection, on September 29, 2012, which could have been treated with antibiotics, and the cellulitis developed into necrotizing fasciitis by the next day. The Susies stated the court should consider Dr. Schechter's rule 1.508 summary and his deposition testimony. They additionally pointed out Dr. Daniel Lamptey, an infectious disease specialist who treated Sharon, stated she had a bacterial infection, which had progressed to necrotizing fasciitis. Dr. Lamptey stated, "[T]he sooner you can see a patient with an infectious condition and start the antibiotics, the better the likelihood you can have some impact on the progression of this disease into something more serious." Dr. William Rizk, the surgeon who amputated Sharon's arm, stated, "If you get the antibiotics on board early, they usually work." Also, defendants' expert, Dr. Ravi Vemuri, an infectious disease specialist, stated Sharon had an infection caused by a type of bacteria which can be treated with antibiotics. The Susies claimed the entire record showed summary judgment was not appropriate on the issue of causation.

         A hearing on the motion for summary judgment was held on May 8, 2017, and the court ruled from the bench, as follows:

Okay. It's clear to me even-and I know, Mr. Humphrey, you wanted to make sure I read all your other physician stuff. I did that. I still believe and I find that there is no-that you don't have the necessary expert more likely than not causation evidence to get the claim to a jury.
Now, Schechter, every time he was really forced or asked the major question, he said speculation, I don't know what the outcome would have been, may have made a difference. I don't care what's in his 1.508 because when you're asked under oath in a deposition, are these your final opinions, he's stuck with those. And he didn't give more likely than not in his deposition.
Your plaintiff's treating physicians basically said, listen, the earlier you get antibiotics, the better chance you have. What's the other phrase? Time is tissue. Lamptey said it may well stop it from progressing. Rizk says, well, if you get antibiotics early, they usually work. Let's see. Where's the other one? Earlier the antibiotics, better likely the outcome for the patient. I think all your treaters said that.
The problem is-with that is they did not give an opinion in this case with these facts whether or not it would have made a difference. What it does normally ...

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