SHARON K. SUSIE, an individual, and LARRY D. SUSIE, an individual, Plaintiffs-Appellants,
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.
from the Iowa District Court for Woodbury County, John D.
appeal the district court decision granting summary judgment
to defendants in this medical malpractice action.
A. Humphrey of Humphrey Law Firm, PC, Des Moines, for
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.
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
Background Facts & Proceedings
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.
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.
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.
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.
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.
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
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. The court granted the
defendants' request for a continuance to permit them to
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.
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.
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."
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.
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.
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 ...