MARIA BORJAS and FERMIN GUTIERREZ, Individually, and as parents and next friends of D.G., a Minor, Plaintiffs-Appellants,
STATE OF IOWA, Defendant-Appellee.
from the Iowa District Court for Johnson County, Andrew B.
appellants appeal the district court's grant of summary
A. Diaz, Swisher, for appellants.
Jessica Tucker Glick and Carolyn Russell Wallace of Phelan,
Tucker, Mullen, Walker, Tucker & Gelman, LLP, Iowa City,
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
Borjas and Fermin Gutierrez, parents of their minor child
D.G., appeal the district court's grant of summary
judgment in a medical malpractice suit. The parents argue the
district court should have denied summary judgment for both
the medical-negligence claim and the
negligent-infliction-of-emotional-distress claim. Because the
parents failed to provide expert testimony to support either
claim, we agree summary judgment was appropriate and affirm.
born in December 2005, was previously diagnosed with nemaline
rod myopathy, which is a progressive neuromuscular disease.
According to the parents, prior to the events at issue in the
case, D.G. was stable, functioning independently, and happy.
After developing a persistent cough, the parents brought D.G.
to the University of Iowa Hospitals and Clinics (UIHC) on
March 25, 2013. She was admitted to the hospital for
pneumonia, and the parents allege D.G. had a bronchoscopy and
was intubated during the stay.
23, 2013, the parents again took D.G. to UHIC for a cough and
oxygen desaturation. Staff performed a flexible laryngoscopy.
Later, D.G. began to shake, so staff administered an
anti-seizure medication, and D.G. went into respiratory
failure. Following the two admissions to UIHC, the parents
report D.G.'s functionality decreased. D.G. could not
walk on her own, needed assistance caring for herself, could
not attend school, and became depressed.
parents filed a petition on February 23, 2016, against the
State of Iowa, as the owner and operator of UIHC. The State
of Iowa moved for summary judgment on October 11, asserting
the parents had not made a prima facie showing of medical
negligence. On January 16, 2018, the district court granted
summary judgment. The district court found the parents failed
to provide expert testimony regarding the applicable
standards of care and any violation of those standards. The
review a district court ruling granting a motion for summary
judgment for correction of errors at law." Rathje v.
Mercy Hosp., 745 N.W.2d 443, 447 (Iowa 2008).
"Summary judgment is appropriate if the record shows
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law."
Cawthorn v. Catholic Health Initiatives Iowa Corp.,
806 N.W.2d 282, 286 (Iowa 2011); see also Iowa R.
Civ. P. 1.981(3). "We will view the record in the light
most favorable to the nonmoving party and will grant that
party all reasonable inferences that can be drawn from the
record." Cawthorn, 806 N.W.2d at 286.
parents argue they have presented sufficient evidence to
establish a prima facie case of medical negligence. "To
establish a prima facie case of medical malpractice, a
plaintiff must produce evidence that (1) establishes the
applicable standard of care, (2) demonstrates a violation of
this standard, and (3) develops a causal relationship between
the violation and the injury sustained." Oswald v.
LeGrand, 453 N.W.2d 634, 635 (Iowa 1990).
"Ordinarily, evidence of the applicable standard of
care-and its breach-must be furnished by an expert."
Id. Here, the parents only designated one expert,
Agustin Legido, MD, who opined on causation of D.G.'s
decreased functionality, but he was silent as to the
applicable standards of care or any violation of the
parents further assert they established the applicable
standards of care and the violation of those standards
through a letter and deposition of Timothy Starner, MD, as
well as through Gutierrez's testimony. The district court
found Dr. Starner's "letter set forth
recommendations (not requirements) for future
emergency room visits" instead of providing the
applicable standards of care. Additionally, Gutierrez is not
a licensed physician and does not work in the medical field;
therefore, he is not qualified as an expert capable of
testifying about the standard of care or the violation.
See Iowa Code § 147.139 (2016) (stating the
necessary qualifications for an expert witness testifying
about standards of care and violations of such standards).
Because the parents have failed to present sufficient expert
testimony to establish a prima facie case for medical
negligence, we agree summary judgment was appropriate.
addition, the parents argue the district court should have
denied the motion for summary judgment with regard to the
negligent-infliction-of-emotional-distress claim. The
district court held the parents did not provide medical
testimony to establish the emotional distress claim and, even
viewing the record in the light most favorable to the
parents, the record did not support the claim. A
negligent-infliction-of-emotional-distress claim may arise
"where the nature of the relationship between the
parties is such that there arises a duty to exercise ordinary
care to avoid causing emotional harm." Oswald,
453 N.W.2d at 639. In Oswald, our supreme court held
expert testimony was not necessary to prove medical
staff's statements were "rude and uncaring,"
because "a lay fact finder could easily evaluate the
statements in light of the surrounding circumstances to
determine whether the language used or message conveyed
breached the standard of care expected of medical
professionals." Id. However, the court
emphasized the holding was "closely limited to [the
case's] facts." Id. at 639-40. Here, unlike
the verbal statements made in Oswald, the parents
allege the emotional distress stems from the physician
ignoring Gutierrez's wishes for treating his daughter and
assert "[a] jury could reasonably find that ignoring the
wishes of the parents of a disabled child with a resulting
respiratory distress, seizure and ICU stay would be expected
to cause them emotional distress." The district court
found "[t]he record simply does not show that Ms. Borjas
and Mr. Gutierrez ...