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Vezeau-Crouch v. Abraham

Court of Appeals of Iowa

January 9, 2019

KASSIE RENE VEZEAU-CROUCH, Individually, as Daughter and Administrator of the ESTATE OF TONI ANNETTE VEZEAU, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.

         Dr. Roy Abraham and Miller Orthopedic interlocutory appeal from denial of their motion for summary judgment.

          Kellen B. Bubach and Frederick T. Harris of The Finley Law Firm, PC, Des Moines, for appellants.

          J. Joseph Narmi and Kristina M. Kaeding, Council Bluffs, for appellee.

          Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J. [*]


         Roy Abraham, M.D., and Miller Orthopedic (collectively, "defendants") were granted interlocutory appeal from the district court's denial of their motion for summary judgment. Although there are four specifications of negligence in the petition, this appeal involves only one of them. Specifically, the defendants sought interlocutory relief on the issue of whether Dr. Henry Hull was qualified to testify regarding "Dr. Abraham's diagnosis and treatment of post-operative methicillin-resistant straphylococcus aureus (MRSA)." Related to this issue and also raised in the application for interlocutory appeal is the defendants' contention that Dr. Hull does not provide a causation opinion to support damages and there was no expert testimony to support the wrongful death damages.

         Viewing the record of the expert's qualifications in the light most favorable to the non-moving party, we conclude, at this juncture, the expert is qualified to testify regarding the one specification of negligence: whether Dr. Abraham breached the standard of care and was negligent in failing to culture the post-surgery infection to identify the organism that caused the infection, and this failure resulted in ineffective treatment. We agree with the district court that the plaintiff will still be subject to meeting its burden on the expert's qualifications at the time of trial. Furthermore, we conclude the expert's deposition testimony is sufficient to generate a jury question on causation, including the wrongful death damages. We affirm the district court's denial of summary judgment.

         I. Background Facts and Proceedings.

         Viewed in the light most favorable to the plaintiff, the following facts appear in the summary judgment record. Toni Vezeau fractured her ankle on or about August 1, 2013. Vezeau went to the emergency room at Alegent Health Mercy Hospital ("Mercy") on August 1, 2013, and Dr. Roy Abraham, an orthopedic surgeon, performed open reduction with internal fixation ("ORIF") surgery to repair the fracture on August 2, 2013. At a follow-up appointment on August 20, Dr. Thomas Atteberry removed the dressing, splint, and staples from Vezeau's ankle, and noted, "She is continuing to have some discomfort in the ankle. . . . Incisions appear well healed. No surrounding swelling. Minimal erythema. Easily wiggles her toes. Sensation is within normal limits." Dr. Atteberry also noted x-ray showed "fractures to be appropriately reduced." Dr. Atteberry prescribed Vezeau pain medication and placed her in a padded short-leg cast.

         At Vezeau's one-month follow-up appointment, Dr. Abraham removed the padded cast and noted there was "some mild pus coming out" but that "it looks reasonably healed." Dr. Abraham noted Vezeau continued to complain of pain, and he prescribed her more pain medication. Dr. Abraham noted he told Vezeau this would be her final prescription for pain medication.

         On September 20, Dr. Abraham saw Vezeau again, and noted:

Her ankle did have an episode of mild cellulitis. Today it looks better but still slightly swollen and mildly red, but no drainage. She does complain of pain. ROS: No rise of temperature. No neurological deficits. . . . Examination of the ankle shows good dorsiflexion, plantar flexion, about fifteen to twenty degrees. She has mild redness on the lateral side of the incision. . . . X-rays taken today shows that the ankle has been maintained in excellent position. . . . I am going to arrange for her to start some physical therapy to get her ankle moving. She can weight bear as tolerated. I also will arrange for her to be seen by a pain doctor to manage her pain.

         Vezeau met with Dr. Huy Trinh on September 27. Dr. Trinh noted:

She has been treated for infection with Keflex and Augmentin for almost four weeks with no improvement. She continues to have a lot of pain right ankle. . . . She does full weight bearing. She does not run any fever or chills. . . . On exam there is moderate redness around the lower part of lateral incision. There is minimal drainage. There is moderate swelling of the ankle still. . . . We repeated x-ray right ankle today in the office and shows the fracture of the distal fibula is healing in excellent position. I do not see any lysis.

         Under "Impression," Dr. Trinh wrote, "Deep infection post ORIF of bimalleolar fracture right ankle." Dr. Trinh recommended Vezeau undergo a procedure to drain and possible remove hardware from her right distal fibula. Dr. Trinh further noted,

The patient, due to personal conflict does not want to see Dr. Abraham. With Dr. Atteberry on call I will ask him to perform the surgery tomorrow at Mercy. She will need IV antibiotics. . . . Will put her on Vancomycin to start with after the culture has been done in the OR.

         On September 28, Dr. Atteberry performed the surgery to irrigate and debride Vezeau's wound and to remove a plate and screws from her ankle. Two screws were left in place. On September 30, cultures of the wound indicated a possible MRSA infection. After MRSA was detected, doctors began aggressively treating Vezeau's infection with antibiotics. Vezeau returned for a re-check with Dr. Atteberry on October 29. Dr. Atteberry noted at that time:

She feels the ankle is steadily improving. She is able to walk more easily with less pain. Patient is complaining of her left shoulder. Apparently, she thinks she injured that in the original accident. She states she has also fallen twice since the time of the accident, landing on the shoulder. She notes fairly constant pain in the shoulder. She has difficulty using crutches. . . . ROS: Significant for decreased right ankle pain and swelling. No fevers or chills. . . . Patient's right ankle looks much improved. Incision is well healed. No drainage. No surrounding swelling or erythema. She is able to actively flex and extend the ankle.

         On December 27, Vezeau saw infectious disease physician Dr. Joong Yong Kwon. Dr. Kwon noted Vezeau,

Had initial septic arthritis in 10/2013, at that time two screws on the medial side remained. s/p 7 weeks Dapto, then had recurrence on the medial side and had I&D and HWR done on 11/22/13. Culture grew MRSA again, vanco MIC 2.0 then has been on IV daptomycin and plan to continue through 1/2/2014.

         Vezeau re-injured her ankle while getting out of bed and visited the emergency room at Mercy on February 25, 2014. Vezeau was admitted to the ...

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