KASSIE RENE VEZEAU-CROUCH, Individually, as Daughter and Administrator of the ESTATE OF TONI ANNETTE VEZEAU, Plaintiff-Appellee,
ROY ABRAHAM, M.D. and MILLER ORTHOPEDIC, Defendants-Appellants, and ALEGENT HEALTH SYSTEMS, d/b/a CHI HEALTH and d/b/a MERCY HOSPITAL; JIANT PROPERTIES, LLC; ANTHONY AND JILL MISCISKIA, Defendants.
from the Iowa District Court for Pottawattamie County,
Jeffrey L. Larson, Judge.
Abraham and Miller Orthopedic interlocutory appeal from
denial of their motion for summary judgment.
B. Bubach and Frederick T. Harris of The Finley Law Firm, PC,
Des Moines, for appellants.
Joseph Narmi and Kristina M. Kaeding, Council Bluffs, for
by Potterfield, P.J., Doyle, J., and Danilson, S.J. [*]
DANILSON, SENIOR JUDGE.
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.
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.
Background Facts and Proceedings.
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.
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.
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.
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
"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.
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.
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
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 ...