review from the Iowa Court of Appeals.
from the Iowa District Court for Pottawattamie County,
Gregory W. Steensland, Judge.
Mumm seeks further review of a court of appeals decision
affirming a district court's denial of her motion for a
Randall J. Shanks and Emily A. Shanks Warren (until
withdrawal) of Shanks Law Firm, Council Bluffs, for
Michael W. Ellwanger and Laura L. Mommsen (until withdrawal)
of Rawlings, Ellwanger, Mohrhauser, Nelson & Roe LLP,
Sioux City, for appellee Jennie Edmundson Memorial Hospital.
J. Shomaker, Mary M. Schott, and Robert A. Mooney of Sodoro
Daly Shomaker PC LLO, Omaha, Nebraska, for appellees
Emergency Physicians of Western Iowa, L.L.C. and Paul C.
case raises the recurring question of how to respond to jury
questions during deliberations.
individual who had been confined in a halfway house suffered
a disabling stroke. She sued both the halfway house and an
attending emergency room physician at a nearby hospital. She
alleged that the halfway house failed to get her needed
medical attention and that the physician rendered negligent
care, thereby leading to delayed detection and treatment of
the stroke. Before trial, she settled with the halfway house
and continued to pursue her claim against the physician. The
halfway house was listed on the verdict form as a potential
nonparty at fault.
deliberations, the jury asked, "If we attribute 25%
fault to [the physician] and 75% to [the halfway house] would
[the plaintiff] only get 25% since [the halfway house] has
been released?" The jury also asked, "If [the
halfway house] has been released how [is it] still named in
the lawsuit?" The district court answered both questions
by directing the jury back to the original instructions,
although those instructions did not explain the effect of any
fault allocation. Thereafter, the jury returned a verdict
that the physician was not negligent and, as advised by the
verdict form, stopped there.
from a denial of her motion for new trial, the plaintiff
argues that the district court should have answered
"yes" to the jury's first question. The court
of appeals found no abuse of discretion and affirmed. On
further review, we likewise find no abuse of discretion.
Although the district court could have-and probably should
have-given an affirmative answer to the first question, we
are unable to find any prejudice on this record. The jury
surely understood that its verdict would result in
no damages being awarded against the physician;
therefore, any jury confusion as to whether an award of
some damages would be reduced was immaterial.
Furthermore, the plaintiff has not provided us with a
transcript of any portion of the trial, making it even more
difficult to find potential prejudice. Accordingly, we affirm
the decision of the court of appeals and the judgment of the
Facts and Procedural History.
no transcript was ordered of the jury trial, our summary of
the facts is necessarily somewhat limited. Mandi Mumm's
appellate brief cites to her petition, not to the trial
record, for factual support.
some facts appear to be undisputed. In early 2014, when she
was thirty-three years old, Mumm was released from federal
prison into a halfway house operated by CH, Inc. under a
contract with the Federal Bureau of Prisons.
February 11, 2014, Mumm became ill and received permission to
go to a clinic for medical care. She had complaints of
headache, neck pain, and dizziness. Her diagnoses were
headache and acute sinusitis. After being seen by the clinic
and prescribed one medication, she returned to the CH halfway
February 14, Mumm was still not feeling well and received
permission to go to the emergency room of Jennie Edmundson
Hospital in Council Bluffs. Mumm complained of a worsening of
her headache, nausea, dizziness, and vomiting. She reported
that she had a history of migraines. She was seen by an
emergency room physician, Dr. Paul Mileris. Dr. Mileris
ordered a CT exam of her head that was reported as normal.
Mumm was treated with medication and released back to the
condition did not improve at CH. According to Mumm's
petition, on February 16, she became very ill and began
exhibiting signs of a stroke. She looked ill, she was
sweating, her throat was swollen, she could not breathe, and
the right side of her face was drooping. However, Mumm was
not released by CH to return to the emergency room for
approximately twenty-four hours.
February 17, at approximately 10:30 p.m., Mumm arrived again
at the emergency room. She was triaged at 10:40 p.m. and seen
by Dr. Mileris at 11:29 p.m. An MRI of her brain was
performed, and it was determined that she was suffering a
cerebral stroke with vertebral dissection. She was
transferred to the University of Nebraska Medical Center
later in the morning where she remained hospitalized for
approximately two months. Mumm remains confined today to a
wheelchair and suffers bilateral paralysis.
November 12, 2015, Mumm filed suit in the Pottawattamie
County District Court against CH. The next day, she amended
her petition to add Sidney Strnad, a supervisor at CH. On
February 9, 2016, Mumm filed a motion to amend her petition
to add Dr. Mileris, Emergency Physicians of Western Iowa,
L.L.C. (Dr. Mileris's employer), and Jennie Edmundson
Hospital as defendants. On July 25, Mumm dismissed CH and
Strnad, having reached a settlement with them. On September
22, Mumm amended her petition a third time.
trial commenced on August 28, 2017. By the time of trial, the
parties had agreed there was no independent claim of
liability against the hospital; its liability, if any,
derived from that of Dr. Mileris. Trial proceeded for eight
case was submitted to the jury on September 8. The statement
of the case had explained to the jury that Dr. Mileris denied
any negligence and claimed that it was CH's negligence
that caused injury to Mumm.
22, the marshalling instruction, stated,
In order for Mandi Mumm to recover against Dr. Paul Mileris,
she must prove all of the following propositions:
1. That Dr. Mileris was negligent on February 14, 2014, for
failing to use the degree of skill, care and learning
ordinarily possessed and exercised by other emergency room
physicians in similar circumstances.
2. That his negligence caused injury and damage to Mandi
3. The amount of damages.
If the Plaintiff has failed to prove any of these
propositions, she is not entitled to damages. If the
Plaintiff has proved all of these propositions, the Plaintiff
is entitled to damages in some amount, and you will then
compare the fault of Dr. Mileris ...