LARRY D. EISENHAUER, Conservator, ex rel. CONSERVATORSHIP OF T.D., Appellant,
THE HENRY COUNTY HEALTH CENTER, JAMES WIDMER, and FAMILY MEDICINE OF MT. PLEASANT, P.C., Appellees.
from the Iowa District Court for Henry County, Mark Kruse,
appeals district court's entry of the jury verdict
dismissing a medical malpractice case.
Jeffrey L. Goodman, Nicole L. Keller, and Daniel Peacock
(until withdrawal) of Goodman Law, P.C., West Des Moines, and
Michael J. Moreland of Harrison, Moreland, Webber &
Simplot, P.C., Ottumwa, for appellant.
Jennifer E. Rinden, Robert D. Houghton, and Nancy J. Penner
of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for
appellee Henry County Health Center.
V.P. Waterman Jr., Mikkie R. Schiltz, and Alexander C.
Barnett of Lane & Waterman, LLP, Davenport, for appellees
James Widmer and Family Medicine of Mt. Pleasant, P.C.
medical malpractice case concerns plaintiff's suit
against defendants for negligent acts or omissions during
plaintiff's birth. Defendants encountered the medical
emergency of shoulder dystocia after plaintiff's shoulder
became stuck on his mother's pelvis. Defendants performed
maneuvers to resolve the stuck shoulder, but plaintiff was
born with a permanent injury to his left arm preventing
normal use and function. The jury returned a defense verdict
and the district court dismissed plaintiff's claims. On
direct appeal, we first consider whether the district court
committed reversible error in the specifications of
negligence it submitted to the jury. We also consider whether
the district court abused its discretion when it prohibited
plaintiff from offering evidence of defendants'
continuing medical education credits. Next, we are asked to
determine whether the district court properly admitted expert
opinion testimony. Lastly, we determine whether limiting the
jury's access to evidence during deliberations was within
the district court's discretion.
reasons expressed below, we conclude the plaintiff's
proffered instructions were sufficiently encompassed by the
instructions submitted or, in the alternative, were not
supported by substantial evidence. We further conclude the
district court did not abuse its discretion in prohibiting
the plaintiff from introducing continuing medical education
records to show a breach in the standard of care. However,
although it was an abuse of discretion for the district court
to prohibit the use of continuing medical education records
as impeachment evidence, the error was harmless. Next, we
determine defendants' expert opinion testimony was
properly disclosed and did not reflect an opinion in
anticipation of litigation. We further determine the district
court did not abuse its discretion in limiting the jury's
access to video evidence during deliberation; it was a
judgment call for the district court to make.
Background Facts and Proceedings.
was born on August 31, 2007, at the Henry County Health
Center (HCHC). Dr. Widmer, employed by Family Medicine of Mt.
Pleasant, P.C.,  was the physician in charge of T.D.'s
prenatal care and delivery. Many of the facts surrounding
T.D.'s birth are not disputed. During the delivery,
T.D.'s head delivered but his left shoulder became stuck
on his mother's pelvis. This situation, a shoulder
dystocia, is a medical emergency because the infant's
delay in birth may cause severe brain damage or death if not
resolved in six minutes or less. Dr. Widmer and the nurses
performed maneuvers that resolved the shoulder dystocia in
one minute and ten seconds. However, T.D. was born with a
permanent injury to his left brachial plexus preventing
normal use and function of his arm. T.D.'s delivery was
captured on a twenty-one minute birth video recorded by
through a conservator,  filed a medical malpractice action on
March 10, 2016, in Henry County alleging defendants were
negligent during labor and delivery, causing injury. Nearly a
year and a half later, T.D. filed a motion for leave to amend
and substitute his original petition. Defendants resisted,
citing concerns that T.D. was raising new claims of negligent
training and credentialing for the first time less than sixty
days before trial. On October 13, 2017, after an evidentiary
hearing, the district court determined T.D.'s proposed
amendment "that adds a new claim of negligent training
does 'substantially change the issues or defenses of the
case.' Allowing the amendment would prejudice the defense
in this case." It ruled,
The primary issues in this case remain as to what the
applicable standard of care was on the date in question and
whether there was a violation of this standard with a causal
relationship to the injury.
To the extent there may be any reference in the [a]mended
[p]etition that relates to a theory of recovery based on
negligent training or credentialing, the amendment is denied.
district court later granted defendants' motion in limine
relating to, among other things, any reference to either
HCHC's training and credentialing process or Dr.
Widmer's training as a family practice physician,
including his Continuing Medical Education (CME) records.
commenced on November 7, 2017, and concluded on November 17.
Both parties offered expert testimony to support their
respective positions. T.D. offered the birth video into
evidence without objection. At the close of his
case-in-chief, T.D. sought to admit Dr. Widmer's CME
records and made on offer of proof. The district court
affirmed its prior ruling and prohibited T.D. from offering
evidence of the CME records.
During direct examination by defendants, Dr. Widmer
Q. Do you have an opinion as to whether the maneuvers you
used were in conformity with the standard of care?
MR. GOODMAN: Undisclosed opinion.
THE COURT: Overruled.
A. I believe I did.
sixth day of trial, during redirect examination, Dr. Widmer
referred to a single page of handwritten notes. He testified
to creating the notes when he reviewed the birth video and
stated his notes would assist in recalling the times he heard
fetal heart rates without the need to watch the entire birth
video. Defendants later moved to admit the notes as
deliberations, the jury asked to view the birth video, which
was not submitted to the jury for deliberations. The district
court complied with the request and played the video for the
jury once in its entirety. Over plaintiff's objections,
the birth video was not sent back to the jury room during
deliberations but could be viewed an additional time upon
request by the jury. Such a request was made and the video
was again played in its entirety. Subsequently, the jury
returned a verdict for defendants, finding neither HCHC's
nurses nor Dr. Widmer were negligent. Consequently, the jury
did not reach the question of causation or damages.
district court, based upon the jury's verdict, entered an
order dismissing T.D.'s claims. T.D. appealed the
district court order, and we retained the appeal.
Standard of Review.
standard of review for jury instructions is for prejudicial
error by the district court. Thavenet v. Davis, 589
N.W.2d 233, 236 (Iowa 1999) (en banc). Therefore, a district
court's refusal to give a requested jury instruction is
reviewed for correction of errors at law. See Alcala v.
Marriott Int'l, Inc., 880 N.W.2d 699, 707 (Iowa
2016). "Instructions must be considered as a whole, and
if the jury has not been misled there is no reversible
error." Thavenet, 589 N.W.2d at 236. "In
considering whether the instruction is supported by
substantial evidence, we give the evidence the most favorable
construction it will bear in favor of supporting the
instruction." Asher v. OB-Gyn Specialists,
P.C., 846 N.W.2d 492, 496-97 (Iowa 2014), overruled
by Alcala, 880 N.W.2d at 707-08, 708 n.3.
district court's decision to admit relevant evidence is
reviewed for an abuse of discretion. See Mohammed v.
Otoadese, 738 N.W.2d 628, 631 (Iowa 2007). "An
abuse of discretion occurs when 'the court exercise[s]
[its] discretion on grounds or for reasons clearly untenable
or to an extent clearly unreasonable.'" Graber
v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (en
banc) (alteration in original) (quoting Waits v. United
Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997)).
Grounds or reasons are clearly untenable if they are not
supported by substantial evidence or if they are based on an
erroneous application of law. Id. "A party may
claim error in a ruling to admit or exclude evidence only if
the error affects a substantial right of the party . . .
." Iowa R. Evid. 5.103(a).
review whether a district court properly admitted expert
testimony for abuse of discretion. See Hansen v. Cent.
Iowa Hosp. Corp., 686 N.W.2d 476, 479 (Iowa 2004).
"[s]ubmission of exhibits to the jury is a matter
resting in [the] trial court's discretion."
Brooks v. Holtz, 661 N.W.2d 526, 532 (Iowa 2003)
(alteration in original) (quoting Heth v. Iowa City,
206 N.W.2d 299, 303 (Iowa 1973)).
Specifications of Negligence.
first consider whether there was reversible error in the
district court's specifications of negligence. In a
medical malpractice action, "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). The questions respecting the
violation of a standard of care and the causal relationship
are ordinarily for the trier of fact. See Speed v.
State, 240 N.W.2d 901, 904 (Iowa 1976).
plaintiff is required to identify the specific acts or
omissions relied upon to generate questions for the trier of
fact. See Herbst v. State, 616 N.W.2d 582, 585
(2000) (en banc). As we explained in Herbst,
"Jury instructions should be formulated so as to require
the jury to focus on each specification of negligence that
finds support in the evidence." Id. (quoting
Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995)).
Put another way, a party is entitled to have its legal theory
submitted to the jury if that theory is supported by
substantial evidence. See Ludman v. Davenport Assumption
High Sch., 895 N.W.2d 902, 919-20 (Iowa 2017).
course, whether a jury instruction sufficiently encompasses
each specification of negligence alleged by a plaintiff is
determined by the facts of the particular case. See
Herbst, 616 N.W.2d at 586. Iowa law requires a court
give a requested instruction as long as the instruction is a
correct statement of law, is applicable to the case, and is
not otherwise embodied elsewhere in the instructions. See
Ludman, 895 N.W.2d at 919; Porter v. Iowa Power
& Light Co., 217 N.W.2d 221, 234 (Iowa 1974). This
principle, however, does not require a court give
instructions that provide undue emphasis to any particular
aspect of the case, Burkhalter v. Burkhalter, 841
N.W.2d 93, 106 (Iowa 2013), or that duplicate specifications
adequately encompassed elsewhere in the instructions,
Porter, 217 N.W.2d at 233-34.
challenges the manner in which the district court instructed
the jury on his specific claims of negligence. Regarding Dr.
Widmer, T.D. proposed the following instruction with six
Dr. Widmer was negligent by failing to meet the standard of
care in the following way: a. Repeatedly directing [mother]
to push after shoulder dystocia was identified and traction
failed to deliver the stuck shoulder; or
b. Applying improper traction to [T.D.]'s head or neck
during the delivery;
c. Failing to properly and effectively supervise, direct, or
coordinate the efforts of the delivery team;
d. Mistakenly concluding that [T.D.] was experiencing
bradycardia and as a result, delivering [T.D.] hastily and
without due care;
e. Failing to follow the HCHC policy on Shoulder Dystocia, or
Vacuum Extraction, or Pitocin;
f. Failing to properly and effectively use maternal and fetal
maneuvers to safely deliver [T.D.] after shoulder dystocia
occurred, including, but not limited to: McRoberts maneuver,
suprapubic pressure, Wood's screw, reverse Wood['s]
screw (Rubin's), delivering the posterior arm, and
district court whittled down T.D.'s proposed
specifications about Dr. Widmer and instructed the jury on
the following specifications of negligence:
Widmer was negligent by failing to meet the standard of care
in one or more of the following ways:
(a) in failing to direct or coordinate proper maneuvers to
deliver the baby after the recognition of shoulder dystocia;
(b) by applying excessive or improper traction in an effort
to deliver him after the recognition of shoulder dystocia;
the nurses, T.D. proposed the following instruction with five
Either nurse or both Rebecca Fraise, R.N. and Yvonne Sloan,
R.N. were negligent by failing to meet the standard of care
in the following way:
a. Repeatedly directing [mother] to push after shoulder
dystocia was identified and traction failed to deliver the
b. Failing to follow the HCHC policy on Shoulder Dystocia or
c. Failing to properly and effectively perform the McRoberts
maneuver and suprapubic pressure, to safely deliver [T.D.]