*1 сontends he did not con- The defendant Bryson The ESTATE OF HAGEDORN person. argues He to a of his
sent search By Administrator, Its Dawn told the defendant that HAGE Meskimen Officer DORN, Hagedorn knife, Dawn and Pete and the Meskimen would remove the Hagedorn, Individually, Appellants, to facilitate defendant then raised his arms the officer’s retrieval of the knife. But the testimony of all three officers was to the Jeffry PETERSON, and North Iowa contrary. Although their reсollections Mercy Mercy Center, Health Inc. d/b/a as to whether Meskimen varied Officer Family Clinic-Spencer, Appellees. defendant if he could search the asked the removing defendant before or after No. 03-1794. pocket, they all knife from Reinders’ testi- Supreme Court of Iowa. permission fied Meskimen asked for and the defendant search defendant Dec. gave requested permission. The dis- testimony trict court found be cred- and we to that
ible defer court’s assess- Therefore, we,
ment. like the district
court, conclude the defendant consented to pocket. Consequently, search his rights
his Fourth Amendment were not
violated the warrantless search.
V. Conclusion.
The defendant was not seized when the
officers for identification asked
checked for outstanding warrants. The
subsequent search of the defendant was
conducted after he his consent.
Therefore, the trial court did not err
denying the defendant’s motion to sup-
press. Accordingly, agree we with the
court of appeals that the defendant’s con-
viction must be affirmed.
DECISION OF COURT OF AP-
PEALS AND JUDGMENT OF DIS-
TRICT COURT AFFIRMED. justices LARSON, J.,
All except concur part.
who takes no *2 experienced significant bleeding
she afternoon, Saturday Hage- March Spencer Municipal Hospi- dorn went to the tal where she was treated *3 call, Peterson, Jeffry family on defendant a practitioner. suspected Dr. Peterson plaintiff placental abruption, had a a ma- hemorrhаge posed ternal serious risks progress- to the fetus and the mother if it The ed. defendant decided to monitor Hagedorn’s making condition while ar- rangements tertiary for her transfer to a offering specialized care center services high-risk for Dr. deliveries. Peterson was abruption aware that if the to progressed Galligan Michael J. and Richard H. point baby receiving was not ade- Reid, P.C., Doyle Galligan, Doyle & Des quate oxygen, roughly he would have fif- Moines, Jim Fitzsimmons Fitzsimmons baby by teen minutes to deliver the Firm, cesa- City, & Law Vervaeeke Mason and permanent injury Kathleen J. Beebout of rean section to avoid to Beebout Law Firm, Moines, appellants. West Des for the child. Because Dr. not Peterson did sections, perform began cesarean he mak-
Roberta M. Anderson of Schroeder & ing phone up personnel calls to line who Anderson, City, аppellees. Mason for baby could deliver the in and assist TERNUS, Justice. infant’s resuscitation if that became neces- not, however, This action brought by parents sary.1 Dr. Peterson did ac- an shortly infant who died after his tually a surgical mobilize team at time. premature plaintiffs birth. The claim the diagnostic After procedures various and jury’s verdict favor of the who monitoring functions performed, Dr. prenatal rendered care to the child’s moth- Peterson was reassured that the patient’s contrary er was to the evidence and failed stable, condition was hopeful he was justice. They render substantial also safely that she could transported be to a claim error the trial court’s decision to Falls, hospital in Sioux South Dakota. But jury instruct while phone talking he was on the awith practice may be considered in specialist at hospital, the Sioux Falls determining applicable standard of baby’s heart dropped precipitously. rate care and that the defendant’s conduct was Dr. Peterson called for an emergency cesa- judged to be with the benefit of hind- section, rean and the team was sight. reviewing After the record and con- baby assembled. The thirty was delivered sidering arguments parties, we minutes later and was then transferred to affirm. Sioux Falls a neonatal transport team I. Background Proceedings. Facts and dispatched had been when the emer- child, plaintiff, gency Bryson The arose. The Hagedorn, Hagedorn, Dawn inwas thirty-third her week pregnancy when died the next evening. surgeon, The record shows a surgeon, cesarean section re- a to assist the anesthetist, nurse, quired a nurse scrub pediatrician baby. for the nurse, nurse, circulating delivery a labor and (1) trial on four Bryson grounds: the estate verdict was plaintiffs, parents, contrary his and Pete Dawn the evidence under Iowa Rule
Hagedorn 1.1004(6); (2) and his em- sued Dr. Peterson of Civil Procedure Hagedorn, ver- (3) Mercy North Health ployer, justice; defendant dict failed substantial to effect Center, Family Mercy Inc. Clinic- erroneously the court instructed the d/b/a Dr. only rule; (4) will refer Peter- Spencer. We the locality the court defendant, our as the but discussion erroneously son included a “hindsight” stan- to the clinic apply as well. will dard the instructions. trial court motion, plaintiffs’ posttrial denied the April to a This case was tried then filed this appeal. trial, May 2003. a classic battle *4 experts, conflicting centered on the of the II. Jury’s Was the Verdict Sustained plaintiffs’ testimony experts of the and the by Evidencе Did It Sufficient experts. plaintiffs’ The ex- Substantial Justice? Effect aspects critical of Dr. of several perts care, Although insufficiency of significantly Peterson’s but most surgical a team to evidence a failure to effect his failure assemble substantial by emergency justice grounds at the for an are chal hospital independent stand for baby’s verdict, oxygen- lenging section should the a cesarean we disсuss them They compromised. together plaintiffs’ ation become be- argument because the ready, that had a team been surgical support lieved claims of both is identical. baby 1.1004(6) could delivered within have been Rule Iowa of Procedure au Civil fifteen of over thir- ten to minutes instead grant thorizes trial court to a trial new minutes, baby’s chances of ty sur- by when the not verdict “is sustained suffi good. have been vival wоuld cient evidence” and movanfe substan rights tial materially have been affected. that at a commu- Dr. Peterson testified sufficiency of Because the the evidence Spencer, such one in nity hospital, as the question, presents legal we review surgical do not team call in ground trial on this ruling court’s for surgery actually is needed. He until said of law. correction of errors See Estate of Iowa, in rural human resources are limited ex Med. Long rel. Smith Broadlawns is on and in some eases a call (Iowa 2002) (stat Ctr., 71, 656 88 N.W.2d fifty percent Consequently, of the time. on ing depends grounds court’s review as only personnel are when on-call summoned trial; if legal serted motion for new their services will be it is certain error); question, is on Heinz review cf. experts The echoed Dr. required. defense 2002) (Iowa Heinz, 338 N.W.2d testimony and Peterson’s сonclusions. (reviewing of at law for correction errors They confirmed in rural Iowa on grant trial court’s of directed verdict standby are not assembled on teams evidence). the basis of insufficient limited, basis; personnel having when are standby disrupt the on-call may them on for grounds In addition attention to' other matters. As providers’ trial set in rule granting a new out summarized, physician simply “We one 1.1004(6), pow has the trial cоurt inherent many personnel.” have that don’t court to set a verdict when the er aside fails administer a verdict favor of concludes “the verdict returned Prods., defendant, Lehigh finding justice.” Clay specifically substantial Dep’t Transp., not Ltd. v. 512 N.W.2d negligent. plain- defendant was 1994). (Iowa motion for We review subsequently tiffs filed a new ruling court’s on motion for new trial ness defendant’s actions was the ground this for an proper subject basеd on abuse dis expert testimony See id. at 544. To show an abuse ultimately jury’s cretion. was for the assessment. discretion, complaining party must See v. Flannery, Cowan 461 N.W.2d (Iowa 1990) show “the court exercised its discretion ‘on 157 (stating jury should ordi grounds clearly untenable or to an extent narily be allowed decide disputed fact ” (citation clearly unreasonable.’ Id. omit questions). circumstances, Under these it ted). ‘[ujnreason context, “As used was not the trial role to unilaterally court’s able’ means based substantial evi determine the standard care owed Serv., dence.” Channon v. Parcel United plaintiffs. Therefore, the defendant to the Inc., we find no abuse of discretion in the deny court’s decision to a new trial. See jury’s contend the verdict Dist., Kautman v. Cmty. Mar-Mac Sch. was not sustained evidence and did (Iowa 1977) (finding justice not render substantial because Dr. no abuse of discretion in trial court’s fail admittedly Peterson an emergency knew grant ure to new trial where there was might necessary, yet cesarean section be conflicting testimony medical on primary required did not call in the personnel to *5 issue). by delivery stand for an immediate even though he could have done so. Asserting III. Locality Instruction. society is free to ignore
“[n]o choose to child,” they life of a in argue essence trial The court following court should conclude the defendant’s instruction jury: choice was unreasonable as a matter of A must degree use the of unpersuaded law. The trial court was by skill, care, and ordinarily pos- argument, noting there “a signifi- was sessed and exercised other cant disagreement between the experts in similar circumstances. locality The оf who testified this case” on whether “Dr. practice in question is one circumstance immediately Peterson’s failure to assemble to take into consideration but is not an applicable team” breached the upon absolute limit required. the skill standard of care. The court concluded it plaintiffs object to the last sentence of was jury’s duty conflict, to resolve this (1) this instruction for two reasons: “[t]he рlaintiffs’ so the court denied the mo- ‘locality’ Iowa”; rule is not the law of tion for trial. new (2) “the evidence did not support inclusion agree
We with trial court that locality of a factor.” there is sufficient evidence to support the We review the court’s decision to jury’s decision that Dr. Peterson was not give the challenged instruction for correc negligent. Although contend tion of of .errors law. See Anderson v. experts credible, were not City Dist., Webster Cmty. Sch. 620 N.W.2d the credibility of peculiarly witnesses is (Iowa 263, 2000). 265 in giving Error an the responsibility of the fact finder to as instruction will not warrant reversal unless sess. Top See Iowa Coop. v. Sime objecting party has prejudiced by been Farms, Inc., (Iowa 454, 608 N.W.2d 468 the instruction. See Kurth v. Dep’t Iowa 2000). We also find no basis to conclude (Iowa 1, 2001). Transp., 628 N.W.2d 5 the trial court acted unreasonably or оn an in refusing untenable basis to interfere locality original rule in its form jury’s with the decision. The provided reasonable- “a is bound to use
89 skill, determining whether doctor acted rea- knowledge, care degree Mailliard, ordinarily by physi sonably”); exercised Dickinson v. 175 attention cf. (Iowa 1970) and in like 588, like circumstances cians under (modifying 596-97 N.W.2d Bessmer, 241 McGulpin v. localities.” it locality applies hospitals, rule as stat- (1950) 121, 126 1129, 1119, hospitals are held standard of care ing added); v. accord Whitesell (emphasis operating cir- hospitals “under similar 750, 629, 636-37, Hill, 70 N.W. 101 Iowa cumstances”; standards practices (1897). 100 It was formulated over 751 particular community hospitals protect practitioners rural years ago “to are only similar communities one consider- informed adequately to be less presumed conclusive). ation, and are Our adher- Amy cоlleagues city.” in the than their qualification locality ence to this rule Molzen, J. Christopher Sokol Jurevic at Speed. reaffirmed 240 Medi Changing Care in Standard of (2002) cine, 449, Legal 476 23 J. Med. Article”]; Bar “Sokol accord [hereinafter Although availability of medi Ill. Cmty. Hosp., Paxton 120 timus v. knowledge has universal cal become more 418, 458 N.E.2d App.3d Ill.Dec. States, rule across the United Hilbun, (1983); 1072, 1077 Hall v. validity aspects. has retained its other (Miss.1985), supеrseded So.2d See, Stroud, Ark. e.g., Gambill grounds noted in Nar on other as statute (1976) (stating similar 531 S.W.2d Jenkins, Timber Co. 777 So.2d keeta not on size or of com ity depends location (Miss.2000). Iowa, also In the rule was facilities, munity, practices on “medical but for differ equitably intended to account *6 community); advantages” and available in develop skill physicians’ ability in to ences Hall, at 872 re (noting 466 So.2d “there or greater due to “the prоfession in their validity” locality rule mains a core of to the by the locali opportunities afforded lesser facilities, respect with to the “medical ser and Smoth ty, practice.” for observation vices, options and ... reason equipment (1872). Hanks, 34 Iowa 289-90 ers v. physician); to a ably available” Birchfield finder to Finally, the rule allowed the fact Hosp., v. Texarkana Mem’l 747 S.W.2d physicians’ into account differences in take (“The (Tex.1987) purpose technology.” to the latest Sokol “access locality prevent rule is to unrealistic com Article, Legal Med. at 474. 23 J. parisons practice the standards of between time, the began courts to abandon Over facili where in communities resources on the skill and rule as a strict limitation differ.”). Thus, might vastly pertinent ties physician. Speed of a See required care us, facilities, person the case before the State, services, nel, reasonably equipment in and held This court followed suit physician to be available to continue in the locality the which McGulpin appropriate circumstances relevant to the circum- practices was but one care rendered the ness of the determining stance to be considered Hall, at 873 patient. Sеe 466 So.2d he or she exercised reasonable whether duty of care must (stating “physician’s not, however, care; circumstance was this quality consideration the take into required.” upon “an limit the skill absolute facilities, services, equipment kind of 128; at ac- 241 Iowa at available”). Therefore, we Doan, other resources N.E.2d Vergara cord the (Ind.1992) plaintiffs’ contention reject the (stating locality practice is locality rule is not law in Iowa. factors considered “but one of the to be The plaintiffs also assert as error sues that support have no in the evidence error.”). trial court’s failure to “locality define They is contend the personnel practice,” arguing this omission invited perform needed to an immediate cesarean misapplication of the jury. law section were Peterson, available to Dr. They contend that once the court chose to therefore, there was no resource- rule, locality instruct on the it should have based limitation on ability his comply informed the that the location of the with the standard of care imme- requiring practice pertinent in this delivery diate upon complete abruption. only to case the extent it affected the essеnce, In they argue that because sur- reasonably resources available to him. gical team could have been called to the hospital standby basis, on a reasonable explanation Even if an locality-of- care required that surgical personnel practice factor would have assisted be summoned surgery even before was de- jury, we do not think termined to necessary. be But that wаs prejudiced by the court’s failure to define precisely dispute experts: between the phrase under the facts of this case. whether, given the per- limited medical primary dispute in this case centered sonnel available in the community, a phy- on whether Dr. Peterson should have sician of ordinary skill would surgical called a team to the hospital as have assembled a team on a soon as it became apparent that Dawn standby basis. dispute This implicated Hagedorn might have placental the resource component of abruption. plaintiffs’ experts testified rule, and therefore there was record sup- surgical personnel should have been port for the court’s instruction. they summoned sooner so would be imme diately available case it became neces Hindsight IV. Instruction. sary perform a cesarean section. The trial court experts claimed, following defendant and his howev er, instruction over plaintiffs’ objection: assembling a standby surgical team was not a option reasonable due to A physician’s conduct must be viewed personnel limited medical available in light existing circumstances at *7 community. Thus, the as plaintiffs the the time of diagnosis and treatment and brief, acknowledge in their the only way in not retrospectively. If physician a exer- locality which the of Dr. prac Peterson’s cised a degree reasonable of care and tice relevant was this case was in a skill under the circumstances they as resource-based sense. Given the clear fo existed, though not perfect as seen in cus experts’ disagreement, we do hindsight, then physician the nеg- is not jury not how the see could have been ligent. misled the court’s instruction. See Ver plaintiffs claimed at trial this 188; gara, 593 N.E.2d at see also Kiesau instruction, particularly the reference to Bantz, (Iowa 164, 2004)
v. 686 N.W.2d 175 hindsight, was “not proper,” “projec- was “if (stating the instructions do not mislead tional,” and was a “not uniform instruction jury, error”). the there is no reversible in Iowa.” matter,
As a final plaintiffs This court has held that objec- similar assert the evidence did not implicate the tions made to a comparable instruction locality rule. See generally given Peters v. Van in legal malpractice case were not Kooi, (Iowa 1993) der 708, 494 N.W.2d 713 preserve sufficient to error. See & Grefe (“The submission of Watters, instructions upon Sidney is- 821, v. 525 N.W.2d 825
91 concurrence). WIGGINS, J., Watters, (special in the court In lawyer’s profes jury that structed majority that the locali- agree I with in the judged “to be sional conduct ty part medical-malpractice of rule is still surrounding circumstances light of all today’s society, jurisprudence Iowa. In lawyer’s] during prior [the to existing physician possess in rural Iowa should any according not to representation, skill, care, ordinary learning as a same attorney ob hindsight.” Id. any metropolitan from area a related instruction and jected to this сountry. Physicians have the benefit “not they on the basis were instruction continuing of medical and access education part not [were] law Iowa journals to allowing physicians medical appeal, instructions.” Id. On uniform stay up to date the latest methods objections “not suffi were we held these availability and treatment. The diagnosis ciently preserve error. definite” facilities, of a equipment, and rеsources is warranted here. See same conclusion jury can con- locality are circumstances a Maur, Inc., 652 v. Von also Winckel to determine whether a sider (Iowa 2002) (holding ob N.W.2d 458 skill, care, degree used the jections part was “not a that instruction ordinarily by oth- possessed and exercised not any instructions” and was standard er similar circumstances. abro “inadequate”), “appropriate” v. grоunds by Barreca gated on other give think a court not an I also should (Iowa Nicholas, 111, 121 N.W.2d incorporates instruction 2004); Stallings, 387 N.W.2d Moser rule, the uniform instruction because (Iowa 1986) (stating trial ob party’s adequately covers rule.2 See Vachon erroneous, jection that instruction “was Found., Med. 490 N.W.2d Broadlawns why reason it was er stating without 1992) (Iowa (holding an instruc roneous, sufficiently specific to was not doc the honest mistake incorporating tion error]”); Rudolph v. [preserve error; not constitute reversible trine did Ctr., Med. Methodist however, enough it prejudicial we found (Iowa 1980) objection in (holding trials court should that in future of the law” struction “is misstatement malpractice in a give an instruction such error); Yeager v. Dur preserve did not case). (Iowa 1979) (hold flinger, following guide- adopted have We not a ing that “instruction ‘is objection drafting instructions: lines in pre of Iowa ... proper law statement should not marshal Instructions nothing”). serves give prominence or undue evidence *8 error in the sub- Finding no reversible case; aspect any particular or trial court’s mission of this case Courts, jury, instructing the when 2. rulings, we affirm. against ev- attempt to warn should AFFIRMED. jury or ery misapprehension mistake make; may J., WIGGINS, justices except All concur their intelli- must be left to C.J., 3. Jurors LAVORATO, specially,
who concurs application gent apprehension STREIT, join special J. who put rules forth the instructions. concurrence. states, physicians circum- other in similar Jury "[a] instruction cised Uniform 1600.2 skill, Jury Instructions See II Civ. physician degree care stances.” must use (1997). learning ordinarily possessed exer- 1600.2 Ass’n, Square skill,
Stover v. Lakeland care, Owners ordinarily pos- sessed and exercised As with other in similar instruction, the honest mistake circumstances. the instruc- given tion in this case promi- undue LAVORATO, C.J., STREIT, J., join nence to the rule. A special can this concurrence. facilities, equipment, consider the and re-
sources available at the physician’s
time of the diagnosis and treat- simply by
ment applying language instruction, requiring to de-
cide whether a used the degree