Surgical Consultants, P.C. v. Ball

CONSULTANTS, SURGICAL

P.C., Appellee, BALL, Appellant.

Maxine M.

No. 88-538. Appeals Iowa.

Court

Aug. Orr, City, appellant. for

J. Allen Sioux Beebe, Ellwanger Kindig, Michael W. Nieland, Killinger, Rawlings, Probasco & Eidsmoe, F. Heidman of Heid- and Marvin Redmond, man, Fredregill, Patterson & Schatz, City, appellee. Sioux DONIELSON, P.J., and Heard HABHAB, HAYDEN JJ. DONIELSON, Judge. Larry February Foster

On Consultants, P.C.) performed (Surgical gastric bypass operation on Maxine Ball. 26, 1984, Dr. filed a On December against for the small claims action $1,299 oper- due for that balance against ation. counterclaimed Foster, alleging negligence and breach premised contract. At trial Ball’s case was on claims of and abandonment. fully asserted that because she had She provide paid her bill Dr. Foster refused to care, necessary follow-up and that her with emotion- physical, as a result suffered she al, At damages. the conclu- and economic evidence, Dr. moved sion of Ball’s for a directed verdict as the counter- claim, and the trial court sustained his mo- tion. appeal Ball contends that trial

On granting erred in Dr. Foster's motion court there was suffi- for a directed verdict when in the cient evidence record submit 1983, 16, of and of on May issues abandonment to one the sutures she jury. Specifically, the Ball contends that negligent contends that he was in not re- follow-up provided by the care Dr. moving Foster of more them when these abscesses approved standard did not meet the and formed. required by

practice physician. of care a Ball claims that she had scheduled an Furthermore, argues she that Dr. Foster appointment to see Dr. late Au- his for abandoned her when a member gust regard with her condition. Dr. her Foster’s office staff told waiting doctor, After see awhile to the longer no patient she was Foster’s be- she asked receptionist the when she would paid had her cause she bill. be allowed to see him. She claims that Dr. obesity. Ball suffered from morbid Her bookkeeper Foster’s told her that she was weight excessive caused her a number of no Dr. Foster’s because she problems health physician, paid hadn’t her bill. Ball contends that Dr. Roberts, suggested she consult Dr. Foster abandoned her care and that she possibility having Foster about the a suffered as a result thereof. gastric bypass. “gastric bypass” A is a Ball claims that she tried to contact Dr. procedure portion a which of the stom- bookkeeper several times after his leaving stapled, pouch ach is a small as the longer patient. told she was She principle receptacle liquid for food and says that Dr. Foster didn’t return her calls through esophagus. enters the por- and did again. not contact her ever She pouch actually tion the stomach 30, 1984, Posey visited Dr. on October with receives the is food able to handle regard drainage from her incision. He very quantities portion small food. obtained cultures the discharge from her is small intestine used to route food prescribed incision and antibiotics for Ball. liquid pouch out of this small and it again Ball saw Posey January 15, on joins then with the remainder of the intesti- January 28,1985, On 1985. visited Dr. nal accomplish tract. order to this sur- hospitalized Monson. He Ball and removed surgeon gery, a through makes an incision 30,1985. several of January her sutures on the skin through line and also several subsequent abscesses, Due to he also re- surgeon inches of subcutaneous fat. The 1985, moved sutures from Ball in March then reaches membrane of fibrous tissue 1985, September 1986, April June that surrounds the abdomen and holds the contents thereof. This tissue surrounding Foster testified that his treatment of the abdomen is called the fascia. The sur- her eleven visits with him fol- geon through cuts the fascia to enter into lowing surgery complied with the stan- belly cavity. After performing gas- required dard of doctors who share bypass surgery, surgeon tric up closes specialty surgery. of bariatric He con- fascia sutures. appropriate tends that it was to utilize con- servative treatment for Ball’s abscesses. On Ball met with Dr. peroxide He advised her on how to use explained gastric bypass Foster. He bandage abscesses, clean and he procedure, potential complications, its contends on at least three of her visits possible side surgery. effects office between March 1983 and Au- surgery Ball decided to have the and was gust 1984, completely her incision performed on February 1983. Follow- subsequent eruptions healed. When would surgery Ball had several occur, he would utilize continued conserva- visits with Dr. Foster. Ball contends that reaction,” tive treatment. Dr. Foster felt that due to “foreign body she had a which is (she great weight weighed a reaction to the suture loss material that re- pounds body. surgery mains in the She at the time of her and 117 testified that she pounds had numerous of her last abscesses caused the time office visit infected August 1984), sutures and these abscesses were painful continually required. drained a mal- be This that is often is pus. odorous gastric bypass. While Dr. Foster did remove needed It re- 14(f)(2). For R.App.P. Iowa ably from bear. results skin that moves the excess accepts appeal, the court purposes of this per- surgery cannot be weight This loss. physical of her con- Ball’s characterization has obtained formed until surgery through- her dition a weight has attained loss and maximum Foster and later her care under Dr. 16, 1984, out April During weight. stable Likewise, this court Monson. under Dr. visit, asked Ball con- office one allegation of accepts as true company to authori- her insurance tact August in of staff told her Dr. Foster’s It is not abdominoplasty. the zation for his that she was 1984 fact the did in contact whether Ball clear medical bills. because of 1984, 17, August follow- company, but Dr. Foster on ing office visit with that Dr. Negligence contends II. 13th, Foster wrote Ball’s insur- August regard to negligent the Foster was surgery. for the seeking authorization er follow-up provided he for her. She care argues substantial evidence existed Recognizing of this to the support submission issue case, Dr. Foster in Ball’s be necessitated jury. by of care a The standard owed the time to remove sutures intended is well established. doctor to her to use surgery. He advised of that Doctors are held to such reasonable to allevi- peroxide clean her wound and by ordinary and skill as is exercised the drainage. he did the On one occasion ate good standing under like cir- physician of in office. On later remove one suture State, v. cumstances. Clites 322 N.W.2d attempted he to remove another but date 917, (Iowa negligence The App.1982). 919 so. he felt this con- could not do Because the specialist based on failure to of a is treatment was approach the servative skill, care, degree learning apply the incision, he de- resulting healing of the by possessed specialists in experienced the remainder the ferred removal of Walker, similar circumstances. Perkins v. abdominoplasty was to be until the sutures (Iowa 189, 1987). 191 Three 406 N.W.2d performed. possible negligence the means to establish Scope Review. question involv- I. recognized. been generate sufficiency the evidence testimony, the through expert is sec- One jury face a submissible issue the physi- through showing the ond evidence an presents a directed motion for verdict is as to be cian’s lack of care so obvious Graether, v. of law. 389 issue Wolfe comprehension layman, aof within 643, (Iowa 1986). grant a 651 To N.W.2d (actually an of the third extension the verdict, find a trial court must directed second) physi- through evidence that evidence, light in the when considered injured party of the cian [sic] party, opposing most to the is favorable in the treatment. The first involved as matter of law to sustain insufficient means is the rule and others are Schultz, Nash v. brought. allegations exceptions to it. 241, (Iowa App.1987). 243 The 417 N.W.2d (Iowa 609, Hayne, v. 210 613 Perin N.W.2d dis trial court is vested with considerable State, also, v. Forsmark 1973). See 349 determining is cretion in whether evidence Buckroyd 1984); v. 763, (Iowa 768 N.W.2d Ober jury. it to the sufficient submit Bunten, 237 N.W.2d 808, (Iowa 811-12 Industries, Inc,, 398 reuter v. Orion Wirtz, 222 409, McCleary 1976); v. N.W.2d 206, (Iowa App.1986). Gener N.W.2d 209 Surgical Asso (Iowa 1974); Sinkey 412 ally questions negligence proximate (Iowa 1971); ciates, 658, 660 186 N.W.2d jury; exception are for a is cause Spencer, Grosjean v. Iowa may cases decided mat al be (1966). Similarly, 139, 143-44 140 N.W.2d Bovenmyer, ters of law. Barnes v. knowledge everyday ex- common where 223, 312, (1963). Iowa 122 N.W.2d lay jury to perience permit a form will not considering connection propriety opinion of the direct- as to a causal be- an verdict, injury give alleged negligence acts of ed we will Ball’s evidence tween essentially is connection party, most construction it reason- causal favorable will had, upon experience matter must be founded ex women they may what Iperen surgical have had in the care of pert evidence. v. Van Bram wounds Van er, (Iowa 1986). type involved in this case. Bariatric See also, subspecialty operative is a McCleary, pro- 222 N.W.2d at 413. obesity. cedures for morbid At issue is the At the outset this court notes that appropriateness of pro- required alleged to establish by vided for Dr. Foster. The presenta of Dr. Poster nurse’s aides is not sufficient to offer a expert tion of evidence. circumstances jury any evidence of prevailing what the of this case involve a determination as to standard of care for surgical profession appropriate type follow-up of care that is and whether Dr. Foster met that stan- major surgery. is necessitated after a It in dard his care for Ball. patient’s involves an assessment as to a judgment condition and as to best Dr. Foster testified as how to his con in treat that condition. This is not a in duct this matter and he case contended that physician’s provided lack of care is so obvi for Ball was appropriate in only this case. The comprehension ous as to be other within by Monson, witness called Ball was Dr. layman. began seeing doctor who she in of the record1 in review this case subsequently 1985 and who many removed present reveals that Ball failed to substan- of her sutures. tial evidence as to whether Dr. Poster’s Dr. Monson testified that the nonabsorb- treatment of Ball violated standard of by able suture material used in practiced by other doctors who are proper Ball’s simply and that engaged specialty in the of bariatric sur- resulting because there is a suture reaction gery. Ball called the witnesses drainage that does not mean there is daughters, Gay her trial: Orr part on the of the doctor. He Stanton; Patty mother, and Leola approved stated that it was a standard and James; sister, Rasmussen; Carole Dr. practice eventually remove sutures if a Poster; Monson; Dr. Nothing and herself. long enough. suture reaction lasts He tes- testimony daughters of Ball’s or policy tified that initially it was his use they mother reveals that could render an peroxide try stop draining and wound expert opinion as to the standard of care successful, and if that wasn’t then within necessitated in a case like this. Ball and thirty sixty days he would remove the her sister are both nurse’s aides. Her sis- specifically infected suture. He opinion type ter offered her as to the of “authority” that he didn’t want to be an by sutures used Dr. Poster and her view as of time a the amount doctor should wait necessity to the antibiotics and drain- removing a suture: before tube this case. This court dismisses possibility testimony Q. that the your you policy of Ball office do have a sister, Rasmussen, and getting could constitute if these sutures out there is expert pus evidence in a case- of this nature. and infection that area? A. Af- presented No evidence was every as to the ter a suitable amount of time. Not or amount kind of medical education these sutures needs A lot to be removed. [sic] trial, examining presented Appellate provides 1. In the evidence Iowa Rules of Procedure only partial transcript this court had appellant’s duty of the transcript it is an to order a and proceedings reproduction trial court and the all to include evidence relevant to a determina- testimony appendix contained in the submitted tion of whether sufficient evidence existed to by parties. partial transcript contained support a trial court’s decision. This court as- Miller, Foster, testimony of Pamela Dr. partial transcript that the and sumes the ex- Patty appendix and cerpts Stanton. The contained ex- appendix cerpted material in the reflect the ex- depositions from the appellant tent of the evidence introduced at trial Miller, Orr, James, Gay Pamela ter, Leola Dr. Fos- regard prevailing with to the medical standards Stanton, Roberts, Patty Posey, Dr. field, alleged in this and Dr. Foster’s failure to Monson, Rasmussen, Porter, Carole meet these standards in his care of Ms. Ball. Grossman, and Maxine Ball. Rule of the you and infected, especially in bother become[s] [the] of wounds become you take them then irritated it and thick, walls where obese abdominal they [Emphasis up. defend itself well out and it clears added.] fat doesn’t in- they susceptible to are are viable was “no that there Dr. Monson testified go high as 50 people fection. Some hook using the “crochet problem” with are infected or of the wound percent [sic] attempt to by Dr. Foster to method” used operations, in obese or in get infected May Ball in sutures from remove operation. patient who has an obese merely just February 1984. “That’s stop draining after a And if don’t get- obtaining the suture and method of time, I don’t cer- period suitable you pulling it where ting ahold of it and authority be an on that tainly want to it.” can cut it and remove time, days certainly amount but specifically asked Dr. Monson was the wound maybe days work with —I opinion he had an attorney whether try peroxide, and use debride ap- or not standard as to whether the contamination try to cure wound in Dr. Foster’s fol- proved care was used infection, period after a and the but question low-up This was care of Ball. up, the time if it doesn’t clear wound objected Dr. Monson had not to because: heal, foreign I feel that the doesn’t then opportunity to examine the records had the suture has to be removed. or the Foster; opportu- had the of Dr. he had not testimony Q. your about What is outpatient nity any of the or to examine bumps early treatment of these effect on hospital at the emergency room records I reactions? A. As or suture partners saw where Dr. Foster and earlier, you have a wound contam- when Ball; opportunity he had not had the to you and have at least concluded inated con- deposition examine offending organ that the sutures are provided cerning the care and treatment he agent, they that offending causative Ball; with Dr: he had never visited you pro- needed to removed. And be care and treatment he had Foster about the sometimes, and there is crastinate Ball; he know provided for and did not time, days days. There magic or 60 had clinical Dr. Foster what observations you get of the comes a time when tired eighteen patient of this made being draining and there’s a time wound provided care for Ball. The months he had patient tired of the when the becomes objection and Dr. Mon- court overruled the many draining, and times it’s wound following opinion: offered the son conclusion, you reach that be- when both coming Q. opinion, Doctor? A. they your are the office What is cause when they draining and I every My opinion week and are is based on what saw you changing dressings taking patient. and sooner are I started care of the when say, okay, got do you problem, or later we that I realized that this was something. there was a conflict and this was dis- patient we em- cussed with before going And I’m not to sit here with au- I on treatment. And made this barked thority you and tell that there is a dispute That she known to her: whatever period days you that take the certain my problem. out, going had was not to be certainly but there is a sutures part I not want to be a point you’re getting in time when not That did something I this that any where and that’s the time when lawsuit. That was regular physi- thing they should be removed. her and was between [sic] I to know it be- cian. did want about Q. period And what would that history and find cause I had to take the be, Thirty days, Doctor? A. time for- operation had been done and out what infected ty days. I’ve followed wounds given up until this what care had been six weeks and and infected sutures for sutures, infected time. These were up them cleared and healed some of have they she my opinion I that of them haven’t. As was over and some —that [they] going not better. The infec- say, point there is a in time when was going performed was continue. was of the he tion She removal sutures until drainage going having “ap- continue this would have been propriate.” those sutures were If until removed there are two or more going nothing change. that That of action recog- was courses which have been my opinion. by profession proper was nized medical treatment, physician, methods and the Q. you Did she tell that judgment the exercise of his or her best wouldn’t treat her because the bill wasn’t proper alternative, elected then the mere paid? A. what she That’s told me. fact that such a course of treatment did not Q. that, your opinion, And is a reason produce the best result is a breach of patient? not to treat A. A care. Estate Smith v. standard you I things necessarily tells don’t Lerner, (Iowa 581-82 things say know that all they that 1986). physician is not liable to a right wrong. are Sometimes are judgment for an honest error of when the by Disputes influenced emotion factors. requisite degree exercised the But what problems. this is could cause skill in arriving judgment. care and that at said, tummy she he wanted do a Perkins, 406 N.W.2d at 191. these tuck remove sutures time, probably been most, would have At Dr. Monson’s reveals appropriate, that she may told me he while chosen to treat paid. he wouldn’t do it differently unless bill was Ball’s infected sutures than Dr. history Foster, That’s I given. the treatment offered [Emphasis recognized was a alternative method of added.] personal care. was Dr. policy It Monson’s Finally, Dr. Monson testified if that even thirty to remove sutures sixty within to Dr. Foster had removed additional sutures days from time became infected. eighteen months was that he testified, however, He that deferral of the care, problem Ball’s of reoc- removal of sutures until an curring foreign very reaction could performed was was an “appropriate” alter- anyway. well existed Dr. Monson piecemeal native to removal of the su- problem that the noted continued infect- No evidence tures.2 was offered which throughout ed sutures had care existed his tended to contradict the need for an abdom- for Ball. in inoplasty this case. Monson Dr. offered expert The offered Mon- evidence Dr. suggest to Dr. no evidence that Foster did son does not establish that Dr. Foster’s his judgment coming not exercise best to of Ball from care deviated standard to his decision defer removal the sutures required physician. of a Dr. Monson or that Dr. Foster’s care of Ball say not “authority” there that did not adhere to the standard of care specific awas time at which su- infected required of doctors in similar circumstanc- tures must be He removed. testified es. policy it was remove such su- required present expert Ball was evi- thirty sixty tures within a time day alleged dence on issue of Dr. Foster’s period. physician’s testimony as to his so, negligence. failing Ball to do lacked personal practices policies, or her or or as negli- substantial evidence of Dr. Foster’s he specific to how or she would handle a gence the issue could not be submitted case, does not as suffice evidence of did not jury. to a trial court err in required physician standard directing verdict on the issue of Dr. Fos- good standing in similar circumstances. negligence. ter’s Lemmon, 680, Freese v. N.W.2d 1978). (Iowa Furthermore, Dr. III. Abandonment. Ball Monson claims that plan defer bookkeeper August testified Dr. Foster’s told Foster’s expert performed inoplasty 2. Dr. Porter testified as an was at that time behalf because fully easy explained exposed Foster. He were it was advanta- the sutures to re- geous to wait to remove sutures until move. an abdom- physician must longer patient no of There be evidence of 1984that she was relationship a critical at Ball claims has terminated bill. his because of treatment, that the patient’s stage her care and abandoned that Dr. Poster or done without reason injuries result there- termination was as a that she suffered patient to notice to enable the sufficient of. pa- that the procure physician, another recognized is a basis Abandonment injured a result thereof. See tient is as patient. physician to a liability of a 1127, McGulpin, 241 Iowa at 43 N.W.2d If Smith, at 579. 387 N.W.2d Estate of support evidence to there was substantial presented no evidence demonstrat- claim, jury should have been stage of ing that she at a critical was duty physician It is a of a instructed on it. allegedly at the time treatment taking to follow the charge case relationship with her in late severed proper to a give case and to instructions that she August 1984. Dr. Foster testified as his or her future acts and problems had no serious medical as of 227, Barnes, 255 Iowa at conduct. August 13,1984. Dr. with him on last visit takes physician N.W.2d at 315. When and in Posey saw Ball in October of 1984 charge employment of a case his continues January he that at nei- 1985 and by mutual or his dis until ended consent time did medical ther she have serious missal until his services are at- problems requiring who immediate medical physician needed. A leaves Monson, expert, stage in a of a disease without tention. Even her own critical notice him to immediate testify reason sufficient to enable could that she needed cul procure guilty is first saw another medical attention at time he duty 28, he is pable dereliction of for which her on 1985. He testified Bessmer, 241 Iowa McGulpin liable. hospital admitted to the at that 1127, (1950). something time “she because wanted expert just This feels that done.” court diligence and lack of Abandonment generally necessary is establish evidence separate patient treatment are theories of necessary it is negligence, medical so also Smith, malpractice. medical 387 Estate of by expert that a to demonstrate evidence at N.W.2d 576. At times these theories medical stage” was at a “critical overlap, may undistinguishable be and will physician from care when his withdraws distinguishes but what abandonment from has presented his medical care. Ball pertinent failure to meet the standard of in this case. such evidence requires care is an to termi- intent professional relationship. nate Id. Likewise, there is insufficient evidence to acquire Ball could not suffi- establish that Giving the evidence most favor alleg- medical after Dr. cient reasonably it will able construction bear in care for edly terminated his her. She sub- to the jury, favor of this court submission Posey sequently two visits with Dr. had presented finds that Ball evi sufficient daughter and her testified that didn’t regard dence with whether attempt appointments to schedule with physician-patient intended to terminate City Posey. Sioux doctors other than Dr. It relationship with her. was clear that presented Ball no evidence to demonstrate fulfilling Ball was not her financial obli special- that she not retain a could bariatric bill, gations pay and she Foster’s prior ist to her first visit with Dr. Monson daughter that a member of Dr. Foster's staff told Ball she was no longer patient Foster’s because of Ball failed to offer substantial evidence Substantial evidence exist of her claim A bill. for abandonment. directed ed to this an aban regard aspect appropriate verdict is cases each where However, supported by donment claim. a claim of aban is not element the claim Oherreuter, requires donment more a mere termi than substantial 398 evidence. relationship. added). physician-patient (emphasis nation of a The trial N.W.2d 209 free of infection. Ball suffered be- directing a verdict on was did not err court up on cause of Foster’s refusal to follow claim of abandonment. Ball’s surgery. AFFIRMED.

I determine there is substantial evidence HABHAB, J., concurs. support Ball’s claim Dr. Foster aban- treatment of doned her and terminated his HAYDEN, J., dissents. she was healed from Dr. Fos- before HAYDEN, Judge (dissenting). surgery. acknowledge I this ter’s evidence testimony presented entirely by is not respectfully I dissent. testimony expert witnesses. Dr. Monson’s synopsis A of evidence and light sheds had on whether jury is as follows: before the treating healed when he started her after weight problem. had a She went to refused to or treat her. see agreed operate her and Foster who Ball testified that a of Dr. Foster’s member completely her until she was follow her, longer office staff told “You are no operation performed cured. The was bill; patient; you paid your haven’t don’t plexis cut Ball from her solar and Foster come back” after Foster had failed to line, right through the pubic to her hair used in remove non-absorbible sutures deep, The cut and cut all navel. was causing operation, which were either linings to the backbone. ‘black-fish foreign body or a infection reaction. up. used to cord line’ was sew charge takes When a of a case kept to fester and has on fester- started (or her) employment continues until present to the time. Her re- (or her) ended mutual consent or his rejected material. acted to and the suture (or her) or until his services are dismissal appeared Holes Ball’s incision line and Bessmer, longer McGulpin needed. v. string would come to the sur- black 241 Iowa discharge yellow at first face. The (1950). If there is substantial evidence green. then turned Foster continued claim, jury support plaintiff’s at, nothing virtually to look but do instructed on the issue of should have been any lumps remove and stitches. Ball’s Lerner, abandonment. Smith condition continued to worse. Be- (Iowa 1986). The relation N.W.2d unbearable, cause it was Ball and her surgeon ship physician and daughter went to Foster’s office and contract, express or arising out of is one told, patient; were ‘You are no Surgeon implied. Physician C.J.S. bill; you paid your haven’t don’t come (1987). 59§ tried, repeatedly, an back.’ Ball Foster, appointment with and he refused authorities, I For the above reasons to see her or treat her more. majority’s respectfully dissent from the drain, weight continued to smell and lose opinion. I hold the trial court erred would city and Ball had to leave the of Sioux for a sustaining Dr. Foster’s motion (here- City go to Dr. Monson in Omaha as to Ball’s counterclaim. directed verdict Monson). inafter referred to as Monson sufficient evidence I determine there was lumps (containing cut out the the black jury. juryA this issue to the to submit cord) heal and fish and that area would generated as to defendant’s question was (because spot erupt another would Dr. Foster had abandoned counterclaim Pain, infected). area entire stomach her. smell, drainage and infection has been lumps If the decreased Monson. opened string and the

would have been recovery of Ball

removed the relatively simple and uneventful.

been acknowledged that he contracted operate up Ball until she follow

Case Details

Case Name: Surgical Consultants, P.C. v. Ball

Court Name: Court of Appeals of Iowa

Date Published: Aug 23, 1989

Citation: 447 N.W.2d 676

Docket Number: 88-538

Court Abbreviation: Iowa Ct. App.