WILLIAM McGREW and ELAINE McGREW v. EROMOSELE OTOADESE and NORTHERN IOWA CARDIOVASCULAR AND THORACIC SURGERY CLINIC, P.C.
No. 19–2137
IN THE SUPREME COURT OF IOWA
Submitted December 15, 2021—Filed January 21, 2022
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.
Plaintiffs seek further review of a court of appeals decision that affirmed a defense verdict in a medical negligence case, contending that the district court erred in excluding expert opinions. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Mansfield, J., delivered the opinion of the court, in which all participating justices joined. Oxley, J., took no part in the consideration or decision of the case.
Martin A. Diaz (argued), Martin Diaz Law Firm, Swisher, for appellants.
Nancy J. Penner (argued), Jennifer E. Rinden, and Vincent S. Geis of Shuttleworth & Ingersoll, Cedar Rapids, for
MANSFIELD, Justice.
I. Introduction.
A patient suffered a disabling stroke after undergoing surgery to relieve stenosis, or narrowing, of the carotid artery. The patient‘s family promptly sought a second opinion from a neurologist. He read the CT angiogram as showing a lesser degree of stenosis and opined that the surgery had been unnecessary. He also referred the CT angiogram to a neuroradiologist
Later, the patient brought a medical malpractice suit against the surgeon.
At trial, the patient was allowed to introduce evidence that both the neurologist and the neuroradiologist had read the angiogram as showing a lesser degree of stenosis. However, based on an alleged failure to provide proper pretrial disclosures, other evidence was excluded. Specifically, the neurologist was not permitted to testify that the surgeon fell below the standard of care; the neuroradiologist was not permitted to testify as to how he calculated the lesser degree of stenosis; and certain contemporaneous medical records were either admitted in redacted form or not admitted at all. The jury returned a no-negligence verdict in favor of the surgeon.
On our appellate review, we disagree with the district court‘s application of the pretrial disclosure requirements of
We also decline the surgeon‘s invitation to find that the error was harmless. At trial, the parties essentially agreed on the standard of care for when surgery would have been medically indicated. The trial centered instead on the degree of stenosis and other symptoms in the patient, a subject where the parties presented conflicting evidence. Ultimately, we conclude that the district court‘s erroneous ruling on permissible expert opinions unfairly hampered the patient in presenting his side of his case. Therefore, we reverse and remand for a new trial.
II. Background Facts and Proceedings.
A. Background Facts. In 2014, William McGrew began experiencing transient foggy vision in one of his eyes.1 McGrew went to an eye doctor, Dr. Richard Mauer, to seek relief from this problem on July 25, 2014. Upon examination, Dr. Mauer discovered that McGrew had a cataract that could explain his foggy vision. But Dr. Mauer wanted to rule out other possibilities. He
ordered a bilateral carotid duplex ultrasound that was performed on August 6. The ultrasound showed “mild carotid stenosis,” or narrowing of the carotid artery. The ultrasound was generally inconclusive, but according to Dr. Mauer, there was nothing to indicate immediate treatment was necessary. So McGrew and Dr. Mauer scheduled a cataract surgery to be performed on August 20. But McGrew wanted to further explore the possibility that a vascular problem could be causing his foggy vision. To this end, he was referred to Dr. Eromosele Otoadese, a cardiovascular surgeon.
Dr. Otoadese saw McGrew on August 18. Given that McGrew was sixty-nine years old, had a history of hypertension,
The surgery was performed by Dr. Otoadese on September 2. It initially seemed successful; there were no complications during the procedure or immediately after. But during the morning of September 3, McGrew experienced facial droop and weakness on his left side. A CAT scan and an MRI indicated that McGrew had suffered a stroke on the right side of his brain. A CT angiogram showed that the right carotid artery was blocked. After consulting with another doctor and discussing the situation with McGrew‘s family, Dr. Otoadese performed another operation to remove the carotid artery blockage. This second surgery was unsuccessful in alleviating McGrew‘s symptoms. He remains wheelchair-bound, unable to move his left side, and in need of nursing home care.
On September 26, McGrew and his family went to an appointment with Dr. Ivo Bekavac, a neurologist. Dr. Bekavac was trained to read neuroimaging studies and certified by the Neuroimaging Subspecialty Board. According to Dr. Bekavac, the McGrew family came to him “to get a second opinion and also establish the care.” As part of Dr. Bekavac‘s standard procedure, he reviewed McGrew‘s file, including the original CT angiogram and corresponding report. Unlike Dr. Otoadese and Dr. Cammoun—who interpreted the CT angiogram to show 70% and 65% stenosis respectively—Dr. Bekavac read it as showing 40%. This was a significant discrepancy, so Dr. Bekavac asked a neuroradiologist, Dr. John Halloran, to analyze the CT angiogram as well. Dr. Halloran assessed the stenosis at 32% in a report dated October 9.2
The McGrew family asked Dr. Bekavac whether he thought the carotid surgery performed by Dr. Otoadese was justified based on those numbers. Dr. Bekavac answered this question in his record of the visit, stating, “40% of stenosis was not significant to justify endarterectomy in my opinion.” The family also asked about the second surgery, and Dr. Bekavac‘s report indicates he did not believe the second surgery was medically indicated, either, because McGrew had suffered his stroke more than eight hours earlier. In addition to offering opinions on the prior surgeries, Dr. Bekavac recommended continued use of aspirin, family involvement in stroke rehabilitation, an MRI of the lumbosacral spine, and a follow-up appointment. Dr. Bekavac did not comment on causation in his notes from this visit.
B. Proceedings in the District Court. On July 29, 2016, McGrew and his wife,
The McGrews filed a designation of experts on February 6, 2018. Four experts were disclosed: two retained experts and two treating physicians. The treating physicians designated as experts were Dr. Bekavac and Dr. Halloran. The designation described the topics of Dr. Bekavac‘s anticipated testimony:
Dr. Bekavac . . . will be asked to comment on the standard of care in the evaluation (imaging and surgery), care and treatment of an individual like Bill McGrew; the breach of that standard of care; the harm sustained by Bill McGrew; and the cause-and-effect relationship between the breach of the standard of care and any damages and injuries sustained by Bill McGrew and his spouse.
The disclosure relating to Dr. Halloran was similarly worded, the sole difference being that Dr. Halloran would only be asked about his evaluation of McGrew‘s imaging studies.
The defense served an interrogatory on the McGrews relating to their experts. The McGrews first answered this interrogatory with a summary of topics that each expert would cover. Later, on March 7, the McGrews provided a “Supplement to Interrogatory 16 Pursuant to IRCP 1.500(2)(c).” The supplemented answer stated that “Dr. Ivo Bekavac[] and Dr. John Halloran may testify pursuant to previously produced medical records and Plaintiff‘s Designation of Experts.” It went on to summarize Dr. Bekavac‘s medical record: “Dr. Bekavac reviewed the CTA and determined a stenosis of the right ICA of approximately 40%. 40% stenosis is not sufficient to justify endarterectomy. The first and therefore the second endarterectomy were unnecessary and violated the standard of care.” The supplemented answer also summarized Dr. Halloran‘s opinion, stating, “Dr. Halloran, in his medical record dated October 9, 2014, reviewed the CTA and assessed a stenosis of 32%. . . . Dr. Otoadese misread the CTA and violated the applicable standard of care.” Causation was listed as an area of testimony for both doctors, but the McGrews did not attempt to summarize the doctors’ opinions on that subject.
Several pretrial motions in limine were filed by both sides, but only two of the defense‘s motions are relevant on appeal.
First, Dr. Otoadese sought to exclude the “after-the-fact non-treatment opinions of Dr. Bekavac and Dr. Halloran” on topics such as the standard of care or causation. In support of this motion, the defense cited
Second, Dr. Otoadese moved to prevent the McGrews from presenting evidence on certain aspects of his career history, such as a settlement in which he voluntarily relinquished his hospital privileges to perform
At the outset of trial, the court took up some of the motions in limine. On the expert disclosure issue, offers of proof were made by the McGrews for Dr. Bekavac and Dr. Halloran. The court ultimately found that both doctors were properly disclosed as experts pursuant to
Specifically, the court found that Dr. Halloran‘s testimony would not be admissible at all because he did not treat McGrew. Dr. Bekavac, on the other hand, would be allowed to testify on a limited basis. The level of stenosis observed by both doctors would be admissible through Dr. Bekavac because those numbers were generated as part of examining McGrew‘s medical history for treatment purposes. But opinions related to standard of care or causation would be off limits. In explaining this decision, the court pointed to “case law language that a treating physician cannot testify as to standard of care or causation when those issues were not necessary for the physician to formulate an opinion to care for the patient.”
Dr. Bekavac‘s September 26, 2014 medical record was admitted only in redacted form. Thus, the McGrews were able to introduce Dr. Bekavac‘s statement that in his “opinion stenosis of right ICA [was] approximately 40%.” However, they were not allowed to introduce Dr. Bekavac‘s statement later in the same record that “40% of stenosis was not significant to justify endarterectomy in my opinion.”
Dr. Halloran‘s October 9, 2014 medical record was not admitted at all. That record described Dr. Halloran‘s review technique and method as well as his conclusion that there was “32% diameter stenosis.” Yet Dr. Bekavac‘s October 30, 2014 medical record was admitted, wherein he reported, “Dr. Halloran did over read CTA and felt there is ICA stenosis of 32%.”
Dr. Bekavac‘s trial testimony related how he reviewed the CT angiogram with the McGrew family and estimated the stenosis, or narrowing, at 40%. Dr. Bekavac added that this was “a significant difference” from a 65% or 70% stenosis. In light of the discrepancy, Dr. Bekavac testified that he asked Dr. Halloran for an “over reading.” Dr. Halloran, he explained, “has special qualifications in neuroimaging” and “software which can more accurately measure degree of narrowing.” According to Dr. Bekavac, Dr. Halloran reported 32% stenosis.
Later in the trial, the court also made rulings regarding Dr. Otoadese‘s career history. The court allowed cross-examination regarding Dr. Otoadese‘s background but forbid references to his getting “kicked out” of a medical group, losing open-heart surgery admitting privileges, and the like.
Both sides called retained experts at trial. Dr. Carl Adams, a cardiovascular surgeon, testified for the McGrews. According to Dr. Adams, McGrew‘s right carotid stenosis appeared to be in the range of 30% to 45%. Dr. Adams opined that given this range, regardless of whether McGrew‘s vision problems had been on the left or the right side, McGrew was not a candidate for surgery.
Dr. James Levett, a cardiovascular surgeon, and Dr. James Gebel, a neurologist, attempted to counter that testimony on
On March 7, the jury returned a defense verdict finding that Dr. Otoadese was not negligent. The McGrews moved for a new trial. In denying the motion, the district court elaborated on its decision not to allow standard of care or causation opinions from Dr. Bekavac and Dr. Halloran:
I agree Halloran and Bekavac were both listed in the
668.11 designation, . . . Hansen stands for the fact that even . . . designated as a668.11 expert, the ability of a treating physician to testify with regard to standard of care hinges on that aspect of whether or not that standard of care and other opinions sought from that expert or sought from that treating physician . . . were necessary to be formulated as part of that treating physician‘s care of the patient, as opposed to formulated in response to the issues presented by the litigation.
The court later added that even if it had erred in these rulings, the McGrews were not prejudiced “in light of the testimony that was permitted through Dr. Bekavac and the accompanying exhibits, as well as the testimony of the Plaintiffs’ retained expert.”
The McGrews filed a timely appeal, and we transferred the case to the court of appeals.
C. The Court of Appeals Decision. On March 3, 2021, the court of appeals affirmed the judgment in favor of the defendants. On the expert witness issue, the court found that Dr. Bekavac and Dr. Halloran took on a role “analogous to that of a retained expert” and, therefore, disclosure of their opinions was required pursuant to
Regarding Dr. Otoadese‘s career history, the court of appeals found that the district court had not abused its discretion in its rule 5.403 calculus:
There was no need for the evidence; there was no clear proof of exactly what occurred leading to the settlement agreements between Dr. Otoadese and the hospital and medical clinic. The evidence gave weak support to the proposition that Dr. Otoadese was negligent.
In addition, even if the evidence had some relevance, any probative value would be outweighed by the danger the evidence is unduly prejudicial. The evidence would improperly influence the jury to find Dr. Otoadese liable based on evidence involving different events. We conclude the district court did not abuse its discretion in finding the evidence was inadmissible.
(Citations omitted.)
The McGrews applied for further review, and we granted their application. “On further review, we have the discretion to review all or some of the issues raised on appeal or in the application for further review.” Wermerskirchen v. Canadian Nat‘l R.R., 955 N.W.2d 822, 827 (Iowa 2021) (quoting State v. Roby, 951 N.W.2d 459, 463 (Iowa 2020)). The McGrews applied for further review only on the expert
III. Standard of Review.
“We review whether a district court properly admitted expert testimony for abuse of discretion.” Eisenhauer ex rel. T.D., 935 N.W.2d at 9. But when we review the interpretation of a rule of civil procedure, such as
IV. Analysis.
This case highlights the importance of distinguishing among three separate disclosure obligations: (1) the expert designation requirement of
A. Iowa Code Section 668.11.
A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert‘s name, qualifications and the purpose for calling the expert . . . .
In Hansen, we decided that treating physicians may testify on causation without being designated as experts under
The district court decided not to allow the treating doctor to testify on the causation issue because it understood that only designated experts could provide an opinion on causation. Id. This decision was likely based on Cox v. Jones, 470 N.W.2d 23, 25 (Iowa 1991). Cox, as pointed out in Hansen, “held that a treating physician must be designated as an expert pursuant to section 668.11 if the physician is to give opinions on reasonable standards of care and causation.” 686 N.W.2d at 480.
But on appeal in Hansen, we decided not to adhere to the Cox language regarding causation because it was dictum; the element of causation was not even at issue in that case. Id. at 482. Instead, we looked to our more recent holding in Carson v. Webb, 486 N.W.2d 278 (Iowa 1992). Hansen, 686 N.W.2d at 482–83. In Carson, we explained that “the paramount criterion” when considering the need for
Hansen thus draws a line between opinions formed during treatment, which do not trigger an obligation to make an
B. Rule 1.500(2)(b). Ten years after Hansen, in 2014, a series of amendments to the Iowa Rules of Civil Procedure went into effect. These included
Notably, this portion of the rule covers all expert testimony, regardless of the basis for the expert opinion.
The next subsection, subsection (b), requires certain expert witnesses to provide a signed written report.
- A complete statement of all opinions the witness will express and the basis and reasons for them.
- The facts or data considered by the witness in forming the opinions.
- Any exhibits that will be used to summarize or support the opinions.
- The witness‘s qualifications, including a list of all publications authored in the previous ten years.
- A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition.
- A statement of the compensation to be paid for the study and testimony in the case.
If an expert witness is not required to submit a written report, the party must still provide a disclosure pursuant to subsection (c).
Dr. Otoadese argues that
In Day v. McIlrath, 469 N.W.2d 676, 677 (Iowa 1991) (per curiam). Day held that the opinions of a treating physician were not discoverable through
Although we adopted
Rule 26(a)(2)(C) is added to mandate summary disclosures of the opinions to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions. This disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B). Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.
This amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement. An (a)(2)(B) report is required only from an expert described in (a)(2)(B).
One federal district court cogently analyzed the pre-2010 tension and how it was resolved by the 2010 amendment:
Before the 2010 amendments, there were vast differences in the disclosure requirements that applied to retained
and non-retained experts: whereas retained experts had to disclose full expert reports, non-retained experts didn‘t have to disclose anything. Because of this disparity, courts understandably felt a strong impulse, whenever the call was close, to classify the expert as retained and to require disclosure. This was necessary, many courts believed, to give the other side adequate notice of the physician‘s testimony. But, in the 2010 amendments, Congress added Section (C) to Rule 26(a)(2)—which, as we‘ve seen, requires non-retained experts to submit written summaries. See Fed. R. Civ. P. 26(a)(2)(C) (requiring non-retained experts to supply “a summary of the facts and opinions to which the witness is expected to testify“); Fed. R. Civ. P. 26 advisory committee‘s notes to 2010 amendment (noting that non-retained expert must also provide “the facts supporting [the expert‘s] opinions“). Under this framework, then, there‘s little reason to fear that the other side—here, the defense—will be surprised by an expert whose testimony it never had the chance to (fully) examine. In this respect, the committee‘s notes make clear that the “amendment resolves a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.” Fed. R. Civ. P. 26 advisory committee‘s notes to 2010 amendment.
Torres v. Wal-Mart Stores E., L.P., ___ F. Supp.3d ___, ___, 2021 WL 3634632, at *13 (S.D. Fla. August 17, 2021) (alteration in original) (footnote omitted). This district court added, “We aren‘t alone in questioning the wisdom of relying on pre-2010 cases to confine non-retained physicians to the opinions they formed during treatment.” Id. at *15 (discussing other federal cases).4
A leading treatise pointedly criticizes the practice of requiring expert reports from treating physicians who have not been actually retained to offer additional opinions: “The amended Rule focuses exclusively on whether the expert was retained, not the nature of the activity that the expert engaged in to form conclusions . . . .” David H. Kaye et al.,
Admittedly, despite the 2010 amendment, some federal courts continue to impose expert report requirements on treating physicians based on the timing or subject matter of their opinions rather than their status as having been “retained.” See, e.g., United States v. Williams, No. 20–10433, 2021 WL 2819016, at *3 (5th Cir. July 6, 2021) (“Although a party‘s treating physicians typically do not need to disclose a written expert report before testifying, some courts have testimony under the lesser requirements of
held that this exception does not apply to ‘opinions that the treating physician arrives at after treatment, for the purposes of litigation.’ We need not decide this question, which remains unsettled in this circuit.” (citation omitted) (quoting LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475, 480 (E.D. La. 2013)))); EEOC v. AutoZone, Inc., 707 F.3d 824, 833 (9th Cir. 2013) (citing a pre-2010-amendment case and stating that treating physicians who do not provide a report may only give opinions “formed during the course of the physician‘s treatment[] and not in preparation for litigation“). Perhaps this is because some of the federal judges authoring these decisions left practice before 2010. Regardless, we think the plain language of
C. Rule 1.500(2)(c).
Even if an expert witness is not required to submit a written report, the party must still provide a disclosure pursuant to
For Drs. Bekavac and Halloran,
The McGrews have a different understanding of
We provided guidance on the requirements of
The defendants in Eisenhauer had made a timely designation of Dr. Widmer as an expert under
We also held that Dr. Widmer‘s actual deposition testimony, which the pretrial disclosure had incorporated by reference, met
The advisory committee‘s notes to
Although the summary of facts and opinions under
D. The Adequacy of the Rule 1.500(2)(c) Disclosures in This Case.
Upon review of the record, we find that the McGrews properly disclosed both Dr. Bekavac‘s and Dr. Halloran‘s opinions on the standard of care, but they failed to adequately disclose either doctor‘s opinion on causation. The McGrews’ supplemental interrogatory answer stated that “Dr. Bekavac reviewed the CTA and determined a stenosis of the right ICA of approximately 40%. 40% stenosis is not sufficient to justify endarterectomy. The first and therefore the second endarterectomy were unnecessary and violated the standard of care.” For Dr. Halloran‘s opinion, the answer summarized simply, “Dr. Otoadese misread the CTA and violated the applicable standard of care.”
The interrogatory answer went on to reference the physicians’ own medical records. Dr. Bekavac had written in his record that “40% of stenosis was not significant to justify endarterectomy in my opinion.” Dr. Halloran wrote in his record that he measured “a 32% diameter stenosis.” While these summaries are not detailed,
The district court also abused its discretion in preventing the McGrews from introducing complete versions of the contemporaneous medical records. It is undisputed that those records, which contained certain opinions and the grounds for them, had been timely disclosed in full. It seems incongruous to us to redact those same records (or in the case of Dr. Halloran, exclude them altogether) on the asserted ground of nondisclosure.
On the other hand, no causation opinion was disclosed for either physician in the medical records or otherwise. While Dr. Bekavac‘s notes seem to assume the September 2, 2014 surgery caused the stroke—something that was largely assumed at trial as well—this is not actually stated. Nor did the McGrews attempt to summarize a causation opinion in their interrogatory answer. Consequently, no causation opinion was disclosed and the district court did not abuse its discretion when it disallowed testimony on causation.
E. Harmless Error.
Next we must decide whether the district court‘s abuse of discretion prejudiced the McGrews. Reversal of the district court is only required if the McGrews’ substantial rights were affected. See Eisenhauer, 935 N.W.2d at 19; see also Tappe ex rel. Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d 396, 401 (Iowa 1991) (finding reversal was not justified in a medical malpractice case because the district court‘s wrongful exclusion of expert testimony was harmless). “We presume prejudice and reverse unless the record affirmatively establishes otherwise.” Eisenhauer, 935 N.W.2d at 19 (quoting State v. Russell, 893 N.W.2d 307, 314 (Iowa 2017)).
This is a close call. The case came down to the degree of stenosis. Everyone agreed that a patient with 40% or 32% stenosis was not a candidate for surgery. The defendant himself, Dr. Otoadese, admitted that surgery would be inappropriate if Dr. Bekavac‘s and Dr. Halloran‘s stenosis numbers were correct:
Q. I want you to assume for the sake of our discussion that they‘re correct. If they are correct, either 32 or 40 percent, under those circumstances, would Mr. McGrew have been a candidate for surgery?
A. No.
Meanwhile, the McGrews’ expert, Dr. Adams, conceded that he would have offered surgery had there been 60% to 70% stenosis in combination with a symptom.
The closing arguments at trial further confirm the parties’ consensus on who would and who wouldn‘t be a candidate for surgery. The McGrews’ attorney put it this way in closing argument:
Dr. Otoadese told you that if Drs. Bekavac and Halloran are correct, that it‘s either 32 or 40 percent, this gentleman was not a candidate for surgery. He told you that. He admitted to you as part of our case, and so if you find that, then the answer to the first question on the verdict form is, yes, he was negligent for putting him through the surgery.
Dr. Otoadese‘s attorney conceded that her client had given this testimony. But she sought to place the responsibility on the “empty chair,” Dr. Cammoun, the radiologist who had previously settled. A leading theme of her closing argument was
I would submit to you that the question to Dr. Otoadese when Mr. Diaz called him on Friday, would you have operated at 40 or 32 percent? Dr. Otoadese very candidly said no. No. That‘s not the issue here. That wasn‘t the question or decision he was deciding. He was relying on a report he had a reason to rely on. He had ordered the test, and his own view of Dr. Cammoun‘s imaging, 65 to 70 percent. That was the information supporting the recommendation and decision.
In short, the fighting issue on standard of care was not over the conditions that would justify endarterectomy. It was over whether McGrew had those conditions on September 2, 2014—or at least whether Dr. Otoadese had reasonably relied on others to conclude that he had them.
We have found that the district court erred in refusing to admit Dr. Bekavac‘s and Dr. Halloran‘s complete medical records from the fall of 2014, Dr. Bekavac‘s testimony on standard of care, and Dr. Halloran‘s testimony on the degree of stenosis. These opinions were set forth in contemporaneous medical records that had been disclosed to the other side; no one retained either doctor to provide these opinions. Still, Dr. Bekavac was permitted to explain his 40% estimate to the jury in detail. He also told the jury about Dr. Halloran‘s 32% estimate and added that Dr. Halloran could utilize computer software to derive an estimate, a “more accurate way of measuring.”
Also, Dr. Bekavac‘s views on whether the surgery should have occurred probably filtered through to the jury. When asked about the 30% discrepancy between his estimate of stenosis and Dr. Otoadese‘s, Dr. Bekavac testified it was “a significant difference.”
In the end, though, we cannot find harmless error. We draw, in part, on our review of the closing arguments. They are often a barometer of how the case was tried and whether the presence or absence of certain evidence mattered. See, e.g., State v. Skahill, 966 N.W.2d 1, 17 (Iowa 2021) (concluding that the admission of a video was not harmless error in part because the video “featured prominently in the State‘s closing argument“). In her closing, Dr. Otoadese‘s attorney capitalized on the lack of standard of care testimony coming from anyone on the plaintiffs’ side other than their hired gun, Dr. Adams. As Dr. Otoadese‘s attorney put it, “Dr. Adams is the source of the claims in this case. You‘ve heard a lot about Dr. Bekavac, but in fairness, folks, the criticisms of Dr. Otoadese don‘t come from Dr. Bekavac. They come from Dr. Adams.”
Furthermore, Dr. Bekavac was a friend of Dr. Otoadese. This was acknowledged by both Dr. Bekavac and Dr. Otoadese. Thus, if the McGrews had been able to point to Dr. Bekavac‘s direct, real-time criticisms of his friend Dr. Otoadese in the medical record, i.e., “40% of stenosis was not significant to justify endarterectomy in my opinion,” that might have been compelling.
In addition, Dr. Otoadese‘s attorney took advantage of the absence of Dr. Halloran, stating, “[A]ll you‘ve heard about Dr. Halloran is a number, 32 percent.”5 If Dr. Halloran had been able to testify, and if his October 9, 2014 medical record had been introduced, there would have been much more than a number. To our untrained judicial eye, the medical record is
Accordingly, we are not convinced the error was harmless and we reverse and remand for a new trial.
V. Conclusion.
For the foregoing reasons, we reverse the judgment of the district court and remand the case for a new trial. The decision of the court of appeals is affirmed in part and vacated in part.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
All justices concur except Oxley, J., who takes no part.