Rhonda Hall, Individually and as the Injured Parent of Malika and Miranda, and Bob Hall, Husband of Rhonda Hall v. Jennie Edmundson Memorial Hospital and Nebraska Methodist Health System, Inc.
IN THE SUPREME COURT OF IOWA
No. 10–1516
Filed April 13, 2012
RHONDA HALL, Individually and as
the Injured Parent of Malika and Miranda,
and BOB HALL, Husband of Rhonda Hall,
Appellants,
vs.
JENNIE EDMUNDSON MEMORIAL HOSPITAL
and NEBRASKA METHODIST HEALTH SYSTEM, INC.,
Appellees.
Appeal from the Iowa District Court for Pottawattamie County,
Gregory W. Steensland, Judge.
After a bench trial, plaintiffs appeal and defendants cross-appeal
from district court’s judgment in favor of defendants in an action for
negligent credentialing. AFFIRMED.
John M. French of Law Offices of John M. French, Council Bluffs,
and Joseph B. Muller and Ronald J. Palagi of The Law Offices of Ronald
J. Palagi, P.C., L.L.O., Omaha, Nebraska, for appellant.
Michael W. Ellwanger and Michael P. Jacobs of Rawlings, Nieland,
Killinger, Ellwanger, Jacobs, Mohrhauser & Nelson, L.L.P., Sioux City,
for appellee Jennie Edmundson Memorial Hospital.
Robert A. Mooney and Michael J. Whaley of Gross & Welch, P.C.,
L.L.O., Omaha, Nebraska, for appellee Nebraska Methodist Health
System, Inc.
2
HECHT, Justice.
The plaintiffs in this case sued a surgeon alleging negligent
performance of a pancreaticoduodenectomy and sued a hospital
contending it negligently granted credentials to the surgeon. In this
appeal from a bench trial, the plaintiffs contend the district court applied
the wrong standard of care in adjudicating their claim of negligent
credentialing against the hospital. Because we conclude the district
court applied the standard of care advocated by the plaintiffs and
substantial evidence supported the district court’s conclusion that the
hospital did not breach the standard of care, we affirm the district court’s
judgment in favor of the defendants.
I. Background Facts and Proceedings.
On April 25, 2007, Rhonda Hall underwent a
pancreaticoduodenectomy, also known as a Whipple procedure, at
Jennie Edmundson Memorial Hospital (JEMH). The procedure was
intended to discern whether a mass situated on the neck of Hall’s
pancreas was malignant and to remove it if it was not. Dr. Eric Bendorf,
a board certified general surgeon, performed the surgery.
Dr. Bendorf had originally sought and was granted temporary
general surgical privileges 1 at JEMH when he concluded his residency in
1997. Afterwards, JEMH reviewed Dr. Bendorf for reprivileging
approximately every two years. For each request for renewal of the
doctor’s privileges, JEMH conducted research on Dr. Bendorf’s
1The parties acknowledge that the terms “credentialing” and “privileging” were
used interchangeably at trial. However, the plaintiffs note that although the terms are
closely related, they do refer to distinct concepts. According to the plaintiffs,
“credentialing” refers to the process of determining whether a doctor is qualified to be
on the medical staff. “Privileging” refers to the determination by the hospital as to
which specific procedures a doctor will be allowed to perform within the hospital.
3
experience and qualifications, beginning with a consultation with the
Nebraska Credentialing Verification Organization (NCVO), which gathers
information from schools and teaching hospitals. JEMH also reviewed
internal information about Dr. Bendorf’s work within the hospital,
conducted a criminal record check, and reviewed his history, if any, of
malpractice claims (the record indicates Dr. Bendorf had no malpractice
claims prior to Hall’s surgery). The information gathered was then
considered by a series of JEMH committees. The first of these
committees, which includes a physician serving as Vice President for
Medical Affairs, reviewed the packet of information to ensure it was
complete. Next the packet was forwarded to the chair of the surgical
department. After approval by the surgery department chair, the request
moved on to the credentialing committee which included doctors, the
chief nurse, and several administrators. After approval by the
credentialing committee, the packet was forwarded to the hospital’s
executive committee, a group comprised of medical staff from each
department of the hospital. After approval by the executive committee,
the packet was submitted to the JEMH board of directors for final
approval. A subcommittee of the board of directors reviewed the packet
and made a recommendation to the board for renewal of Dr. Bendorf’s
privileges. The board, consisting of both doctors and laypeople, granted
Dr. Bendorf’s requests for renewal of his privileges in 1999, 2000, 2002,
2004, 2005, and again in 2007, shortly before Hall’s surgery.
The Joint Commission on the Accreditation of Hospitals (JCAH) is
a national organization which promulgates standards, conducts surveys,
and accredits hospitals. JEMH is accredited by the JCAH. In 2001,
JCAH issued requests that JEMH make improvements in its
credentialing of physicians. They were addressed by JEMH and
4
approved by JCAH. In 2004 and 2007, JEMH passed JCAH’s survey in
credentialing.
The Whipple procedure is a complicated surgery, involving the
removal and reattachment of portions of several organs, including the
pancreas, the small intestine, the stomach, the gallbladder, and the
common bile duct. Of specific concern is the possibility of severing the
patient’s superior mesenteric vein (SMV). During the procedure on
April 25, 2007, Dr. Bendorf did sever Hall’s SMV. Although he was
initially able to stop the bleeding, Hall began to bleed again when the
surgery was resumed. Dr. Bendorf ultimately discontinued the
procedure, and Hall was transferred by ambulance to the University of
Nebraska Medical Center where the surgery was completed by another
surgeon.
Hall was comatose for almost two months. She has since
undergone repeated surgeries, including a three-organ transplant
procedure, and continues to have health problems because of the failed
surgery.
Hall and her husband sued Dr. Bendorf, JEMH, and Nebraska
Methodist Health System, Inc. (NMHS). 2 The Halls settled with
Dr. Bendorf, but their claims against JEMH and NMHS proceeded to a
bench trial. The Halls alleged JEMH and NMHS were negligent in
granting Dr. Bendorf privileges to perform the Whipple procedure. 3
2NMHS is a nonprofit corporation affiliated with several different health care
facilities, including JEMH, but does not itself provide health care services. Instead,
NMHS provides its affiliates with certain business services, including information
technology and marketing assistance.
3The Halls contended NMHS controlled the JEMH credentialing process and was
itself negligent in granting Dr. Bendorf privileges to perform the Whipple procedure.
The allegation of NMHS’s control was based on evidence of the relationship between
5
The heart of the Halls’ claim against JEMH and NMHS was that
Dr. Bendorf did not have sufficient experience performing the Whipple
procedure to support a grant of privileges for the procedure in 2007. He
had performed only four Whipple procedures in the previous ten years
and none in the three years preceding Hall’s surgery. The parties
disagreed whether the court should hold JEMH and NMHS to a
“professional” standard of care or a “lay” standard of care when assessing
whether they acted reasonably when they approved Dr. Bendorf’s request
for surgical privileges, specifically to perform the Whipple procedure.
Both sides offered expert testimony and briefed the issue for the district
court.
The district court issued its findings of fact, conclusions of law,
and ruling on May 27, 2010. The district court first concluded that
NMHS had the power to exercise control over the credentialing process at
JEMH and accordingly, owed a duty to the Halls. The district court also
concluded that, although this court has not explicitly recognized the tort
of negligent credentialing, the overwhelming majority of courts that have
considered the issue have recognized the cause of action, and the district
court concluded it is a viable claim in Iowa. Having determined the
plaintiffs had pled a cognizable tort under Iowa law, the district court
concluded it should apply a nonprofessional standard of care in this case
because the decision to reprivilege Dr. Bendorf was made by laypeople
and involved nonmedical, administrative, or ministerial acts by a
hospital. However, the district court concluded JEMH and NMHS did not
________________________________
JEMH and NMHS which authorized NMHS to appoint the CEO of JEMH and some of
the directors serving on the board of JEMH.
6
breach the standard of care by granting Dr. Bendorf privileges to perform
a Whipple procedure and entered judgment in favor of the defendants.
The Halls appealed, contending that although the district court
was correct in its conclusion that a lay standard of care applied, the
court actually applied a professional standard of care and the court erred
in concluding JEMH and NMHS did not breach the applicable standard
when granting Dr. Bendorf privileges to perform the Whipple procedure.
The Halls also contend the district court made two erroneous evidentiary
rulings. JEMH and NMHS cross-appealed, arguing the district court
correctly concluded they did not breach a duty under the circumstances
of this case, but contending the district court erred in failing to apply a
professional standard of care. NMHS also asserts the district court erred
in deciding NMHS owed the Halls a duty to exercise reasonable care in
deciding whether to grant Dr. Bendorf privileges because it had no
control over the granting or denying of privileges at JEMH.
II. Scope and Standards of Review.
Our review is for corrections of errors at law. Iowa R. App. P.
6.907. The district court’s findings of fact have “the effect of a special
verdict,” id., and “are binding on us if supported by substantial
evidence,” Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490
(Iowa 2000). We review the district court’s evidentiary rulings for an
abuse of discretion. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002).
III. Discussion.
A. Negligent Credentialing Cause of Action. The Halls
encourage us to use this appeal as an opportunity to recognize a cause of
action for negligent credentialing in Iowa. The district court predicted
that we would and allowed the claim to proceed to trial. However, the
defendants JEMH and NMHS did not contend either in the district court
7
or on appeal that negligent credentialing is not actionable in Iowa. We
assume without deciding that the tort is actionable in this state. As we
find no reversible error in any of the district court’s rulings challenged on
appeal by the Halls, we conclude we need not decide the question
whether the tort is actionable. 4
B. The District Court’s Application of the Standard of Care.
The parties disagree over the appropriate standard of care that should
apply to allegations of negligent credentialing if the tort is recognized.
The district court concluded a hospital’s duty to its patients stems from
the general duty to exercise reasonable care that arises whenever an
actor’s conduct creates a risk of harm, citing section 7 of the
Restatement (Third) of Torts and Thompson v. Kaczinski, 774 N.W.2d 829
(Iowa 2009). The district court further concluded that because the
ultimate decision whether to grant privileges at JEMH was made by the
board of directors, consisting of eleven lay members, there was “no basis
for applying a professional standard of care to the decisions made by
laypeople,” relying on Kastler v. Iowa Methodist Hospital, 193 N.W.2d 98,
102 (Iowa 1971) (applying reasonable care standard in case involving an
injury to a patient while showering in a hospital) and University of
Mississippi Medical Center v. Pounders, 970 So. 2d 141, 148 (Miss. 2007)
(applying lay standard of care in case involving injury to a patient caused
by a hospital escort because the escort’s conduct did not involve
professional conduct). The district court concluded that the appropriate
standard of care in this case was “reasonable care under the
4Prominent among the reasons we defer a decision on the existence of the tort of
negligent credentialing is the fact that the defendants have not claimed the tort should
not be recognized and we prefer to confront and decide the issue in a case in which the
matter is disputed and briefed by the parties.
8
circumstances” and that expert testimony was not required to establish
the standard.
The Halls assert the district court correctly concluded a “lay”
standard of care should apply but contend the district court erred in
actually applying a higher “professional” standard of care advocated by
the defendants. The Halls support their argument by noting the district
court’s ruling referred to expert testimony introduced by the defendants
evidencing the “customary practice of hospitals in the Midwest” and
described this evidence as “compelling.” The Halls argue this reference
by the district court to the customary practice of hospitals coupled with
the court’s failure to expressly discuss and apply in its ruling the factors
bearing upon the existence of a general duty to exercise reasonable care
under section 7 of the Restatement (Third) of Torts together demonstrate
the district court did not measure the defendants’ conduct against a “lay”
standard of care as it purported to.
Our review of the record and the district court’s ruling does not
support the Halls’ argument. The district court clearly concluded the
appropriate standard of care under the circumstances of this case was
the lay standard advocated by the Halls—“reasonable care under the
circumstances.” Although the district court mentioned the defendants’
evidence of custom, the court’s ruling quoted La Sell v. Tri-States Theatre
Corp., 233 Iowa 929, 943, 11 N.W.2d 36, 44 (1943):
The standard of custom cannot be substituted for the legal
standard of reasonable or ordinary care under the
circumstances. Following an approved method is merely
evidentiary and is not conclusive on the question of ordinary
care. The standard of care is ordinary care under the
circumstances, and not what others have done under like
circumstances.
The district court then noted it found the evidence of hospitals’
customary practice “compelling” but “not necessarily conclusive.”
9
Ultimately, the district court concluded “under an ordinary negligence
analysis, defendants were not negligent in privileging and re-privileging
Dr. Bendorf to perform a Whipple procedure at JEMH.”
We conclude the district court applied the standard of care
advocated by the Halls. We also conclude the district court’s finding that
JEMH and NMHS did not breach the standard is supported by
substantial evidence. The record demonstrates that JEMH researched
Dr. Bendorf’s credentials and surgical record extensively before renewing
his privileges to conduct general surgery. Dr. Bendorf’s application
received several levels of review from various committees within the
hospital, many of them including surgeons and physicians who had
special knowledge regarding whether a surgeon with Dr. Bendorf’s
experience would be qualified to perform a Whipple procedure even
though he had not performed one in the recent past. Accordingly, we
affirm the judgment of the district in favor of the defendants.
C. The Defendants’ Cross-Appeal. Because we have concluded
the district court’s judgment in favor of the defendants should be
affirmed, we find it unnecessary to address the defendants’ argument
that the district court should have applied a higher “professional”
standard of care.
D. NMHS’s Cross-Appeal. NMHS, in its cross-appeal, argues the
district court unnecessarily and incorrectly concluded NMHS controlled
the privileging process at JEMH and thus owed a duty to the Halls for
granting privileges to Dr. Bendorf. NMHS argues that the district court’s
decision was tantamount to an advisory opinion given that the court
concluded no breach of the duty of care occurred. However, because the
district court found, and we now affirm, that NMHS breached no duty,
any error in the district court’s conclusion that NMHS owed a duty to the
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Halls was rendered harmless. See Grefe & Sidney v. Watters, 525
N.W.2d 821, 826 (Iowa 1994).
E. Evidentiary Rulings. The Halls contend the district court
erred in two evidentiary rulings. We will address each in turn.
1. Lack of remedial measures. The Halls contend the district court
erred by refusing to let them present evidence that after the failed
Whipple procedure on Hall, JEMH and NMHS did not change their
credentialing policies or procedures. The Halls acknowledge that
normally evidence of remedial measures is not admissible. Iowa R. Evid.
5.407 (“When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur, evidence of
the subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event.”). However, the Halls
argue that the failure of JEMH and NMHS to change their credentialing
policies and procedures after the unsuccessful surgery in this case is not
evidence of subsequent remedial measures, but is evidence of a failure to
undertake such measures. The Halls argue this evidence is not
prohibited under rule 5.407 and is relevant to show that the procedures
utilized by JEMH and NMHS were insufficient and unreasonable because
they would purportedly allow Dr. Bendorf to perform the Whipple
procedure after the disastrous results in Hall’s case.
The district court excluded the evidence pursuant to rule 5.407 as
evidence of remedial measures and also sustained an objection on
relevance grounds. We conclude the district court did not abuse its
discretion in excluding the evidence. We agree that the evidence is not
relevant to any issue in this case. The theory actually advanced in this
case was that JEMH and NMHS were negligent in renewing Dr. Bendorf’s
privileges in 2007. The district court did not abuse its discretion in
11
concluding the fact that JEMH and NMHS did not change their policies
and procedures after the failed surgery is not probative of whether they
acted negligently in granting Dr. Bendorf privileges before Hall’s surgery.
Accordingly, we conclude the district court did not abuse its discretion in
excluding the evidence.
2. Privileging documents. The Halls also contend the district court
erred in denying them access to the full privileging file on Dr. Bendorf
while allowing the defendants to rely on some evidence from the
privileging file at the trial. Specifically the Halls contend the district
court erred in denying them access to a portion of the 2007 credentialing
file and the entire 2009 credentialing file.
JEMH contends that the Halls have not preserved error on this
claim, that they have not shown they were prejudiced by the denial of
access to any part of the credentialing files, and that the Halls could
have obtained the information elsewhere but did not try.
We conclude the Halls failed to preserve error on this issue. The
record indicates most of the credentialing files were voluntarily disclosed
to the Halls during discovery. When the Halls sought the remainder of
the 2007 file and the 2009 file, the district court, relying on the court of
appeals decision in Day v. Finley Hospital, 769 N.W.2d 898, 901 (Iowa Ct.
App. 2009), concluded credentialing files were protected from disclosure
under the peer review statute, Iowa Code section 147.135 (2009). We
recently held the privilege protecting peer review documents was not
waived by a hospital despite its use of some of them as exhibits in a prior
trial in the same case. Cawthorn v. Catholic Health Initiatives Iowa Corp.,
806 N.W.2d 282, 291 (Iowa 2011).
However, the Halls contend on appeal this case is distinguished
from Cawthorn because JEMH and NMHS used some of the peer review
12
records as a sword while relying on the peer review privilege as a shield.
We adverted to the “sword and shield” problem in Cawthorn, noting that
other cases have held that “as a matter of fairness, a party cannot
simultaneously rely on peer review materials for its defense while
asserting the privilege” against disclosure of the materials to the other
party. Id. at 290. However, as we were not presented with a sword and
shield scenario in Cawthorn, we have not determined how the peer review
privilege would apply in such a situation. Id. Although the Halls
objected when the district court refused to order the discovery of the
privileging files (when the privilege was being used as a shield), the Halls
expressly waived any objection when JEMH sought to use the privileged
documents by introducing them as evidence during trial. Because an
objection to the admission of evidence at trial is required for our review
on appeal, we conclude error has not been preserved on this issue. See
Iowa R. Evid. 5.103(a); State v. Martin, 704 N.W.2d 665, 669 (Iowa 2005).
IV. Conclusion.
We affirm the judgment of the district court in favor of the
defendants. As we noted in our order denying the appellants’ motion to
strike the appellees’ designation, we have considered the appellants’
argument that the appellees caused unnecessary matters to be included
in the appendix and conclude costs should be taxed to the appellant.
AFFIRMED.
All justices concur except Wiggins, J., who concurs specially.
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Hall v. Jeannie Edmundson Mem’l Hosp.
WIGGINS, Justice (concurring specially).
I concur, but write specially concerning the evidentiary ruling
regarding the district court’s failure to grant the Halls access to portions
of the 2007 credentialing file and the entire 2009 credentialing file. The
Halls, in requesting the credentialing files, failed to limit their request to
the items contained in the credentialing files that did not include the
credentialing committee’s work product in determining whether the
hospital should have credentialed Dr. Bendorf to do Whipple
procedures. 5 As I wrote in my concurring opinion in Cawthorn v.
Catholic Health Initiatives Iowa Corp., we have not adopted the court of
appeals’ decision in Day v. Finley Hospital, 769 N.W.2d 898 (Iowa Ct.
App. 2009). Cawthorn v. Catholic Health Initiatives Iowa Corp., 806
N.W.2d 282, 293 n.7 (Iowa 2011) (Wiggins, J., concurring specially). The
Halls only claimed that they were entitled to the credentialing files
because the hospital used some of the items in the credentialing files in
litigating its case. The Halls did not claim that Iowa Code section
147.135 (2009) did not protect certain items contained in the
credentialing files. Accordingly, I concur that, under this record, the
Halls were not entitled to the credentialing files they sought to obtain
from the hospital.
5Examples of items in a credentialing file that are not work product of the
credentialing committee may include the application submitted by the physician
seeking credentialing, any medical records reviewed by the credentialing committee, any
transcripts of the physician’s training, any records not generated by a peer review
committee as to a physician’s prior discipline, or any written material provided by a
third party to the committee commenting on a physician’s qualifications. Work product
may include analysis of the records reviewed by the credentialing committee or other
written documents containing the credentialing committee’s mental thoughts regarding
the physician’s qualifications.