Johnson-Krueger v. Aldrich

IN THE COURT OF APPEALS OF IOWA

No. 17-0827
Filed February 7, 2018

KIM M. JOHNSON-KRUEGER,
Plaintiff-Appellant,

vs.

ANGELA J. ALDRICH,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.

Kim Johnson-Krueger appeals the summary judgment order dismissing her

medical malpractice claim. AFFIRMED.

Kim M. Johnson-Krueger, Sioux Falls, pro se appellant.

Ellen C. Tolsma of Heidman Law Firm, Sioux City, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

Kim Johnson-Krueger sued Angela J. Aldrich, M.D., her gynecologist,

alleging she engaged in professional negligence by performing an unnecessary

hysterectomy. Johnson-Krueger designated John David Sabow, M.D., a

neurologist, as an expert witness in her medical malpractice suit and attempted to

designate Kevin W. Hamburger, M.D., an expert witness due to his prior evaluation

of Johnson-Krueger. But when deposed, Dr. Hamburger said Johnson-Krueger

had not hired him as an expert witness, he declined to testify as to the standard of

care in this case, and would only testify as to his care and treatment.

Dr. Aldrich moved for summary judgment, alleging Johnson-Krueger could

not establish a prima facie case of medical malpractice because she did not

designate an expert who could testify to the appropriate standard of care.

Johnson-Krueger resisted, asserting Dr. Sabow’s criticisms of Dr. Aldrich’s work

were valid and Dr. Hamburger’s inconsistent diagnosis, compared to Dr. Aldrich’s,

is enough to prove causation. The district court granted summary judgment,

finding:

[T]he deadline for designating expert witnesses has passed.
Dr. Sabow is a neurologist with no specialized knowledge qualifying
him to give a causation opinion as to medical standards of care of an
obstetrician/gynecologist. Similarly, the mere fact that Dr.
Hamburger arrived at a different diagnosis does not by itself establish
expert testimony as to a breach of standard of care.
Although no motion to exclude the witnesses’ testimony has
been filed, the Court finds that both witnesses would be disqualified
from testifying as to causation. Due to this shortcoming, defendant
has established that plaintiff’s proof will be deficient as to the
causation element of the plaintiff’s case. As the plaintiff will not be
able to establish this element, the plaintiff’s case fails as a matter of
law.
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On appeal, Johnson-Krueger asserts the district court abused its discretion

in granting Dr. Aldrich’s motion for summary judgment because Dr. Sabow’s and

Dr. Hamburger’s opinions create a question of fact that should be sent to the jury.1

To establish a prima facie case of medical malpractice, Johnson-Krueger

must submit evidence that shows: (1) the applicable standard of care, (2) a breach

of the standard of care, and (3) a causal relationship between the breach and the

harm the plaintiff allegedly experienced. See Peppmeier v. Murphy, 708 N.W.2d

57, 61–62 (Iowa 2005). Generally, a plaintiff must prove each element through

expert testimony. Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001).2

A person need not be licensed in a particular area, or a specialist in a

particular field, to offer expert medical opinion. Hutchison v. Am. Family Mut. Ins.

Co., 514 N.W.2d 882, 886 (Iowa 1994). “It is not enough, however, that a witness

be generally qualified in a field of expertise; the witness must also be qualified to

answer the particular question propounded.” Tappe v. Iowa Methodist Med. Ctr.,

477 N.W.2d 396, 402 (Iowa 1991). Here, Johnson-Krueger attempts to use Dr.

Sabow’s expert opinion, as a neurologist, to show the hysterectomy was

unnecessary. The problem is Dr. Sabow has no experience in gynecology, is not

an expert on how to perform a hysterectomy, and agrees a gynecologist has more

knowledge about whether a hysterectomy is needed than would a neurologist.

1
Our review is for correction of errors at law. Seneca Waste Sols., Inc. v. Sheaffer Mfg.
Co., 791 N.W.2d 407, 410–11 (Iowa 2010).
2
Iowa is committed to a liberal rule of admission of expert testimony; Iowa Rule of
Evidence 5.702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.
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Because Dr. Sabow is not qualified to answer the question of whether Dr. Aldrich

breached the standard of care, we agree with the district court that his testimony

cannot be used to prove the causation element of Johnson-Krueger’s case.

Likewise, Dr. Hamburger was Johnson-Krueger’s initial physician; however

he only performed one evaluation, which returned normal results. At the time of

the evaluation, Dr. Hamburger did not feel Johnson-Krueger’s problem was

gynecological, but since she experienced pain, he recommended that she seek

additional care. At his deposition, he declined to opine on whether Dr. Aldrich

breached the standard of care or to act as an expert witness, and said it was

possible Johnson-Krueger’s condition worsened to the point where she needed

further gynecological treatment after his one-and-only evaluation. Further, there

is no record Dr. Hamburger ever opined to the standard of care, and there was no

motion compelling him to do so. We agree with the district court that his deposition

testimony does not establish expert testimony as to a breach of the standard of

care.

Because Johnson-Krueger is unable to produce expert testimony that Dr.

Aldrich breached the standard of care, we agree with the district court that she

failed to generate a jury question on her professional negligence claims.

AFFIRMED.