IN THE COURT OF APPEALS OF IOWA
No. 17-0716
Filed September 26, 2018
ROGER WADDELL, Administrator of the Estate of CHRISTINA WADDELL,
Plaintiff-Appellant,
vs.
UNIVERSITY OF IOWA COMMUNITY MEDICAL SERVICES, INC. d/b/a
UNIVERSITY OF IOWA QUICK CARE NORTH LIBERTY, a/k/a UI FAMILY
CARE CENTER NORTH LIBERTY,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
Plaintiff appeals the summary judgment order dismissing a medical
malpractice action. AFFIRMED.
James K. Weston II of Tom Riley Law Firm, PLC, Iowa City, for appellant.
Desirée A. Kilburg, Constance M. Alt, and Nancy J. Penner of Shuttleworth
& Ingersoll, PLC, Cedar Rapids, for appellee.
Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
The plaintiff appeals from the district court’s summary judgment order
dismissing the medical malpractice lawsuit against the defendant. The court
concluded the plaintiff failed to establish essential elements of his claim.
I. Background Facts and Proceedings
On June 10, 2011, Christina Waddell sued University of Iowa Community
Medical Services, Inc, (UICMS) d/b/a University of Iowa Quick Care North Liberty
(Quick Care) a/k/a UI Family Care Center North Liberty (Family Care).1 She
alleged negligence in the medical care she received at Quick Care and Family
Care for failing to diagnose and treat cancer in her finger during visits to two of its
clinics.
Quick Care and Family Care operate out of the same facility. Family Care
offers services during normal business hours, including services dealing with long-
term health care issues. Quick Care is a walk-in medical clinic providing services
during evening hours and Saturday mornings, and it is geared toward more
common illnesses, such as the flu or strep throat. If other or further medical care
is required, Quick Care refers the individual to a primary care physician or an
emergency room.
In June 2009, Christina presented at Quick Care with a sore on the ring
finger of her left hand and a rash on her face. A nurse practitioner diagnosed
Christina with a fungal infection, prescribed a topical medication, and advised her
to follow up with a primary care physician. Christina returned to Quick Care in July
1
The suit initially included the State of Iowa as a defendant. The court granted the State
of Iowa’s motion for summary judgment and dismissed it as a party in September 2012.
3
and presented to a physician’s assistant with complaints that, despite using the
prescribed topical medication, the sore on her ring finger had not improved, her
fingernail slid off, and the rash on her face was still present. The physician’s
assistant removed the remaining fingernail and instructed Christina to soak the
finger in Epsom salt and apply antibiotic ointment to her finger and topical creams
to the facial rash. In August, Christina presented herself to Family Care for a non-
healing nail bed. A physician referred Christina to the University of Iowa Hospitals
and Clinics (UI) dermatology department for a possible biopsy with the concern of
nail-bed cancer. An appointment was scheduled for August 11.2 Christina was
not seen on August 11 and an undated note on the referral form indicates the
appointment was canceled in the system.3
In December, Christina presented at the UI dermatology department to Dr.
Mary Stone with a lump on her ring finger that she stated began three years prior
as a pink line then darkened. Christina also presented with the development of
brown spots on her fingertip, which enlarged over the prior month. Dr. Stone
conducted a biopsy, diagnosed Christina with malignant melanoma, and referred
Christina to the oncology department.
On January 5, 2010, Dr. Mohammed Milhem, a UI oncologist, saw Christina
for her melanoma treatment. In her history to Dr. Milhem, Christina indicated she
had nail issues for the past two years, which began as a white streak that widened
2
Notes on the referral form state attempts were made by Family Care to contact Christina
about the appointment. The UI dermatology department also attempted to reach Christina
by phone. The record does not indicate they were successful in reaching Christina. Her
father was notified on August 6.
3
The reason why and the person who cancelled the appointment are not in the record.
4
over time and darkened in color. She also reported that since 2008, her nail had
softened in the middle. Christina told Dr. Milhem she visited Quick Care on two
occasions for treatment of her fingernail. On each occasion she was prescribed a
fungal cream. After neither cream worked, she stated she was then referred to the
UI dermatology department. She did not mention any visit to Family Care. After
his examination and discussion with the hospital tumor board, Dr. Milhem
determined the best course of treatment was a wide excision of the tumor—i.e.,
amputation of the finger—and a biopsy of lymph nodes, which would govern
decisions on further treatment.
On January 29, doctors amputated Christina’s finger. At the same time, Dr.
Hisakazu Hoshi, a surgical oncologist, performed a biopsy of Christina’s lymph
nodes and determined her cancer was stage three as the cancer had spread to a
sentinel lymph node but not to an axillary node. Despite treatment, the cancer
continued to spread to her lung, bone marrow, and brain. Christina died on March
30, 2012. After her death, her father, as administrator of her estate, was
substituted as plaintiff in Christina’s negligence suit. The plaintiff filed a
designation of four experts, naming Kim Quinn, R.N., and Drs. Hoshi, Milhem, and
Stone as experts who would testify on “issues of informed consent, standard of
care, causation and damages.”
In 2013, UICMS moved for summary judgment, alleging plaintiff’s
designated expert, Quinn, was not qualified to provide testimony on the applicable
standards of care. UICMS additionally moved to strike Quinn’s testimony. In the
summary judgment motion, UICMS contended the plaintiff could not establish a
prima facie case for medical malpractice due to a lack of causation evidence. The
5
court denied both of the motions. In its written ruling, the court held there were
genuine issues of material fact as “[r]easonable minds could draw different
inferences and reach different conclusions from the facts as presented through the
testimony of Drs. Hoshi, Stone and Milhem.” The court also concluded Quinn was
“sufficiently qualified to testify regarding the operations, practices and policies of
the clinic.”
In August 2013, the defense filed a motion in limine, and in July 2015, it filed
an updated trial brief, both of which presented issues with Quinn’s expert opinions,
her qualifications, and the element of causation. On April 6, 2017, the court held
a hearing on the defense’s motion and the issues raised in its updated trial brief.
The plaintiff indicated his specific claims of negligence were for the failures to
properly treat Christina’s condition and refer her for additional care. He conceded
he was unlikely to submit a claim based on a failure to properly diagnose. The
court ruled Quinn was not qualified to testify about causation or on the treatment,
care, or decisions made by the clinic personnel who treated Christina but she was
“qualified to testify to her criticisms of the referral system and delay in scheduling
and obtaining a referral.” During the hearing, the court noted its concerns about
causation.
On April 11, the court held a hearing on the defense’s request to reconsider
the 2013 summary judgment denial, based on the issue of causation. Because
Quinn could not testify on the element of causation, this left the plaintiff to establish
causation with the testimony of the four treating doctors, including the three
designated as expert witnesses. The defense contended there was insufficient
evidence on causation based on their expected trial testimony. The plaintiff
6
resisted, asserting the prior ruling was correct and noting the treating physicians
testified by depositions that, with the type of cancer Christina had, the earlier the
treatment, the better her chances of survival. The plaintiff argued the delay in
treatment caused by the clinics hindered the ability of UI to treat Christina and limit
the spread of her cancer. After reviewing the deposition testimony, the court
concluded “there [was] no genuine issue of material fact on the issue of proximate
cause. Defendant is entitled to a judgment as a matter of law.” The court granted
the renewed motion for summary judgment and dismissed the suit with prejudice.
On appeal, the plaintiff contends the court erred in granting summary
judgment because no facts or law changed in the time period between the court’s
original denial of the motion for summary judgment in 2013 and the court’s grant
of the renewed motion in 2017.
II. Standard of Review
We review summary judgment rulings for the correction of errors at law.
Andersen v. Khanna, 913 N.W.2d 526, 535 (Iowa 2018). Summary judgment is
appropriate “if the record reveals only a conflict concerning the legal consequences
of undisputed facts.” Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015). “[W]e
examine the record before the district court to determine whether any material fact
is in dispute, and if not, whether the district court correctly applied the law.” Roll v.
Newhall, 888 N.W.2d 422, 425 (Iowa 2016), as amended (Mar. 7, 2017). “We view
the record in the light most favorable to the nonmoving party” and “draw all
legitimate inferences the evidence bears that will establish a genuine issue of
material fact.” Andersen, 913 N.W.2d at 535 (citations omitted). “A fact is material
when its determination might affect the outcome of a suit. A genuine issue of
7
material fact exists when reasonable minds can differ as to how a factual question
should be resolved.” Id. “The moving party has the burden of showing the
nonexistence of a material fact.” Nelson, 867 N.W.2d at 6. “Speculation is not
sufficient to generate a genuine issue of fact.” Id. at 7.
III. Analysis
“To establish a prima facie case of medical malpractice, the plaintiff must
demonstrate the applicable standard of care, the violation of this standard of care,
and a causal relationship between the violation and the harm allegedly suffered by
the plaintiff.” Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001).
“Expert testimony is nearly always required to establish each of these elements.”
Id. “[P]roximate cause . . . cannot be based upon mere speculation,” nor can any
“consequential fact . . . be resolved by pure guesswork.” Id.
In its ruling on the record on the renewed motion for summary judgment,
the court reasoned:
THE COURT: [Plaintiff] has made two claims against the
Defendant in this case, what we would call the usual or ordinary, if
there is such a thing, medical malpractice claim, and, secondly, lost
chance of survival, both of which require [Plaintiff] to prove that the
fault or negligence of the Defendant was a proximate cause of any
resulting damages that are appropriate under each claim.
I issued a ruling limiting the testimony of Nurse Quinn, and I
think it’s pretty much acknowledged that she’s not a causation
witness in this case. That leaves [Plaintiff] with the deposition
testimony of the four doctors I previously mentioned, and which I’m
assuming those four depositions are previously part of the record.
....
It appears to me that—and I guess we’ve, I think, made
statements maybe on or off the record—I’m not sure—by the
attorneys that the medical testimony on causation isn’t going to get
any better. There’s no new information that’s going to be presented;
is that a correct statement?
[PLAINTIFF’S COUNSEL]: Yes, Your Honor.
8
THE COURT: All right. Specifically, then, I’ve looked at Dr.
Milhem’s deposition, M-I-L-H-E-M. And . . . he’s asked, Would you—
by [PLAINTIFF’S COUNSEL], Would you agree that—with the
statement that with the type of cancer that Christina Waddell had the
sooner the treatment began the better? Yes, was his answer.
And the follow-up question, And that’s the, you know, the best
chance of stopping the cancer before it spreads in lay terms? And
the answer again was, Yes.
Dr. Stone’s deposition, . . . when asked to summarize the
course of treatment that Ms. Waddell had, her answer was, I believe
I only saw her on one occasion. And I was going to look at the exact
date, but she presented to me in consultation. It was—so 12/29/09.
She presented to me with a three-year history of progressive change
of her left fourth finger.
On page 14 an answer to a question at line 12, Three years is
a significant time span in growth of a tumor.
Question, Is it fair to say you would agree that kind of sooner
the better as far as getting in for a biopsy? And she said, Absolutely.
From my review of the depositions, and I believe from the
record we’ve previously made, that is the testimony that Plaintiff is
relying on to prove causation.
As everyone here knows, the purpose of summary judgment
is to enable the moving party to obtain a judgment promptly without
the expense of a trial when no genuine issue of material fact exists.
In looking at this issue and question, every legitimate inference that
can reasonably be deduced from the evidence should be afforded to
the non moving party and/or in this case the Plaintiff.
Concerning expert testimony on causation, the rule in Iowa is
that expert testimony indicating probability of a causal connection
between the negligence and/or fault is—and result in damages is—
is sufficient to generate a jury question on causation.
I’m finding on the record made, and specifically on Plaintiff’s
basically offered testimony on the issue of causation that we just read
into the record for Drs. Milhem and Stone, that those general
statements by the doctors do not generate genuine issue of material
fact on proximate cause under the probability standard.
I would also note that, occasionally, Plaintiff can—can meet
its burden on causation with possibility and a showing that the
described condition did not exist before. And I think that’s—that
chance for Plaintiff to avoid this dismissal is—is voided by the
testimony and the medical record that she had this condition for
approximately three years before December of 2009, which means
she had it for almost two and a half years—or not quite two and a
half years. She was aware of it for almost two and a half years before
going to the first visit at one of the Defendant’s facilities.
9
In their deposition testimony, the three doctors designated as experts, Drs.
Hoshi, Milhem, and Stone, did not make any conclusions on the duty of care or on
any breach of that duty by the clinic personnel. There is no reference in any of
their deposition testimonies to the earlier clinic visits at all. They provided no
testimony to establish a causal relationship between any alleged breaches by the
clinic and Christina’s illness, progression, or death. Instead, each doctor testified
to the actions and decisions they made in the course of treating Christina.
Notwithstanding, the plaintiff argues violations of the standard of care
resulted in a delay in Christina’s treatment, and each delay resulted in the
likelihood that her cancer would spread and ultimately result in her death. He also
argues that no additional or new testimony and evidence was presented to the
court, so nothing has changed since the 2013 denial of summary judgment, and
the ruling was therefore in error.
The plaintiff focuses his claims on the statements made by two of the
doctors, Drs. Milhem4 and Stone,5 who both testified that the earlier Christina
began treatment, the better. However, we agree with the trial court’s assessment
that the statements were too generalized to create a genuine issue of material fact
regarding causation. Their statements offer no specific relation to the clinic visits
and it would be speculative to infer their general statements relate to the clinic.
Both Drs. Milhem and Stone testified that melanoma is unpredictable and there
4
Dr. Milhem testified he agreed with the statements that “with the type of cancer that
Christina Waddell had, the sooner the treatment began, the better” and “that’s the best
chance of stopping the cancer before it spreads.”
5
Dr. Stone testified she agreed with plaintiff’s counsel’s statement, “kind of sooner the
better, as far as you getting in for a biopsy.”
10
are no methods of determining a tumor’s growth or progression at any specific
point in time prior to being seen or biopsied. Significantly, neither doctor testified
that had Christina been diagnosed or seen by UI after her clinic appointments in
June, July, or August 2009, her chances of survival would have increased. They
offered no probability on a connection between the clinics’ actions or inaction and
Christina’s chance of survival. The only testimony the doctors offered about
standards of care and chances of reoccurrences and survival focused on
Christina’s care after she was at UI, not before.
Plaintiff’s assertion is that the court erred in changing its ruling because the
law and facts did not change from the time of the 2013 denial of the motion for
summary judgment until the time the court granted the renewed motion in 2017.
However, the district court’s denial of the 2013 motion for summary judgment was
not a final judgment on the merits. See Iowa Elec. Light & Power Co. v. Lagle, 430
N.W.2d 393, 395–96 (Iowa 1988) (concluding a grant of a partial summary
judgment was not a final judgment or order). “A district court judge may review
and change a prior interlocutory ruling . . . in the same case.” McCormick v. Meyer,
582 N.W.2d 141, 144 (Iowa 1998).
The plaintiff has only the treating doctors’ testimony to establish causation,
which the plaintiff conceded during the summary judgment hearing. While, for
purposes of summary judgment, the facts of the case must be considered in a light
most favorable to the plaintiff and all inferences must be drawn in the plaintiff’s
favor, we agree with the district court that the deposition testimony of the plaintiff’s
three experts does not produce sufficient evidence of causation between the
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defendant’s alleged actions or inactions and Christina’s illness and ultimate death.
Therefore, the plaintiff cannot establish a prima facie case of medical malpractice.
Plaintiff also makes a claim under the last-chance-of-survival or loss-of-
chance doctrine. “A claim for loss of chance is not based solely on the ultimate
harm, but on evidence that the patient had a chance of avoiding the ultimate harm.”
Mead v. Adrian, 670 N.W.2d 174, 187 (Iowa 2003) (Cady, J., concurring). “The
injury is the lost opportunity of a better result, not the harm caused by the
presenting problem.” Alberts v. Schultz, 975 P.2d 1279, 1284–85 (N.M. 1999). To
succeed on this claim, a plaintiff must “demonstrate, to a reasonable degree of
medical probability, a causal link between the doctor’s negligence and the loss of
that chance.” Id. at 1286. Causation does not need to be proven to “an absolute
certainty.” Id. “[T]he last-chance-of-survival doctrine is not an alteration of the
traditional rules for determining proximate cause, but, rather, the creation of a
newly recognized compensable event to which those traditional rules apply.”
Mead, 670 N.W.2d at 178.
This claim also suffers from insufficient evidence of causation. As with the
traditional claim of negligence, the plaintiff must rely on the testimony of the three
treating physicians designated as experts in order to provide evidence of
causation. And like the other claim, there is an insufficient showing of a causal
relationship between the actions or inactions of the clinics’ medical personnel and
any loss of chance. None of the doctors testified to any loss of chance, let alone
provided any connection between any action or inaction by the defendant and
Christina’s chance of survival.
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We find the trial court was thorough in its reasoning for granting the motion
and did not err in granting summary judgment. We therefore affirm the decision.
AFFIRMED.