(dissenting).
I respectfully dissent.
A synopsis of evidence and testimony before the jury is as follows:
Ball had a weight problem. She went to Foster who agreed to operate on her and follow her until she was completely cured. The operation was performed and Foster cut Ball from her solar plexis to her pubic hair line, right through the navel. The cut was deep, and cut all linings to the backbone. A ‘black-fish cord line’ was used to sew her up. Ball started to fester and has kept on festering to the present time. Her body reacted to and rejected the suture material. Holes appeared in Ball’s incision line and the black string would come to the surface. The discharge was yellow at first and then turned green. Foster continued to look at, but do virtually nothing to remove any lumps and stitches. Ball’s condition continued to get worse. Because it was unbearable, Ball and her daughter went to Foster’s office and were told, ‘You are no longer a patient; you haven’t paid your bill; don’t come back.’ Ball tried, repeatedly, to get an appointment with Foster, and he refused to see her or treat her any more. Ball continued to drain, smell and lose weight and Ball had to leave the city of Sioux City to go to Dr. Monson in Omaha (hereinafter referred to as Monson). Monson cut out the lumps (containing the black fish cord) and that area would heal and another spot would erupt (because the entire stomach area was infected). Pain, smell, drainage and infection has been decreased by Monson. If the lumps would have been opened and the string removed the recovery of Ball would have been relatively simple and uneventful. Foster acknowledged that he contracted to operate and follow up Ball until she was free of infection. Ball suffered because of Foster’s refusal to follow up on the surgery.
I determine there is substantial evidence to support Ball’s claim Dr. Foster abandoned her and terminated his treatment of her before she was healed from Dr. Foster’s surgery. I acknowledge this evidence and testimony is not presented entirely by expert witnesses. Dr. Monson’s testimony sheds light on whether Ball’s surgery had healed when he started treating her after Dr. Foster refused to see or treat her. Ball testified that a member of Dr. Foster’s office staff told her, “You are no longer a patient; you haven’t paid your bill; don’t come back” after Dr. Foster had failed to remove the non-absorbible sutures used in the operation, which were causing either infection or a foreign body reaction.
When a physician takes charge of a case his (or her) employment continues until ended by mutual consent or his (or her) dismissal or until his (or her) services are no longer needed. McGulpin v. Bessmer, 241 Iowa 1119, 1127, 43 N.W.2d 121, 125 (1950). If there is substantial evidence to support the plaintiff’s claim, the jury should have been instructed on the issue of abandonment. Smith v. Lerner, 387 N.W.2d 576, 579 (Iowa 1986). The relationship of physician and surgeon and patient is one arising out of contract, express or implied. 70 C.J.S. Physician and Surgeon § 59 (1987).
For the above reasons and authorities, I respectfully dissent from the majority’s opinion. I would hold the trial court erred in sustaining Dr. Foster’s motion for a directed verdict as to Ball’s counterclaim. I determine there was sufficient evidence to submit this issue to the jury. A jury question was generated as to defendant’s counterclaim Dr. Foster had abandoned her.