Aura Daraba v. Jeffrey J. Sturdivant, D.D.s, and Drs. Sturdivant and Mann, P.C. D/B/A Smile Orthodontics

• Court: Court of Appeals of Iowa
• Decided: February 8, 2017
• Docket: 16-0343
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0343 Filed February 8, 2017

AURA DARABA, Plaintiff-Appellant,

vs.

JEFFREY J. STURDIVANT, D.D.S, and DRS. STURDIVANT and MANN, P.C. d/b/a SMILE ORTHODONTICS, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.

A medical malpractice plaintiff appeals the district court’s decision to grant

summary judgment to the defendants. AFFIRMED.

Aura Daraba, Ames, pro se appellant.

Roland D. Peddicord and Joseph M. Barron of Peddicord, Wharton,

Spencer, Hook, Barron & Wegman, LLP, West Des Moines, for appellees.

Considered by Vogel, P.J., and Tabor and Mullins, JJ. 2

VOGEL, Presiding Judge.

Aura Daraba appeals the district court’s order that granted the motion for

summary judgment filed by Jeffrey J. Sturdivant, D.D.S., and Drs. Sturdivant and

Mann, P.C., d/b/a Smile Orthodontics (Dr. Sturdivant). Daraba asserts various

reasons why summary judgment was not proper in this case, and she asks that

we reverse and remand the matter for trial.

Daraba consulted with Dr. Sturdivant for a misalignment of her teeth

starting in April 2010. In order to correct her alignment, Daraba needed oral

surgery. Daraba sought consultation with multiple oral surgeons over the course

of the next two years. She ultimately settled on a surgeon who proposed

operating on her upper and lower jaw. Daraba alleges as the basis for her

malpractice action that Dr. Sturdivant failed to properly prepare her for surgery on

her upper and lower jaw, requiring an additional eleven months of orthodontic

treatment with another orthodontist before she was able to undergo surgery.

Daraba filed a lawsuit against Dr. Sturdivant on July 1, 2014, alleging

claims of medical negligence, res ipsa loquitur,1 lack of informed consent, and

medical battery. Over a year after the lawsuit was filed, Dr. Sturdivant filed his

motion for summary judgment, asserting Daraba lacked an expert opinion to

support any of her claims. After a hearing, the court issued its ruling on January

28, 2016, granting Dr. Sturdivant’s motion for summary judgment on all claims.

Daraba appeals.

1 “Res ipsa loquitur is a rule of evidence which, when applied, permits, but does not compel, an inference that a defendant was negligent.” Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 166 (Iowa 1992). 3

We review the district court’s ruling on a motion for summary judgment for

correction of errors at law. Estate of Gray ex rel. Gray v. Baldi, 880 N.W.2d 451,

455 (Iowa 2016). To the extent Daraba challenges the district court’s grant of her

counsel’s motion to withdraw or the court’s denial of her motion to continue the

hearing on the motion for summary judgment, our review is for an abuse of

discretion. See State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995) (motion to

withdraw as counsel); Good v. Tyson Foods, Inc., 756 N.W.2d 42, 46 (Iowa

2008) (motion to continue).

“Generally, when the ordinary care of a physician is an issue, only experts

can testify and establish the standard of care and the skill required.” Kennis v.

Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992). Expert testimony

may not be necessary if “the physician’s lack of care [is] so obvious as to be

within comprehension of a layman” or if “the physician injured a part of the body

not involved in the treatment.” Id. (citation omitted). As the district court correctly

noted, these exceptions to providing an expert opinion in a medical negligence

action are not applicable here. There was no allegation another part of Daraba’s

body was injured by Dr. Sturdivant’s care nor is a lay person able to understand

Daraba’s allegations that Dr. Sturdivant provided improper orthodontic care.

Without expert testimony, Daraba cannot establish the standard of care or

a causal relationship between Dr. Sturdivant’s actions and her allegations of

harm. See id. (setting out the prima facie elements of a medical negligence

case). Likewise, an expert opinion was necessary for Daraba to establish her

claims of res ipsa loquitur, lack of informed consent, and medical battery. See id.

at 167 (noting expert opinion is needed for res ipsa loquitur if the foundational 4

facts are outside the common experience of lay persons); id. at 166 (“[A] claim of

lack of informed consent is an issue beyond the common knowledge of

laypersons and requires expert evidence.”); id. at 164 (noting expert opinion is

needed in a medical battery case to prove the treatment provided was a totally

different type of treatment than what the plaintiff consented to).

Daraba asserts there is a material fact in dispute, which prevents

summary judgment, but she fails to inform this court what that material fact is.

She also claims the case was not ripe for summary judgment because she

needed additional time to start discovery, the court should not have allowed her

attorney to withdraw, there was an improper ex parte communication between

defense counsel and the court, and Dr. Sturdivant’s affirmative defenses were

inadequate. We note the case had been on file since July 2014. By the time of

the summary judgment hearing, the deadline for Daraba to designate an expert

witness had passed. We conclude the motion for summary judgment was not

premature. Likewise, her counsel’s withdrawal, the alleged ex parte

communication, and the adequacy of Dr. Sturdivant’s affirmative defenses do not

impact the district court’s grant of summary judgment in light of Daraba’s failure

to provide expert testimony to support her claim.

We affirm the district court’s decision.

AFFIRMED.