Kammeyer v. Cedar Valley Podiatry PC

• Court: Court of Appeals of Iowa
• Decided: July 13, 2023
• Docket: 22-0850
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0850 Filed July 13, 2023

ALLAN KAMMEYER, Plaintiff-Appellant,

vs.

CEDAR VALLEY PODIATRY, P.C. d/b/a CEDAR VALLEY PODIATRY FOOT & ANKLE CENTER and NICHOLAS SCHMERBACH, D.P.M., Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.

A plaintiff appeals following a defense verdict in his medical negligence suit.

AFFIRMED.

James H. Cook of Dutton, Daniels, Hines, Kalkhoff, Cook & Swanson,

P.L.C., Waterloo, for appellant.

Martha L. Shaff and Amanda M. Richards of Betty, Neuman & McMahon,

P.L.C., Davenport, and Robert L. Goldstucker of Nall & Miller, L.L.P., Atlanta,

Georgia, for appellees.

Considered by Bower, C.J., and Badding and Buller, JJ. 2

BADDING, Judge.

After suffering from foot pain for thirty years, Allan Kammeyer sought

treatment at Cedar Valley Podiatry in July 2018, where he saw podiatrist

Dr. Nicholas Schmerbach. Dr. Schmerbach diagnosed Kammeyer with chronic

plantar fasciitis and used conservative care to treat his symptoms before

recommending surgery in November. Unhappy with the results of the surgery,

Kammeyer sued Dr. Schmerbach and his employer, alleging that they were

“negligent by failing to exhaust conservative care prior to surgery.” The jury

returned a verdict for the defense.

Kammeyer appeals, claiming the court erred in (1) allowing expert testimony

on the standard of care by Dr. Schmerbach absent expert certification and

disclosure under Iowa Code section 668.11 (2020) and Iowa Rule of Civil

Procedure 1.500(2); and (2) instructing the jury on alternative medical treatments

when those were not at issue.

I. Expert Testimony

At the end of direct examination by defense counsel, Dr. Schmerbach was

asked: “And in your view, did you treat this patient appropriately consistent with

the standard of care in all respects?” Kammeyer’s attorney objected, arguing that

Dr. Schmerbach was not “designated to render a standard-of-care opinion.” The

district court overruled the objection, and Dr. Schmerbach answered yes.

We review decisions to admit expert testimony for an abuse of discretion.

See Ranes v. Adams Lab’ys, Inc., 778 N.W.2d 677, 685 (Iowa 2010). Though

Kammeyer correctly recites that standard of review, he does not specify how the

court abused its discretion in allowing the challenged testimony. Instead, 3

Kammeyer makes the limited claim that Dr. Schmerbach’s testimony on the

standard of care, “in the absence of required expert disclosures by [the

defendants,] was prejudicial error.”

We first observe, as the defense points out on appeal, that our supreme

court has stated it “do[es] not read the proscription of Iowa Code section 668.11 to

extend to testimony elicited from defendant parties who are also experts.” Oswald

v. LeGrand, 453 N.W.2d 634, 640 (Iowa 1990); accord Hill v. McCartney, 590

N.W.2d 52, 57 (Iowa Ct. App. 1998) (“The proscription of Iowa Code section

668.11 does not extend to testimony elicited from defendant parties who are also

experts.”). Kammeyer cites no contrary authority. Nor does he dispute that

Dr. Schmerbach meets the standards for an expert witness. Cf. Iowa Code

§ 147.139; Iowa R. Evid. 5.702.

Furthermore, reversal is required only if Kammeyer’s substantial rights were

affected. See McGrew v. Otoadese, 969 N.W.2d 311, 325 (Iowa 2022).

Kammeyer argues he was prejudiced by “the lack of opportunity for [his] counsel

to conduct discovery of Dr. Schmerbach’s standard of care opinions and prepare

his case accordingly.” The record affirmatively establishes otherwise. See

McGrew, 969 N.W.2d at 325 (“We presume prejudice and reverse unless the

record affirmatively establishes otherwise.”).

While the defense did not identify Dr. Schmerbach as an expert witness in

their section 668.11 disclosure, they reserved the right to call “any treating health

care professionals and experts designated by any party.” Kammeyer did the same

in his expert witness designation: “Plaintiff reserves the right to call any health care

providers listed in the medical records for purposes of having them testify as to 4

opinions formulated on any issue of this case based upon that person’s personal

knowledge, education, experience, and review of the records or other pertinent

documents.” And according to a notice filed in July 2021, Kammeyer also deposed

Dr. Schmerbach before trial.1

Against this backdrop, it cannot be said that Dr. Schmerbach answering

“yes” to whether his treatment was consistent with the standard of care surprised

Kammeyer at trial. That passive testimonial opinion “was brief and paled in

significance compared to the balance of the record,” which included extensive

testimony from other experts on the standard of care. State v. Wise, 697 N.W.2d

489, 492 (Iowa Ct. App. 2005) (finding no prejudice on ineffective-assistance claim

of evidentiary error where testimony was brief and insignificant); cf. Est. of

Anderson v. Prasad, No. 22-0479, 2023 WL 3092578, at *9 (Iowa Ct. App. Apr. 26,

2023) (finding no prejudice in admission of defendant physician’s testimony that

he performed the surgery “appropriately” where defense expert “had already given

the same testimony without objection”). This lack of prejudice also defeats

Kammeyer’s claim that the testimony was received despite the lack of disclosure

under Iowa Rule of Civil Procedure 1.500(2). See McGrew, 969 N.W.2d at 325

1 The parties included Dr. Schmerbach’s deposition and the defense’s initial disclosures in the appendix and referred to both in their appellate briefs. It does not appear either was part of the record made before the district court. Because our review is confined to that record, we have not considered these materials. See Iowa Rs. App. P. 6.801 (“Only the original documents and exhibits filed in the district court case from which the appeal is taken, the transcript of proceedings, if any, and a certified copy of the related docket and court calendar entries prepared by the clerk of the district court constitute the record on appeal.”), 6.905(1)(b) (restricting contents of appendix to “parts of the district court record”); In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“We are limited to the record before us and any matters outside the record on appeal are disregarded.”). 5

(applying harmless-error analysis to expert-disclosure requirements under rule

1.500(2)). We accordingly affirm on this issue.

II. Jury Instruction

At trial, Kammeyer’s theory of the case was that Dr. Schmerbach did not

exhaust conservative, non-operational treatments before proceeding to surgery.2

Kammeyer’s expert, Dr. Steven Sharlin, testified that Dr. Schmerbach’s care “was

insufficient in the amount of nonoperative treatments that could have been

provided” before surgery. In Dr. Sharlin’s opinion, “the standard of care for treating

someone with plantar fasciitis or plantar fasciosis would require exhausting all

forms of nonoperative care for a period of six months.” Dr. Sharlin agreed

Dr. Schmerbach did use some conservative care with Kammeyer, but he testified

that Dr. Schmerbach should have done serial steroid injections, used custom

orthotics, and kept Kammeyer on the controlled-ankle-movement walker longer.

On cross-examination, however, Dr. Sharlin agreed that podiatrists can provide

varying and differing methods of treatment.

Consistent with that concession by Dr. Sharlin, defense expert

Dr. Allan Jacobs testified the standard of care when it comes to conservative care

depends on the particular patient—“you have to look at each individual patient and

see what you’re dealing with” and “for any given problem,” there are “multiple ways

you can treat it that are acceptable.” In assessing a care plan for a patient, Dr.

Jacobs testified a podiatrist has to look at the duration and severity of their

2As Kammeyer’s counsel agreed in response to the defense’s motion for directed verdict, Kammeyer did not present expert testimony on whether Dr. Schmerbach was negligent in performing the surgery. 6

symptoms, as well as the success of prior efforts to alleviate those symptoms: “If

someone has been doing things and they haven’t worked, then I’m not going to

repeat it. I mean, there’s no point and we know it doesn’t work.” Kammeyer had

thirty years of trying a number of conservative treatments before going to see

Dr. Schmerbach. Dr. Jacobs also noted that Kammeyer suffered from a very tight

calf muscle, which was a cause of his issues and put him in the category of people

for whom conservative care normally isn’t successful. Based on Kammeyer’s

overall circumstances, Dr. Jacobs opined “this guy’s not gonna do well with

conservative care. He’s gonna end up either having to live with this or have

surgery. There’s just not going to be any in between.”

As for the specifics of the care that Dr. Schmerbach provided to Kammeyer,

Dr. Jacobs testified that, like Dr. Schmerbach, he would not have given Kammeyer

serial steroid injections as recommended by Dr. Sharlin. Dr. Jacobs noted that

Kammeyer had injections before that were painful and provided only temporary

relief. He also had risk factors for adverse effects from the injections. With the

custom orthotics, Dr. Jacobs noted Kammeyer’s physical therapist tried that but,

because his foot was in such bad shape, it could not be molded. In any event,

Dr. Jacobs testified patients can achieve the same result from over-the-counter

orthotics as they can from custom orthotics. Kammeyer used the former for many

years with no relief. In the end, Dr. Jacobs testified that he would not have done

anything differently for Kammeyer:

I don’t know what else you could do. I mean, he’s doing everything that you could possibly do for this. He’s icing it, he’s stretching it, he’s got a night splint. He’s going to physical therapy, they’re stretching it . . . . He’s got orthotics, he’s got premade orthotics, he’s got shoe changes. I mean, really, he’s had injections, 7

he’s had pills, and he’s been hurting for 20 to 30 years. I don’t know exactly what else there would be to do . . . .

With this expert testimony having come in, the defense requested an

“alternate method of treatment instruction,” arguing the evidence showed “there

were two alternative treatment routes that could have been done that would have

constituted reasonable care.” Over Kammeyer’s objection, the court gave the

following instruction:

Podiatrists may disagree in good faith upon what would be the proper treatment or diagnosis of a medical condition in a given situation. It is for the podiatrist to use his professional judgment to select which recognized method of treatment to use in a given situation. If you determine that there were two or more recognized alternative courses of action which have been recognized by the medical profession as proper methods of treatment and Dr. Schmerbach, in the exercise of his best judgment, if in compliance with the applicable standard of care, elected one of these proper alternatives, then Dr. Schmerbach was not negligent.

Accord Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 823 (Iowa 1992);

see also Peters v. Vander Kooi, 494 N.W.2d 708, 713 (Iowa 1993) (setting out the

elements that must be shown by substantial evidence to give the instruction).

On appeal, Kammeyer claims the court erred in giving this instruction

because “alternative treatments were not at issue.” According to him, the only

issue was whether a singular treatment—conservative care—was adequately

performed before resorting to surgery. We find no prejudicial error in the court’s

submission of this instruction. See Eisenhauer ex rel. T.D. v. Henry Cnty. Health

Ctr., 935 N.W.2d 1, 9 (Iowa 2019).

Kammeyer likens this case to Peters, where there was a consensus among

the experts “that on all Pitocin-induced deliveries cesarean section availability is

essential.” 494 N.W.2d at 708. Because all the specifications of negligence 8

concerned the doctor’s failure to arrange for the availability of a cesarean section,

there were not two acceptable courses of treatment for the doctor to choose from,

so inclusion of the instruction was error. Id. Here, however, substantial evidence

showed there were two acceptable routes for Dr. Schmerbach to take before

proceeding to surgery. See Vachon, 490 N.W.2d at 823 (defining treatment

broadly to cover “all the steps taken to effect a cure of an injury or disease”).

The specification of negligence identified in the instructions was that

Dr. Schmerbach “was negligent by failing to meet the standard of care by failing to

exhaust conservative, non-surgical medical treatment options prior to proceeding

with surgery.” While Dr. Sharlin testified the standard of care was six months of

conservative care, Dr. Jacobs disagreed. He testified that Dr. Schmerbach could

have continued with conservative care but, given Kammeyer’s history and lack of

relief from conservative care, proceeding to surgery was acceptable. And Dr.

Schmerbach testified that he considered both routes—continuing with

conservative care or proceeding to surgery—before discussing surgery with

Kammeyer. See Peters, 494 N.W.2d at 713.

The alternative-methods-of-treatment instruction

embodies the notion that differing doctors may disagree in good faith upon what would encompass the proper treatment . . . of a medical problem in a given situation. Medicine is not a field of absolutes. There is not ordinarily only one correct route to be followed at any given time.

Est. of Smith v. Lerner, 387 N.W.2d 576, 581 (Iowa 1986) (citation omitted).

Because substantial evidence showed there was more than one acceptable

method of treatment and “the alternatives were discussed, the benefits and

drawbacks weighed, and choices made based on . . . best professional judgment,” 9

we find no error in giving this instruction to the jury. See Brooks v. State,

No. 16-0710, 2017 WL 2461504, at *5 (Iowa Ct. App. June 7, 2017).