Lori Kellar and Dale Kellar v. Broadlawns Medical Center Foundation

• Court: Court of Appeals of Iowa
• Decided: May 11, 2022
• Docket: 21-0960
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0960 Filed May 11, 2022

LORI KELLAR and DALE KELLAR, Plaintiffs-Appellants,

vs.

BROADLAWNS MEDICAL CENTER FOUNDATION, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.

The plaintiffs appeal the district court’s ruling granting summary judgment

in favor of the defendant on their medical malpractice action. AFFIRMED.

Marc S. Harding of Harding Law Office, Des Moines, for appellants.

Jeffrey R. Kappelman and Connie L. Diekema of The Finley Law Firm, P.C.,

Des Moines, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2

VAITHESWARAN, Presiding Judge.

Lori and Dale Kellar sued Broadlawns Medical Center Foundation for claims

arising from Lori’s surgery and treatment. Employees initially extracted a single

lymph node that tested positive for cancer. They later extracted and disposed of

her remaining lymph nodes. The Kellars alleged “all the lymph nodes were thrown

[a]way instead of being tested and preserved.” They further alleged Broadlawns’

“loss” of Lori’s remaining lymph nodes “made it virtually impossible to be certain

whether Lori still had cancer or not.” They claimed Broadlawns was vicariously

liable for the negligent acts of its employees and was liable for “negligent retention

and supervision” of its employees or agents and for Dale’s loss of consortium.

Broadlawns moved for summary judgment on the ground that the Kellars

“failed to submit expert testimony sufficient to support their claim” within the time

frame set forth in Iowa Code section 668.11 (2020). The district court granted the

motion. The court reasoned:

As Plaintiffs have failed to provide expert testimony as to the causation between Defendant’s alleged failure to retain and test Plaintiff Lori Kellar’s other lymph nodes and the damages Plaintiffs suffered due to Plaintiff Lori Kellar’s course of treatment, i.e., chemotherapy, there is no genuine issue of material fact that Plaintiffs have failed to establish a prima facie case of medical negligence.

The Kellars appealed.

“A prima facie case of medical negligence requires plaintiff to establish the

applicable standard of care, a violation of that standard, and a causal relationship

between the violation and the injury.” Susie v. Fam. Health Care of Siouxland,

P.L.C., 942 N.W.2d 333, 337 (Iowa 2020). “Expert testimony is required to create

a jury question on causation when the causal connection ‘is not within the 3

knowledge and experience of an ordinary layperson.’” Id. (citation omitted).

Experts must be designated within specified time frames set forth in Iowa Code

section 668.11(1). See McGrew v. Otoadese, 969 N.W.2d 311, 319 (Iowa 2022)

(setting forth statutory expert disclosure requirements, including the section 668.11

expert designation requirement). For a plaintiff, designation of “the expert’s name,

qualifications and the purpose for calling the expert” must be made “within one

hundred eighty days of the defendant’s answer unless the court for good cause

not ex parte extends the time of disclosure.” Iowa Code § 668.11(1)(a).

The Kellars designated a registered nurse within the 180-day time frame.

He opined that Broadlawns personnel breached the applicable standard of care

when they “thr[e]w away” the “biopsied tissue.” As the district court noted, the

nurse “did not give an opinion on causation.” Nor was he competent to do so. In

the district court’s words, the nurse’s “lack of education and training regarding

cancer treatment and diagnosis relating to the retention, preservation, and testing

of lymph nodes” rendered him unqualified “to testify as to the causation element of

medical negligence in this case.”

The Kellars do not challenge this aspect of the court’s ruling. They argue a

causation expert was entirely unnecessary. In their view, the case exemplified “a

failure of professionalism” within the understanding of laypeople.

The Kellars alleged more than impropriety in the disposal of “tissue samples

that” Broadlawns employees “were supposed [to] and had agreed, to retain.” They

alleged that Lori “endure[d] a number of unnecessary procedures as a result of the

inadequate testing procedures,” including “[t]wenty-five sessions of radiation

treatments and chemotherapy.” That allegation required expert testimony. See 4

Susie, 942 N.W.2d at 338 (“The [medical] opinions . . . provide no guidance for the

jury on how or if [the plaintiff’s] outcome would have been different if antibiotics

were administered one day earlier.”). As the district court stated, “[T]he intricacies

of lymph node preservation in relation to cancer diagnosis and treatment are not

within the knowledge and experience of an ordinary layperson.” (internal quotation

marks omitted). We discern no error in the court’s conclusion. See id. at 336

(setting forth standard of review).

The Kellars also contend a treating physician “provided the expertise that

sufficiently challenges whether any doctor could know with a reasonable degree

of medical certainty that Lori had the cancer that required the grueling treatment.”

The Kellars did not make this argument in the district court. Accordingly, they failed

to preserve error. See Ward v. Unity Healthcare, No. 20-1516, 2021 WL 5918408,

at *4 (Iowa Ct. App. Dec. 15, 2021).1

Finally, the Kellars contend they did not need an expert to opine on the

harm to them. In their view, “Broadlawns’ staff crassly and insensitively threw

away the only tissue available to evaluate whether or not Lori needed extensive

cancer treatment,” and “[c]learly, ‘a lay fact finder could easily evaluate the

[conduct] in light of the surrounding circumstances to determine whether . . . [this]

breached the standard of care expected of medical professionals, and determine

the harm.” (quoting Oswald v. LeGrand, 453 N.W.2d 634, 640 (Iowa 1990)). The

district court concluded, “The retention of lymph nodes and how it relates to

1 In any event, the treating physician did not provide a causation opinion. See McGrew, 969 N.W.2d at 320 (stating opinions of treating physicians formed outside treatment must “be disclosed pursuant to section 668.11”). 5

emotional distress requires expert testimony.” Again, we discern no error in the

district court’s conclusion.

The summary judgment ruling in favor of Broadlawns is affirmed.

AFFIRMED.