Oswaldv.LeGrand1990.docx

Plaintiffs Susan and Larry Oswald have been married for ten years and are the parents of two healthy sons. During Susan’s third pregnancy, she began experiencing bleeding and painful cramping just prior to her five-month checkup. At that time, she was under the care of a family practice physician, defendant Barry Smith. He ed an ultrasound test and Susan was then examined in his office by one of his colleagues, defendant Larry LeGrand, an obstetrician. Neither the test nor the examination revealed an explanation for the bleeding and Susan was instructed to go home and stay off her feet. Later that day, however, Susan began to bleed heavily. She was taken by ambulance to defendant Mercy Health Center. The bleeding eventually stopped, Dr. Smith’s further examination failed to yield a cause of the problem, and Susan was discharged the following day with directions to take it easy.
The following day, Susan’s cramping and bleeding worsened. Susan thought she was in labor and feared a miscarriage. She was unable to reach Dr. Smith by telephone and so Larry drove her to the emergency room at Mercy. There Dr. Christopher Clark, another physician in association with Smith and LeGrand, examined her. He advised her there was nothing to be done and she should go home. Larry was angered by this response and insisted Susan be admitted to the hospital. Dr. Clark honored this request and Susan was transferred to the labor and delivery ward.
In considerable pain and anxious about her pregnancy, Susan’s first contact on the ward was with a nurse who said, “What are you doing here? The doctor told you to stay home and rest.” Susan felt like “a real pest.” A short while later, while attached to a fetal monitor, Susan was told by another nurse that if she miscarried it would not be a baby, it would be a “big blob of blood.” Susan was scared.
The next morning, an argument apparently ensued over which physician was responsible for Susan’s care. Standing outside Susan’s room, Dr. Clark yelled, “I don’t want to take that patient. She’s not my patient and I am sick and tired of Dr. Smith dumping his case load on me.” At the urging of Larry and a nurse, Dr. Clark apologized to Susan for this outburst. He assured her that he would care for her until he left for vacation at noon that day when he was scheduled to go “off call” and Dr. LeGrand would take over.
Around 9:00 a.m. Susan began experiencing a great deal of pain that she believed to be labor contractions. Dr. Clark prescribed Tylenol and scheduled her for an ultrasound and amniocentesis at 11:00 a.m. By that time, Susan was screaming in pain and yelling that she was in labor. Dr. Clark arrived in the x-ray department halfway through the ultrasound procedure and determined from viewing the sonogram that there was insufficient fluid in the amniotic sac to perform an amniocentesis. He told the Oswalds that the situation was unusual but did not reveal to them his suspicion *637 that there was an infection in the uterus. He examined Susan abdominally but did not do a pelvic exam. By all accounts, Susan was hysterical and insisting she was about to deliver. Dr. Clark wanted her transferred upstairs for further monitoring. He told Larry to calm her down. Then he left on vacation, approximately one-half hour before the end of his scheduled duty.
Within minutes, Susan began delivering her baby in the hallway outside the x-ray lab. When Larry lifted the sheet covering Susan and “saw [his] daughter hanging from her belly” he kicked open a glass door to get the attention of hospital personnel. Susan was quickly wheeled to the delivery room where two nurses delivered her one-pound baby girl at 11:34 a.m.
After visually observing neither a heartbeat nor any respiratory activity, one of the nurses announced that the baby was stillborn. The nurse wrapped the infant in a towel and placed her on an instrument tray. Ten minutes later, Dr. LeGrand arrived and delivered the placenta. At Susan’s request, he checked the fetus for gender. He made no further examination of the infant, assuming it to be a nonviable fetus. After assuring himself that Susan was fine, and offering his condolences to the disappointed parents, he returned to his office.
Meanwhile, Larry called relatives to advise them of the stillbirth. Upon his return to Susan’s room, he touched the infant’s finger. Much to his surprise, his grasp was returned. Larry told a nurse in attendance that the baby was alive but the nurse retorted that it was only a “reflex motion.” The nurses subsequently determined that the baby was alive. After having left her on an instrument tray for nearly half an hour, the nurses rushed the infant to the neonatal intensive care unit. The infant, registered on her birth certificate as Natalie Sue, received comfort support measures until she died about twelve hours later. Further facts will be detailed as they become pertinent to the issues on appeal.
III. In January 1987, the Oswalds sued the hospital and doctors Clark, Smith and LeGrand on theories of negligence, negligent loss of chance of survival, breach of implied contract and breach of implied warranty. As to Dr. LeGrand and the hospital, Oswalds additionally alleged gross negligence. Factually, these causes of action were premised on violation of the standard of prenatal care owed to Susan Oswald and alleged negligence in the examination and treatment of Natalie Sue including failure to recognize signs of an imminent premature birth, failure to properly prepare for such delivery, and delaying timely and vital treatment to the infant upon her birth. The Oswalds claimed damages for Natalie Sue’s lost chance to live, their loss of society and companionship flowing from Natalie Sue’s death, severe emotional distress and anxiety resulting from the defendants’ negligence in the care of both Susan and Natalie Sue, and severe emotional distress and mental anguish caused by witnessing the negligent treatment of their newborn infant.
The parties engaged in substantial discovery and plaintiffs successfully resisted two motions for summary judgment. In September 1987, however, the defendants successfully moved to bar the plaintiffs from offering independent expert testimony on their malpractice claim due to plaintiffs’ failure to designate an expert witness within the 180-day limit prescribed by Iowa Code section 668.11.[1] Defendants subsequently renewed their motions for summary judgment, each claiming that plaintiffs’ *638 inability to produce expert testimony at trial would preclude them from establishing the requisite standard of care and its alleged breach. Following hearing on the motion, the district court agreed.
Both before the district court, and now on appeal, the Oswalds contend that their case comes within the “common knowledge” exception to the rule requiring expert testimony in medical malpractice actions. In the alternative, plaintiffs insist that they can establish the relevant standard of care through the defendants’ admissions against interest, thus obviating the need for independent expert testimony. They also assert that Iowa Code section 668.11 is contrary to public policy.
IV. The case boils down to whether the trial court correctly determined, as a matter of law, that the claims of negligence surrounding the Oswald family’s care and treatment are so technical in nature as to require expert testimony to establish the applicable standard of care and its breach. In considering this question, we think it is useful to divide the case into three logical components: (1) the professional care and treatment accorded Susan prior to and during her delivery; (2) the professional care and treatment given Natalie Sue upon her birth; and (3) the emotional impact of (1) and (2) on Susan and Larry as expectant parents. Within these categories, we think the trial court correctly determined that certain conduct of the physicians and hospital could only be properly challenged through independent expert testimony, but that the principal conduct about which plaintiffs complain falls within the knowledge and experience of the average lay jury.
A. Evidence not within common knowledge. To begin, there is no evidence in this record that more prompt or heroic efforts to sustain Natalie Sue’s life would have been successful. Such evidence, if it could be obtained, would be of a technical nature requiring expert testimony that plaintiffs cannot provide. Plaintiffs are unable, under this record, to rebut the affidavit of the attending pediatrician, Dr. Charles Winterwood, that stated “Baby Girl Oswald” was an “extremely immature fetus … not sufficiently developed to survive.” Neither can they rebut his opinion that a gestational age of twenty-four weeks is medically accepted as the earliest point at which infants have been shown to have any chance of survival. Given this evidence, the trial court properly dismissed Susan and Larry’s claim of emotional distress flowing from Natalie’s lost chance of survival and all of count II of the petition relating to pecuniary loss sustained by Natalie’s estate as a result of her wrongful death.
Similarly, the record contains no evidence that the doctors’ or hospital’s treatment of Susan in any way prompted Susan’s premature delivery or could have, in any way, prevented it. Such evidence, if it existed, would exceed the ordinary scope of a layperson’s knowledge and would require expert testimony. Plaintiffs have come forth with no such proof in response to defendants’ motion. The trial court correctly dismissed all of plaintiffs’ claims against the defendants on this ground. Because this was the only complaint against Dr. Smith, he has been properly dismissed from the suit.
B. Evidence within the “common knowledge” exception. Beyond these fundamental treatment issues, however, lie plaintiffs’ claims that the care provided by defendants Clark, LeGrand, and Mercy Hospital fell below the standard of medical professionalism understood by laypersons and expected by them. Into this category fall Nurse Slater’s unwelcoming remarks upon Susan’s arrival at the birthing area; Nurse Gardner’s deprecating description of a fetus as a “big blob of blood”; Dr. Clark’s tirade outside Susan’s door; Dr. Clark’s insensitivity to Susan’s insistence that she was in the final stage of labor, leaving her in a hysterical state minutes before her delivery in a hospital corridor while he went off call; Nurse Flynn’s determination that the fetus was stillborn, only to discover it gasping for breath half-an-hour later; and Dr. LeGrand’s admitted failure to make an independent determination of the viability of the fetus, conceding *639 it was his obligation to do so. Larry and Susan contend that they have suffered severe emotional distress as a result of these alleged breaches of professional conduct.