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Hansen v. Central Iowa Hospital Corp.9/1/2004
relate directly to the treatment of a patient and for that reason are outside the scope of section 668.11. 486 N.W.2d at 281 n.3. Therefore,
the paramount criterion is whether this evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.
Id. at 281. This "paramount criterion" was more fully explored in the context of rule 125 in Morris-Rosdail v. Schechinger, 576 N.W.2d 609 (Iowa Ct. App. 1998).
In Morris-Rosdail, a personal injury action, the district court granted a defense motion to exclude testimony from two treating doctors regarding the plaintiff's need for future surgery and permanent impairment. 576 N.W.2d at 610. The district court granted the motion because the plaintiff had failed to disclose the doctors' opinions in response to the defendant's interrogatory. Id. at 611. The court of appeals first noted that rule 125 distinguishes between facts and opinions of experts derived prior to being retained as experts and those acquired or developed in anticipation of litigation or for trial. Id. at 611-12. The court also noted that the rule does not preclude an expert from testifying to facts and opinions derived prior to being retained as an expert and for this reason treating physicians are generally not subject to rule 125. Id. at 612. The court then recognized, citing Carson, that "the threshold question whether the facts and opinions were formulated by a physician in treating a patient or whether they were formulated by a physician for purposes of the issues in pending or anticipated litigation." Id. The court aptly noted that
lthough the disclosure requirements of rule 125 are generally limited to physicians retained for purposes of litigation and exclude treating physicians, the application of the rule does not necessarily depend on the label or role of the physician. Instead, it hinges on the reason and time frame in which the underlying facts and opinions were acquired by the physician. Thus, even treating physicians may come within the parameters of rule 125 when they begin to assume a role in the litigation analogous to that of a retained expert. This generally occurs when a treating physician begins to focus less on the medical questions associated in treating the patient and more on the legal questions which surface in the context of a lawsuit.
Id. (citation omitted).
The court of appeals reversed the district court decision excluding the physicians' testimony because the record showed both experts were treating physicians and there was no evidence that their opinion testimony was subsequently acquired or developed in anticipation of trial. Id. In short, " here was a lack of substantial evidence to support a finding the excluded opinions were within the scope of rule 125." Id.
According to Dr. Pollack's deposition testimony, he first treated Marlys in 1995 for lower extremity pain after back surgery by another physician. Eventually, he ordered a surgical procedure in which a vascular surgeon removed the sympathetic nerve chain in the low back. This procedure was partially successful in relieving her pain. Thereafter in November 1998, he performed a procedure to destroy nerve fibers carrying pain messages from the joints in the low back. Later, he implanted a device in her back to interfere with the pain messages.
Dr. Pollack recalled that Marlys told him about her June 1999 fall at IMMC and that she thereafter had significant increases in pain and discomfort which limited her abilit
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