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[T] Bernholtz v. Des Moins Orthopaedic Surgeons1/29/2003
Plaintiffs appeal the dismissal of their medical malpractice action for their failure to comply with expert discovery. AFFIRMED.
David and Rebecca Bernholtz, both individually and on behalf of their minor children (the plaintiffs), filed a medical malpractice action against Des Moines Orthopaedic Surgeons, P.C. and Dr. Linda Bratkiewicz (the defendants). The defendants sought and were granted summary judgment on the ground the plaintiffs' noncompliance with expert certification and discovery rules precluded them from presenting expert testimony on the standard of care and thus prevented them from establishing a prima facie case of medical negligence. Upon our review for correction of errors at law, Iowa R. Civ. P. 6.4, we affirm.
Standard of care and breach in this matter must be demonstrated through expert testimony. See Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). This expert testimony requirement applies to all medical malpractice claims, including those asserting a lack of informed consent. Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 166 (Iowa 1992). If the plaintiffs are precluded from presenting expert testimony as to these matters, they cannot establish a prima facie case of medical negligence and summary judgment was appropriate. Oswald, 453 N.W.2d at 635. Accordingly, we look to see whether the district court erred in excluding expert testimony.
A court may exclude expert testimony for a party's failure to provide expert discovery in accord with rule 1.508, and barring a good cause showing, it must exclude such testimony for failure to timely certify an expert witness's name, qualifications and the purpose for his or her testimony. Iowa R. Civ. P. 1.508(3); Iowa Code ยง 668.11(2) (2001). Here, the district court set the plaintiffs' deadline for certifying experts and providing expert interrogatory responses at June 1, 2000. On that date the plaintiffs did file a lengthy expert certification, but the court found the certification was not in substantial compliance with section 668.11. See Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993).
The certification named Dr. George Vito and Dr. Bruce Pichler as treating physicians and medical experts. The section for the designation of retained liability experts contained an extensive description of purpose, but failed to identify any specific witnesses. It is apparent the defendants were uncertain as to the identity of the standard of care witnesses, as they unsuccessfully sought both formal and informal clarification of the issue. A contemporaneous request to extend the time for the plaintiffs' certification was denied by the district court.
The plaintiffs argue Dr. Vito and Dr. Pichler were their certified standard of care witnesses. However, at the August 1, 2001, summary judgment hearing the plaintiffs revealed Dr. Vito had declined to testify as to the standard of care. Significantly, within the nearly two-page, primarily medical description of the purpose of Dr. Vito and Dr. Pichler's testimony, only Dr. Vito was listed as providing an opinion regarding the applicable standard of care and its breach. Even considering the remainder of the description of purpose, we cannot conclude the plaintiffs designated Dr. Pichler as a standard of care expert. See Hantsbarger, 501 N.W.2d at 504 ("Designations which require further inquiry and discovery prolong the trial . . . and are at odds with the purposes of section 668.11(1)."). Accordingly, the district court correctly concluded that the plaintiffs failed to timely certify standard of care experts.
The plaintiffs appear to argue Dr. Vito's late refusal to provide a standard of care opinion demonstrated good cause for an ext
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