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Hill v. McCartney12/28/1998
ies who are also experts. Id. The admissions in Oswald were statements made in the course of the defendant doctors' in-court testimony. Id. While Oswald makes it clear such testimony can constitute the expert testimony needed to show malpractice, it did not clarify whether extra-judicial admissions of defendant doctors can constitute the expert testimony needed to show malpractice.
The overwhelming weight of authority holds, and a natural extension of Oswald is, that extra-judicial admissions can supply the necessary expert testimony in malpractice cases. See, i.e., Jarboe v. Harting, 397 S.W.2d 775 (Ky. App. 1965)(the necessary expert testimony may consist of out-of-court admissions by the defendant doctor); Robertson v. LaCroix, 534 P.2d 17 (Okl App. 1975)(extra-judicial admission of party opponent has the same legal competency as direct expert testimony); Lashley v. Koerber, 26 Cal.2d 83, 156 P.2d 441 (1945)(extra-judicial admissions of defendant have same legal competency as direct expert testimony); 70 C.J.S. Physicians & Surgeons ยง 62 at 1008 (1951). However, in order for an extra-judicial admission to be sufficient it must be an admission of negligence or lack of skill ordinarily required for the performance of the work undertaken. See Oswald, 453 N.W.2d at 640; Lashley, 156 P.2d 441.
Because we hold extra-judicial statements can constitute the direct expert testimony needed to show malpractice, our question becomes whether McCartney's alleged statements sufficiently admit negligence or a lack of skill ordinarily required for the work at hand.
Courts have interpreted statements similar to those made by McCartney as sufficient to admit negligence and thereby avoid dismissal for lack of independent expert testimony. When making this determination, the entire record must be reviewed in the light most favorable to the plaintiff, affording her all reasonable inferences that can be deduced from the factual record. Hildenbrand v. Cox, 369 N.W.2d 411, 413 (Iowa 1985). What inferences were to be drawn from McCartney's statements in light of the facts and circumstances shown by the evidence was a question of fact to be determined by the jury. The jury could infer from the statements "I fucked you up" and "I did something freaky," as well as McCartney's reference to his medical malpractice insurance, if admissible, that he did not use the degree of care ordinarily exercised by other doctors in the community, and, as a result of the lack of care, Hill was injured. Under these circumstances, the trial court erred in granting summary judgment in regard to McCartney.
There were no admissions made by Dunbar. Based the preceding analysis, the trial court was correct in dismissing the claim against Dunbar. We affirm the trial court in regard to Dunbar.
In Conclusion, we affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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