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Peppmeier v. Murphy3/31/2005
ical malpractice by a defendant physician can constitute the direct expert testimony needed to show malpractice. Hill v. McCartney, 590 N.W.2d 52, 56 (Iowa Ct. App. 1998). This includes extra-judicial admissions. Id. at 57. 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. Id.
The district court concluded Cherney's extra-judicial statements to Peppmeier are insufficient to substitute for expert testimony because they do not establish the applicable standard of care.
In Hill v. McCartney, the defendant doctor stated to his patient, "Oh, don't worry about it. I will take care of you. I have malpractice insurance. . . . I did something freaky to you. I fucked you up." Hill, 590 N.W.2d at 54. This court found that when viewing the entire record in the light most favorable to the plaintiff, such evidence was sufficient to admit negligence and thereby avoid dismissal on summary judgment for lack of independent expert testimony. Id. at 57.
What inferences were to be drawn from [the defendant'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 [the defendant'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, [the plaintiff] was injured. Under these circumstances, the trial court erred in granting summary judgment in regard to [the defendant].
Id. When viewed in the light most favorable to Peppmeier, we conclude Cherney's statements that Murphy should have known prior to the first surgery that the mastopexy was not appropriate for her breasts are sufficient to allow a jury to infer Murphy breached the standard of care.
We next consider whether Cherney's statements are admissible. Peppmeier argues they can be imputed to Murphy as admissions by a party opponent. Iowa Rule of Evidence 5.801(d)(2) states an out of court statement is not hearsay if the statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Peppmeier alleges Cherney's statements are admissible because he is the owner of Heartland, and therefore his statements are attributable to the clinic under subpart (A). She also contends Cherney's statements are admissible under subparts (C) (authorized statement) and (D) (agent).
We conclude there is no evidence to support Cherney's statements to Peppmeier were authorized by Murphy. Therefore, their admission is not allowed under rule 5.801(d)(2)(C). Furthermore, at the time Cherney made the statements, Murphy was no longer employed at Heartland. Accordingly, Cherney was not acting as an agent for Murphy under rule 5.801(d)(2)(D), which requires the statement be "made during the existence of the relationship." Finally, Cherney's statement is not admissible as being made in a representative capacity. Accordingly, the district court properly granted summary judgment
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