The Supreme Court of Iowa (“Iowa Supreme Court”), in its opinion filed on March 12, 2020, applied the contradictory affidavit rule in denying the medical malpractice claim of an Iowa woman who had to have an arm and eight toes amputated due to necrotizing fasciitis that she claimed the defendant health care providers failed to timely diagnose and treat with antibiotics.
The Underlying Facts
The plaintiff injured her right arm as a result of a fall in her living room at home. Because her condition did not improve over the course of a week, she went to the defendant urgent care clinic and was treated by a physician’s assistant (“PA”) who ordered an x-ray of her arm. The x-ray did not indicate any fractures or dislocations but did disclose “moderate soft tissue swelling about the elbow joint dorsally.” The PA diagnosed the plaintiff with right proximal forearm pain, elbow pain, and a right elbow contusion. The plaintiff was given an injection for pain and prescription pain killers along with instructions to ice her arm and follow up with her doctor if she was not better in two days.
The next day, the plaintiff’s adult son found her extremely ill and she was transported to a hospital where she was diagnosed with septic shock and kidney failure. She was immediately placed on antibiotics, but her condition continued to deteriorate. A biopsy of her right arm showed she had necrotizing fasciitis (flesh-eating disease). To stop the progression of the life-threatening condition, her doctors amputated her right arm. As a result of medication that directed blood flow to her vital organs, eight of her toes had to be amputated as well.
The plaintiff and her husband filed their Iowa medical malpractice lawsuit against the urgent care clinic and its PA, alleging that they were negligent in failing to properly and timely diagnose and treat her that resulted in amputation of her right arm. Later, the plaintiffs also alleged that the defendants’ actions resulted in the lost chance to save the plaintiff’s arm and toes from amputation.
Following the plaintiffs’ expert’s deposition, the defendants filed a motion for summary judgment, arguing that the plaintiffs lacked any evidence on causation and that their expert could only provide speculation as to the effect of antibiotic administration. The district court granted the defendants’ motion for summary judgment; the plaintiffs appealed; the court of appeals reversed the judgment of the district court, concluding the grant of summary judgment was improper; then, the defendants applied for further review by the Iowa Supreme Court.
Iowa Supreme Court Opinion
The Iowa Supreme Court held that the plaintiffs’ expert’s testimony did not rise above the level of speculation, and it was unclear whether he was qualified to render a causation opinion (he testified he is not an expert in the treatment of necrotizing fasciitis and he is not a surgeon nor an infectious disease specialist). Regardless, he was unable to provide the causal link between the defendants’ alleged violation of the standard of care and the plaintiff’s injuries.
The plaintiffs argued that their expert’s signed report summarizing his opinions pursuant to Iowa Rule of Civil Procedure 1.508 (i.e., had the plaintiff’s infection been treated immediately on the day of her visit to the clinic, “the amputation of [her] arm and toes would more likely than not been avoided”) established a genuine dispute of material fact that would preclude granting summary judgment to the defendants. The Iowa Supreme Court, however, noted that the expert’s deposition contradicted his 1.508 report by testifying that the causal connection was speculative.
Contradictory Affidavit Rule
Under the contradictory affidavit rule, the Iowa Supreme Court stated, “we will reject an affidavit that directly contradicts prior testimony unless the affiant provides a reasonable explanation for the apparent contradiction … To invoke the contradictory affidavit rule, “the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous.””
The Iowa Supreme Court stated, “Assuming [the plaintiffs’ expert’s] signed 1.508 report is part of the summary judgment record, the sequence is reversed—the deposition testimony came after the 1.508 report. But the timing of the report is inconsequential … The essence of this rule is that there is no genuine issue of fact because the deposition testimony precludes consideration of contradictory affidavits … Accordingly, [the plaintiffs’ expert’s] expert report, which he contradicted at his deposition, is insufficient to generate a genuine issue of fact.”
The Iowa Supreme Court further held, “The earlier-is-better testimony is insufficient to create a genuine issue of material fact … Not one witness opined that the immediate administration of antibiotics on September 29, 2012, would have more likely than not avoided the injury to [the plaintiff] … No expert witness has provided testimony that [the plaintiff] lost any chance to save her arm or toes. Further, no witness has testified that it was even possible for [the plaintiff’s] arm to be saved by the administration of antibiotics on September 29, 2012.”
Source Susie v. Family Health Care Of Siouxland, P.L.C., No. 17–0908.
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