Professional Negligence Law Reporter

Borjas v. State, 2018 WL 6706229 (Iowa Ct. App. Dec. 19, 2018).

An Iowa appellate court held that summary judgment for the defense in a medical negligence case was appropriate where the plaintiffs failed to provide sufficient expert testimony supporting their negligence or emotional distress claims. Here, Doe, a 7-year-old who suffered from nemaline rodmyopathy—a group of diseases that cause problems with muscle tone and contraction—was taken to a hospital, suffering from a persistent cough. She was admitted and treated for pneumonia. Within two months, Doe’s parents returned her to the hospital, where she underwent a laryngoscopy. After the procedure, Doe required anti-seizure medication and went into respiratory failure. Additionally, following the hospitalizations, Doe had a reduced ability to function, including walking on her own and attending school. Doe’s parents sued the state of Iowa, which owned and operated the hospital, alleging medical malpractice and negligent infliction of emotional distress. The defendant moved for summary judgment on the basis that the plaintiffs had failed to make a prima facie showing of medical negligence. Granting the motion, the trial court concluded that the plaintiffs failed to provide expert testimony regarding the applicable standard of care and any violation of those standards.

Affirming, the appellate court noted that to establish medical negligence, a plaintiff must provide evidence—typically from an expert—showing the applicable standard of care, violation of the standard, causation, and damages. Here, the court found, the plaintiff’s sole medical expert provided an opinion on Doe’s decreased functionality but did not offer an opinion on the standard of care applicable to the plaintiffs’ case or any violation of those standards. The court rejected the plaintiffs’ argument that their production of a letter and deposition from a non-licensed physician established the standard of care. The letter set forth mere recommendations for emergency room visits, the court found, concluding that as a non-licensed physician, this individual was not qualified to testify on standard of care or any violation.

The court also concluded that dismissal of the plaintiffs’ negligent infliction of emotional distress claim was proper. The record fails to show that the plaintiffs had a contemporaneous observance resulting from the defendant’s negligent conduct that led to a direct emotional impact, the court said.