Summary
permitting claim when emergency medical technicians caused plaintiff's husband to fall from mobile cot
Summary of this case from Squeo v. Norwalk Hosp. Ass'nOpinion
No. 0-631 / 00-0040
Filed December 13, 2000.
Appeal from the Iowa District Court for Wapello County, James Q. Bloomgren, Judge.
Lillian Pollock appeals the district court's order granting summary judgment in favor of the defendant ambulance care group and workers in her bystander liability claim. She contends the district court erred in concluding as a matter of law she did not believe that her husband would be seriously injured or killed when his cot fell to the ground while the defendants were transporting him.
REVERSED AND REMANDED.Lawrence J. Lammers of McCarthy, Lammers Hines, Davenport, for appellant.
Greg A. Egbers and Peter J. Thill of Betty, Neuman McMahon, L.L.P., Davenport, for appellees.
Heard by SACKETT, C.J., and ZIMMER and MILLER, JJ.
This appeal raises the issue of the extent of evidence necessary in a bystander's claim to support a finding that the bystander believes the direct victim of the accident would be seriously injured or killed. The district court found the evidence insufficient and dismissed on summary judgment. We reverse and remand.
The events leading to this action began after plaintiff-appellant Lillian Pollock called 911 seeking an ambulance for her sick husband. An ambulance operated by defendant-appellee Ottumwa Regional Mobile Intensive Care Services of Ottumwa Regional Health Center responded to the call. While defendant-appellees Huff and Willey removed plaintiff's husband Mr. Pollock, now deceased, from the home, the gurney or ambulance cot carrying him was either dropped or he fell or rolled off of it and landed on the ground.
After plaintiff filed suit, defendant filed a motion for summary judgment contending among other things that Mr. Pollock was dead when he was taken from the home and subsequently landed on the ground. The defendant further contended the plaintiff was unable to provide substantial evidence to support a finding she believed Mr. Pollock would be seriously injured or killed when she witnessed his fall. The defendant also contended plaintiff could not prove negligence because she failed to designate an expert witness in the time required in Iowa Code sections 147.139 and 668.11.
The district court found there was a factual dispute as to whether Mr. Pollock was dead at the time of the accident. The court also decided there was not substantial evidence to support a finding that plaintiff believed Mr. Pollock would have been seriously injured or killed when she witnessed the accident. On this basis the district court sustained defendant's motion and dismissed plaintiff's claim. Having so decided, the district court found it unnecessary to address defendant's claim plaintiff failed to designate expert witnesses.
Plaintiff on appeal contends the district court should not have concluded in ruling on the motion for summary judgment that a reasonable person in plaintiff's position witnessing the accident would not have believed that Mr. Pollock would be seriously injured or killed. Defendant contends the district court was correct in granting summary judgment and that in addition to the ground relied on by the district court, the motion was sustainable because Mr. Pollock was dead before he was placed on the gurney or cot and plaintiff failed to show expert testimony supporting her claim the defendant was negligent.
We review a summary judgment ruling for correction of errors of law. Shriver v. City of Okoboji, 567 N.W.2d 397, 400 (Iowa 1997). Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We will review the record before the district court to determine whether an issue of material fact exists, and if not, whether the district court properly applied the law. Id. The record includes the pleadings, motion for summary judgment, resistance, affidavits, and exhibits. Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993). The facts are reviewed in the light most favorable to the nonmoving party. Shriver, 567 N.W.2d at 400. A factual dispute precludes summary judgment only when the dispute is over facts that would affect the outcome of the suit. Id.
In Barnhill v. Davis, 300 N.W.2d 104,108 (Iowa 1981) the court adopted bystander liability and determined that the following elements of a bystander's claim for emotional distress caused by witnessing peril to a victim proximately caused by the negligence of another are that:
1. The bystander was located near the scene of the accident.
2. The emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3. The bystander and the victim were husband and wife or related within the second degree of consanguinity or affinity.
4. A reasonable person in the position of the bystander would believe, and the bystander did believe, that the direct victim of the accident would be seriously injured or killed.
5. The emotional distress to the bystander must be serious.
Barnhill v. Davis, 300 N.W.2d 104,108 (Iowa 1981).
The defendant contended Mr. Pollock was dead before the occurrence and, as the district court found, plaintiff did not establish a prima facie case on element number four.
Before addressing this question we need to look at the dispute as to whether the district court correctly found there were facts that would support a finding Mr. Pollock was alive when he was transported. Plaintiff and her neighbor filed affidavits which if believed would support a finding Mr. Pollock was living when taken from the house. The neighbor said plaintiff and her husband were talking when the ambulance arrived. She said after Mr. Pollock was placed on the stretcher she saw his legs and arms move and heard him moan as he was taken from the house. She also remembered hearing him moan and groan as he hit the ground following the fall and said when she reached down to place his Depends over him she observed his heart beating. Plaintiff contended she had been talking to her husband prior to the ambulance's arrival although he vomited about that time and she was cleaning the vomit off of him and he was yet breathing. She said they put him on a cot without strapping him in and he fell off the cot to the ground. She said when she ran to help him where he lay in the grass she felt his forehead which was warm to touch. She further said she accompanied him in the ambulance and there was motion in his arms and legs during the ride.
While defendant presented facts showing Mr. Pollock was dead before he was transported we agree with the district court that there was a factual dispute on this issue. We therefore reject the defendant's argument to the contrary.
Plaintiff next contends the district court erred in holding there was no genuine issue of material fact to show that a reasonable person in plaintiff's position would believe that Mr. Pollock would be seriously injured or killed as a result of the negligence of the ambulance crew.
Defendant argues that plaintiff's affidavits filed in resistance to the motion for summary judgment do not provide specific facts about the nature of the fall so as to show it would have caused a reasonable person in plaintiff's position to believe Mr. Pollock would be seriously injured or killed in the fall.
Plaintiff contends the district court incorrectly found Mr. Pollock suffered no injury in the fall. Plaintiff argues that while there is a factual issue as to whether Mr. Pollock had died prior to being removed from the house given his condition, if he were alive, the fact he fell off the ambulance cot while in medical distress could certainly lead a reasonable person to believe it would lead to serious injury or death. The facts in the record are sufficient to support this inference.
Plaintiff's petition alleges that she believed Mr. Pollock would be seriously injured or killed as a result of the incident. Plaintiff's belief together with the evidence Mr. Pollock, in a condition of extremely poor health, fell off the cot while being transported is sufficient evidence to support a finding Mrs. Pollock in her position believed her husband would be killed or seriously injured. The district court erred in dismissing plaintiff's claim finding as a matter of law to the contrary.
Defendant further contends summary judgment should be sustained because plaintiff was not able to prove the ambulance company was negligent for plaintiff failed to designate an expert witness during the time required by Iowa Code section 668.11 . We assume without deciding that defendants Huff and Willey are licensed professionals under Iowa Code section 668.11.
Iowa Code § 668.11 (1997) provides in relevant part:
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless the leave for the expert's testimony is given by the court for good cause shown.
Plaintiff contends expert witness testimony was not necessary to show that dropping Mr. Pollock was an obvious violation of accepted medical standards. In most cases a layman can have no knowledge whether the proper medicine was administered or the proper surgical treatment was given. Evans v. Roberts, 172 Iowa 653, 660-61, 154 N.W. 923, 925 (1915). However, it is a matter of common knowledge and observation that some things do not ordinarily attend the service of one possessing ordinary skill and experience in a medical or other professional field. One does not need scientific knowledge or special training to understand that, ordinarily speaking, certain results are unnecessary and are not to be anticipated, if reasonable care is exercised by the operator. See id. at 658-59, 154 N.W. at 924.
There are medical and professional malpractice cases where the fact there was a negligent occurrence or event is so obvious as to be within the comprehension of laypersons and requires only common knowledge and experience. See Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973) (patient came out of vascular operation with a part of his body burned that was not within the area of the operation). There is no rule that the nature of an injury must be shown by expert testimony if the injury is such that it may satisfactorily be shown by other evidence. See Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425 (1940).
It can be said that as a matter of common knowledge and observation one would know that absent negligence an ambulance attendant or EMT ordinarily would not drop a patient being transported off an ambulance cot. This is so obvious that one does not need scientific knowledge or special training to recognize the event was negligent.
Having so decided we reject defendant's claim that expert testimony was necessary to prove negligence. We reverse the summary judgment and remand to the district court.
REVERSED AND REMANDED.