The Court of Appeals of Iowa (“Iowa Appellate Court”), in its opinion filed on March 3, 2021, held: “Because the rules of civil procedure require the disclosure of expert opinions, we conclude the district court did not abuse its discretion by ruling a physician could only testify concerning his treatment of McGrew and not to matters arising before he began treating him. Also, the district court did not abuse its discretion by ruling another physician could not testify in the case, as he did not provide any direct treatment to McGrew. The McGrews did not provide adequate disclosure of the nature of the doctors’ expert opinions.”
The Underlying Facts
On July 29, 2016, the McGrews filed a petition against Dr. Otoadese, alleging medical malpractice. The McGrews claimed Dr. Otoadese recommended and performed an unnecessary medical procedure, which placed McGrew at risk for having a stroke. They claimed Dr. Otoadese did not properly interpret the CT angiogram. The McGrews’ designation of experts, filed on February 6, 2018, included Dr. Bekavac and Dr. Halloran. The designation stated both doctors would be testifying on the applicable standard of care. Dr. Otoadese filed a motion in limine, seeking to exclude the expert opinion testimony of Dr. Bekavac and Dr. Halloran.
The district court ruled Dr. Bekavac could testify only about matters relating to his treatment of McGrew. Dr. Bekavac could not give his opinion as to whether the first or second surgery was supported by McGrew’s medical condition. The court ruled Dr. Halloran, who had not directly treated McGrew, could not testify. The Iowa medical malpractice jury returned a defense verdict, and the plaintiff appealed.
Iowa Appellate Court Opinion
Under Iowa Rule of Civil Procedure 1.500(2)(a), a party must disclose the identity of expert witnesses. The disclosure requirements of rule 1.508 are generally limited to physicians retained as experts for purposes of litigation or for trial. However, even treating physicians may come within the parameters of rule 1.508 when they begin to assume a role in the litigation analogous to that of a retained expert. This will occur if the treating physician focuses more on the legal issues in pending litigation and less on the medical facts and opinions associated in treating a patient.
The Iowa Appellate Court stated that the opinions of Dr. Bekavac and Dr. Halloran concerning whether Dr. Otoadese should have performed the right carotid endarterectomy to remove plaque did not arise from treating McGrew. At the time Dr. Bekavac and Dr. Halloran arrived at their opinions, the surgery had already been performed. Their opinions as to whether the degree of stenosis of the right internal carotid artery warranted surgery did not affect the treatment of McGrew. The physicians did not arrive at their opinions as a necessary part of the treatment of McGrew, and the Iowa Appellate Court concluded they were not treating.
The Iowa Appellate Court explained “A doctor has taken a role analogous to that of a retained expert witness if the “physician focuses more on the legal issues in pending litigation and less on the medical facts and opinions associated in treating a patient” … We conclude the district court properly determined Dr. Bekavac and Dr. Halloran could not testify as treating physicians … These opinions were relevant to pending litigation and not to the treatment of McGrew, as the opinions arose after the treatment had occurred. We find Dr. Bekavac and Dr. Halloran had taken “a role in the litigation analogous to that of a retained expert.” See id. For this reason, the rules pertaining to discovery of an expert’s opinion applied to them.”
The Iowa Appellate Court held: “We conclude the district court did not abuse its discretion by ruling Dr. Bekavac could only testify concerning his treatment of McGrew, not to matters arising before he began treating him. Also, the court did not abuse its discretion by ruling Dr. Halloran could not testify in the case, as he did not provide any direct treatment to McGrew. The McGrews did not provide adequate disclosure of the nature of the doctors’ opinions. We affirm the court’s rulings on these issues.”
Source McGrew v. Otoadese, No. 19-2137.
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