IN THE COURT OF APPEALS OF IOWA

 

No. 2-500 / 01-1882

Filed May 29, 2003

 

MARY M. BROWN,

                        Plaintiff-Appellant,

 

vs.

 

GREATER COMMUNITY HOSPITAL,

JACQUE LAIRD and UNKNOWN

NURSE,

                        Defendants-Appellees.

 

 

            Appeal from the Iowa District Court for UnionCounty,Gary G. Kimes, Judge. 

 

            Mary Brown appeals from district court rulings which directed a verdict in favor of the defendants on her claim of intentional interference with a physician/patient relationship, and which denied her motion for new trial following a jury verdict in favor of defendant hospital in her negligence claim.  AFFIRMED.

 

            Todd A. Miler of Miler Law Firm, West Des Moines, for appellant.

            Jack D. Hilmes and Brian L. Stowe of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees.

 

            Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.

MILLER, J.

            Mary Brown appeals from district court rulings which directed a verdict in favor of the defendants Greater Community Hospital (GCH) and Jacque Laird, on Brown’s claim of intentional interference with a physician/patient relationship, and which denied her motion for new trial following a jury verdict in favor of GCH on her negligence claim.  Brown contends (1) the intentional interference claim should be a recognized tort in Iowa and she presented sufficient evidence to submit the claim to the jury in this case, and (2) the jury’s verdict, which found GCH negligent but did not find the negligence was a proximate cause of any damages, was inconsistent and warranted a new trial.  We affirm.

I.          BACKGROUND FACTS.

            Mary Brown’s right leg was allegedly injured on July 6, 1999 while having her left leg x-rayed at GCH.  Brown had her left knee replaced in March 1999, and had suffered an infection in that leg.  She developed a staph infection in her right leg following the injury on July 6.  Brown was seventy-five years old at the time of her right-leg injury.

In anticipation of litigation, Brown’s attorney sought information about infections in her legs from one of her treating physicians, Dr. Cheerala, an employee of GCH.  GCH’s risk manager, Jacque Laird, when informed of the request, instructed counsel to submit the request to her.  She then instructed Dr. Cheerala not to respond to the letter.

            Brown filed suit against GCH and Laird asserting two counts, one based on negligence relating to the injury Brown sustained to her right leg during the x-ray procedure, and the other based on GCH and Laird’s intentional interference with a physician/patient relationship.  Following a jury trial, the district court directed a verdict on the interference claim.  The jury returned a verdict in favor of GCH on the negligence claim, finding that while the hospital was negligent, the negligence was not the proximate cause of any damages.  Brown appeals.

II.         SCOPE OF REVIEW.

            Our review of the trial court’s decision to direct a verdict is for the correction of errors of law.  Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999).  A motion for directed verdict should be denied if there is substantial evidence to support the plaintiff’s claim.  Id.  “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.”  Id. (citing Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990)).  On appeal, we must decide whether the trial court correctly determined that there was insufficient evidence to submit the claim of intentional interference with one physician/patient relationship to the jury.

            How we review the denial of a motion for new trial depends on the grounds asserted in the motion and ruled on by the trial court.  Weyerheuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000).  When the motion and ruling are based on discretionary grounds our review is for an abuse of discretion.  Id.  When the motion and ruling are based on a claim the trial court erred on issues of law our review is for correction of errors of law.  Id.  Both parties assert that the scope of our review is for an abuse of discretion.  The motion for new trial, and thus the trial court ruling, were based in part on discretionary grounds.  Accordingly, we will review for an abuse of discretion, as urged by the parties. 

III.        INTERFERENCE WITH PHYSICIAN/PATIENT RELATIONSHIP.

            Brown contends the directed verdict was in error.  She argues that we should recognize the tort of intentional interference with a physician/patient relationship.  She maintains substantial evidence existed on the elements of the tort justifying submission of the matter to the jury.

            Both parties acknowledge that Iowa has not heretofore recognized the tort of intentional interference with a physician/patient relationship.  Brown contends the elements are similar to those of intentional interference with an existing contract.  The elements for that claim are as follows:  (1) the plaintiff had a contract with a third person; (2) the defendant knew of the contract; (3) the defendant intentionally and improperly interfered with the contract by certain actions; (4) the interference caused the third person not to perform, or made the plaintiff’s performance of the contract to be more burdensome or expensive; and (5) damages.  Nesler v. Fisher & Co., 452 N.W.2d 191, 198 (Iowa 1990).

            For two reasons we find that even if we were to recognize and adopt the tort of intentional interference with a physician/patient relationship, the plaintiff’s evidence did not support submission of the claim in this case and the trial court thus did not err in sustaining the defendants’ motion for directed verdict on this claim. 

            Brown’s underlying claim, for which she sought supporting information, was for an injury and infection of her right leg.  She sought, and Dr. Cheerla and the defendants provided, all of Brown’s medical records in their possession, custody or control.  Brown then sought Dr. Cheerla’s opinion concerning the cause of the infections in her legs.  However, Dr. Cheerla’s obligation was to provide medical care and treatment to Brown during the existence of a contractual, physician/patient relationship.  We agree with the defendants that the information requested was not medical care or treatment, or essential or necessary to medical care or treatment.  Thus, Dr. Cheerla had no duty to provide the requested opinions. 

            Further, and more importantly, the undisputed facts show Brown never mentioned any problem with her right leg to Dr. Cheerla, and Dr. Cheerla never saw, examined, or treated any wound on Brown’s right leg.  In addition, there is no substantial evidence that Dr. Cheerla had any knowledge of that wound, what might have caused it, or what the cause of any infection in Brown’s right leg might have been.  Assuming without deciding that substantial evidence supported the other elements of the tort, under these circumstances there simply is no substantial evidence that any act or omission by any defendant, which might have caused Dr. Cheerla to decline to respond to Brown’s attorney’s request for an opinion concerning causation, caused any damages to Brown.^[1] 

            We affirm the trial court’s ruling granting a directed verdict on the claim of intentional interference with a physician/patient relationship. 

IV.       INCONSISTENT JURY VERDICT.

            Brown claims the trial court erred in denying her motion for additur, or in the alternative for new trial.^[2]  She claims that the jury, having found GCH negligent, was required to find from the evidence that she sustained some amount of resulting damages, if only for pain, suffering, and scarring, if not also for a subsequent infection.

            It is fundamental that a jury’s verdict be liberally construed to give effect to the intention of the jury and to harmonize the verdict if it is possible to do so.  Hoffman v. National Med. Enters., Inc., 442 N.W.2d 123, 126 (Iowa 1989).  The test is whether the verdicts can be reconciled in any reasonable manner consistent with the evidence and its fair inferences, and in light of the jury instructions.  Id. at 126-27.  Only where the verdict is so logically and legally inconsistent that it cannot be reconciled will it be set aside.  Id. at 127.

            Brown argues that the jury verdict is fatally inconsistent because the jury found the defendant hospital negligent and under the undisputed facts “the negligence of the defendants was therefore a proximate cause of damages to the plaintiff as a matter of law.”  For the reasons that follow we conclude the record does not establish that the jury verdict is inconsistent, and thus conclude the trial court did not abuse its discretion in denying Brown’s motion. 

            The special verdict form contained the following three questions to be answered by the jury:  “(1) Was the Defendant, Greater Community Hospital, negligent?  (2) Was the negligence of Defendant, Greater Community Hospital, a proximate cause of damage to the Plaintiff?  (3) What are the damage amounts, if any, for:  Past pain and suffering[.]”  The jury answered “yes” to the first question, finding that GCH was negligent, but answered “no” to the second question, thereby finding that Brown had not proved the negligence of GCH was a proximate cause of damage to Brown. 

According to the marshalling instruction, Instruction No. 8, Brown was required to prove (1) that GCH was negligent in that “during the x-ray examination of Mary Brown’s leg on July 6, 1999 the x-ray technician failed to use ordinary care under the circumstances then and there existing,” (2) that “negligence was proximate cause of damage to Mary Brown,” and (3) the “amount of damage.”  The court gave the following instruction on proximate cause: 

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct.  “Substantial” means the party’s conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.

 

            In negligence claims not involving res ipsa loquitur^[3] the plaintiff must identify the specific acts or omissions relied on to generate a jury issue.  Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000); Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995).  Our supreme court has stated:

            The purpose of requiring the jury to consider factual specifications is to limit the determination of facts or questions arising in negligence claims to only those acts or omissions upon which the court has had an opportunity to make a preliminary determination of the sufficiency of the evidence to generate a jury question.  Each specification should identify either a certain thing the allegedly negligent party did which that party should not have done, or a certain thing that party omitted that should have been done, under the legal theory of negligence that is applicable. 

 

Herbst, 616 N.W.2d at 585-86 (quoting Coker v. Abell-Howe Co., 491 N.W.2d 143, 151 (Iowa 1992)).  Here, without objection by Brown, the marshalling instruction set forth no specific acts or omissions of negligence, but instead in relevant part stated only that Brown was required to prove “the x-ray technician failed to use ordinary care under the circumstances then and there existing.”  It is thus impossible to determine what act or omission the jury found to be negligent.  Under such circumstances it is impossible to determine whether the record contains substantial evidence that any damage Brown claims to have sustained was proximately caused by the unidentified act or omission.  It is therefore also impossible to determine that there is any inconsistency between the finding of unidentified negligence and the finding that the negligence was not a proximate cause of damage to Brown. 

            Although the foregoing could conclude our inquiry, we further note that there was conflicting evidence on almost every point concerning how and when any injury to Brown’s right leg occurred, and the nature and extent of any injury and damage.  There was undisputed evidence that after July 6 Brown had a very small (one centimeter by two centimeters) lesion on her right lower leg.  However, the evidence was in conflict concerning whether the injury had occurred before her left knee was x-rayed on July 6 or occurred during that procedure.  Brown claimed the x-ray equipment struck her leg, resulting in some tissue being “gouged out” and her leg bleeding.  However, other evidence indicated the small lesion already existed prior to the x-ray on July 6, Brown moved her leg and bumped the x-ray machine, and all that resulted was a small scab being knocked off of a superficial wound, followed by minimal, brief bleeding. 

            It is also undisputed that shortly after July 6 Brown had a “staph” infection in the area of the small lesion on her right leg.  A nurse practitioner testified that an open wound could result in a staph infection.  However, it is undisputed that Brown had a staph infection in her surgically replaced left knee prior to and after July 6, and the record contains no substantial evidence that the staph infection in the lesion on Brown’s right leg was in fact caused by the scab being knocked off or a superficial wound occurring on July 6.  The jury could reasonably have believed Brown’s right-leg staph infection was caused by her pre existing left knee staph infection. 

            Based on the evidence in the record, the jury could have determined there was conflicting evidence as to when and how Brown’s right leg was injured or was injured and re-injured, how any re-injury occurred, and the nature, extent, and consequences of any re-injury.  It could have resolved those conflicts in favor of the defendants.  The jury could also have reasonably found that even if the hospital and its employee were negligent, Brown sustained only nominal damage as a result of such negligence, because all that happened to Brown was the dislodging of a small scab with minimal bleeding, as a result of Brown’s own movement. 

            We conclude Brown has not shown that the jury verdict is inconsistent.  First, there is no way to determine what act or omission the jury found to be negligent and thus no way to determine whether that finding is inconsistent with its finding of no proximate cause.  Further, the jury could have reasonably found that Brown suffered no damage of significance as the result of any negligence on the part of the defendants. 

V.        CONCLUSION.

            We conclude the trial court did not err in sustaining the defendants’ motion for directed verdict on the claim of interference with a physician/patient relationship.  We further conclude the trial court did not abuse its discretion in denying Brown’s motion for additur or new trial.

            AFFIRMED.