appellant brief

IN THE SUPREME COURT OF IOWA
FILED
SUPREME COURT NO. 11-0657
P6Ik County Law No. LACV 119246
OCT 0 0 201!
CLERK SUPREME COURT]
THE ESTATE OF ERIKA L. HERREN ANDERSON, by and through its
duly appointed administrator, Todd Herren; TODD HERREN, individually
and as next best friend and natural father of RYAN HERREN, a minor and
BRYNN HERREN, a minor;
Plaintiffs-Appellants,
vs.
IOWA DERMATOLOGY CLINIC, PLC, a corporation; CHARLES W.
LOVE, M.D., an individual; and PATHOLOGY LABORATORY, P.C, a
corporation, now known as IOWA PATHOLOGY ASSOCIATES, P.C, a
corporation;
Defendants-Appellees.
APPEAL FROM THE IOWA DISTRICT COURT
FOR POLK COUNTY
THE HONORABLE JUDGE RICHARD G. BLANE, II
PLAINTIFFS-APPELLANT'S
FINAL BRIEF AND REQUEST FOR ORAL ARGUMENT
Alan O. Olsen AIN 000014073
Marc A. Humphrey AT0003843
3116 Ingersoll Ave.
2203 Grand Avenue
Des Moines, Iowa 50312
Des Moines, Iowa 50312
Telephone: (515) 271-9100
Telephone: (515) 331-3510
Facsimile: (515) 271-8100
Facsimile: (515) 331-3544
E-Mail: lem@olson-law.net
E-mail: frim@humphreylaw.com
ATTORNEYS FOR PLAINTIFFS-APPELLANTS
TABLE OF CONTENTS
TABLE OF CONTENTS
1
TABLE OF AUTHORITIES
3
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1
STATEMENT OF THE CASE
3
STATEMENT OF FACTS
4
ROUTING STATEMENT
8
PRESERVATION OF ERROR
8
I.
THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR
SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THE DOCTRINE
OF EQUITABLE ESTOPPEL BARS DEFENDANTS FROM ASSERTING A LIMITATIONS
DEFENSE
II.
9
THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR
SUMMARY JUDGEMENT BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THE
CONTINUIM OF NEGLIGENT CARE DOCTRINE BARS DEFENDANTS FROM ASSERTING A
LIMITATIONS DEFENSE
9
STANDARD OF REVIEW
ARGUMENT
A.
9
10
Plaintiff's Claim of Equitable Estoppel Should Bar Defendants' from Asserting
their Limitations Defense in this Case
B.
10
In Accordance with the Continuum of Negligent Treatment, the Limiting
Statutes Should Not have Began to Run Until September 6, 2007
i.
19
The continuum of negligent treatment applies to lowa Dermatology and Dr.
Love because there was a continuous and unbroken course of negligent
treatment that was so related that the treatment constituted one continuing
wrong
a.
20
Defendants lowa Dermatology and Dr. Love provided a continuum of
negligent care when they failed to diagnose Erika's melanoma through the
diagnostic testing and physical examinations that spanned from 1996 to 2007
22
b.
The treatment of Erika's skin lesions was so related that it constitutes one
continuing wrong by both lowa Dermatology and Dr. Love
31
ii.
The continuum of negligent care should apply to Pathology Associates
because they worked in conjunction with lowa Dermatology and Dr. Love to
provide health care to Erika as one team.....
CONCLUSION
32
35
ii
TABLE OF AUTHORITIES
Cases
Baier v. Ford Motor Company, 2005 WL 928615 (ND Iowa 2005)
4, 10
Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994)
4, 14
Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005)
Comstockv. Collier, 137 P.2d 845 (Colo. 1987)
4, 9, 10
4, 14
Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000)
9
Cunningham v. Huffman, 609 N.E.2d 321 (111. 1993)
4, 14
Ferrara v. WW/, 753 N.E.2d 1179 (2d Dist. 2001)
4, 14
Hull v. Medical Associates ofMenomonee Falls, Ltd., 589 N.W.2d 454 (Ct.
App. 1998)
4, 14
Junkins v. Branstad, 412 N.W.2d 130, 132 (Iowa 1988)
9
Kelly v. /owz M/f. i/w. Co., 620 N.W.2d 637, 641 (Iowa 2000)
9
Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995)
Shriver v. City ofOkoboji, 567 N.W.2d 397, 400 (Iowa 1997)
Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983)
passim
9
4, 14
Statutes
Iowa Code §614.1(9) (2011)
3, 19
Iowa Rules of Appellate Procedure 6.903(2)(i)
35
Iowa Rules of Appellate Procedure 6.1101(2)(d)
10
iii
Iowa Rules of Appellate Procedure 6.907
11
Other Authorities
Miller, Robin, Timeliness ofAction Under Medical Malpractice Statute of
Repose, Aside from Effect ofFraudulent Concealment of Patient's Cause
ofAction, 14 A.L.R.6th 301 (2006)..
4, 14
Rook's Textbook of Dermatology vol. 2 (Tony Burns et al, 8th ed., WileyBlackwell 2010)
4, 16, 17
iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I.
THE DISTRICT COURT ERRED IN GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT
BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE
GENUINE ISSUES OF MATERIAL FACT AS TO THE
APPLICABILITY OF THE DOCTRINE OF EQUITABLE
ESTOPPEL WHICH BARS DEFENDANTS FROM EVEN
ASSERTING A LIMITATIONS DEFENSE.
II.
THE DISTRICT COURT ERRED IN GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT
BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE ARE
GENUINE ISSUES OF MATERIAL FACT AS TO THE
APPLICABILITY OF THE CONTINUUM OF NEGLIGENT
CARE DOCTRINE WHICH DELAYS THE
COMENNCEMENT OF THE STATUTE OF LIMITATIONS
UNTIL SEPTEMBER 6, 2007.
Cases
Baier v. Ford Motor Company, 2005 WL 928615 (ND Iowa 2005).
Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994).
Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005).
Comstockv. Collier, 131 P.2d 845 (Colo. 1987).
Cunningham v. Huffman, 609 N.E.2d 321 (111. 1993).
Ferrara v. Wall, 753 N.E.2d 1179 (2d Dist. 2001).
Hull v. Medical Associates ofMenomonee Falls, Ltd., 589 N.W.2d 454 (Ct.
App. 1998).
Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995).
Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983).
Statutes
Iowa Code §614.1(9) (2011).
Other Authorities
Miller, Robin, Timeliness ofAction Under Medical Malpractice Statute of
Repose, Aside from Effect of Fraudulent Concealment of Patient's Cause of
Action, 14 A.L.R.6th 301 (2006).
Rook's Textbook of Dermatology vol. 2 (Tony Burns et al, 8th ed., WileyBlackwell2010).
2
STATEMENT OF THE CASE
This case arises out of the circumstances and unfortunate death of
Erika Herren Anderson (hereinafter "Erika") from metastatic melanoma on
November 3, 2009. (Petition ^ 20; App. p. 20). As a result of her death,
Plaintiffs brought his action against Defendant Iowa Dermatology Clinic,
P.L.C. (hereinafter "Iowa Dermatology"), Dr. Charles W. Love (hereinafter
"Dr. Love"), and Pathology Laboratory, P.C. now known as Pathology
Associates (hereinafter "Pathology Associates") asserting that had
Defendants properly diagnosed Erika and timely commenced treatment, she
would still be alive today. (Petition; App. pp. 1-23). This action was
initiated on August 11, 2010. Id. Plaintiffs allege that Defendant Iowa
Dermatology by and though Defendant Dr. Love was negligent in their care
of Erika and that the negligent care resulted in her death. (Petition Count I,
lf7; App. p. 9). Further, Plaintiffs allege that Defendant Pathology
Associates were negligent for their care of Erika when microscopically
evaluating her biopsied lesions in 1997, 1998 and 1999. (Petition Count II,
^[15; App. pp. 15-16). Additionally, Plaintiff seeks recovery for loss of
spousal consortium to Erika's surviving husband, Todd, caused by
Defendants negligent care. (Petition Count III ^2- App. p. 18; Count IV \2App. pp. 19-20). Finally, Plaintiff makes claim for loss of parental
3
consortium against Defendants on behalf of Erica's two surviving children,
Ryan and Brynn. (Petition Count V ^2- App. p. 21; Count VI ^[2- App. p.
22).
On October 11, 2010, Defendant Iowa Dermatology and Defendant
Dr. Love filed a Motion for Partial Summary Judgment. On October 15,
2010, Defendant Pathology Associates filed A Motion for Summary
Judgment. Both motions alleged that the statute of limitations and statute of
repose had both run according to Iowa Code § 614.1(9). On February 22,
2011, Plaintiffs filed their resistance to Defendants' Motions for Summary
Judgment and Partial Summary Judgment. (Ruling p. 1; App. p. 303).
Plaintiffs also produced a Memorandum of Authorities, a Response to
Defendant's Statement of Undisputed Facts, and Appendix. Id. On March
2, 2011 a hearing was held by the district court. Id. On March 31, 2011, the
Honorable Judge Richard G. Blane II entered his ruling. (Notice of Appeal
p. 2; App: p. 328). As a result of Judge Blane's unfavorable ruling,
Plaintiffs filed a notice of appeal on April 27, 2011. Finally, on May 6,
2011, Plaintiffs filed an interlocutory appeal in lieu of their original appeal.
STATEMENT OF FACTS
Erika died on November 3, 2009 due to a metastasized melanoma that
had infiltrated her liver. (Ruling p. 4; App. p. 306). Erika was a graduate of
4
Drake Law School, a lobbyist in Des Moines, a wife, and most importantly a
mother of two (2) young children. (PMA p. 1; App. p. 97). Erika's death
was both tragic and preventable, if her melanoma had been diagnosed and
treated at its early onset. Erika began her ongoing course of treatment with
Defendant Iowa Dermatology and Dr. Love, a dermatologist, on September
18, 1996. (Ruling p. 2; App. p. 304). Over the next eleven (11) years, Erika
was treated by Iowa Dermatology and Dr. Love on twenty-six (26)
occasions for the continuous care of various moles and lesions across her
body - specifically the lesion on her neck that was removed on her first
office visit. Id. Specifically, Iowa Dermatology by and through Dr. Love
provided continuous care to Erika on the following dates: September 18,
1996; January 2, 1997; February 15, 1997; June 3, 1997; July 8, 1997;
January 27,1998; February 28, 1998; March 6,1998; August 18, 1998;
September 4, 1998; September 11, 1998; March 2, 1999; April 1, 1999;
April 9, 1999; April 15, 1999; April 23, 1999; July 19, 1999; August 24,
1999; October 4, 1999; November 9, 1999; September 26, 2000; September
10, 2002; March 15, 2004; September 15, 2004; June 14, 2006; and
September 6, 2007. (PMA p. 2; App. p. 98). Six (6) of the appointments
between Erika and Dr. Love resulted in a biopsy being done on the left side
of Erika's neck. (Ruling p. 3; App. p. 305). These biopsies were performed
5
on September 18, 1996; February 28, 1998; September 4, 1998; April 1,
1999; April 9, 1999; and April 15, 1999. Id. Malignant melanoma was
never microscopically diagnosed in any of the six tissue specimans taken
from Erika's left neck by any of the Defendants.
Of the six (6) biopsies taken from Erika's neck, five (5) were sent to
Defendant Pathology Associates to be microscopically evaluated by Dr.
Scupham. Id. The biopsied lesions Dr. Scupham received were from
September 18, 1996; September 4, 1998; April 1, 1999; April 9, 1999; April
15, 1999. Id. Each lesion was microscopically evaluated and each was
determined to be noncancerous. Id. Pathology Associates would
occasionally mount the specimen on a slide so it could be microscopically
evaluated and then would send the slide back to Iowa Dermatology and/or
Dr. Love for such an evaluation. ( PMA p. 3; App. p. 99). The February 28,
1998 slide was microscopically evaluated by Dr. Love, not Dr. Scupham
(Ruling p. 3; App. p. 305). The February 28, 1998 slide was later
inadvertently destroyed while under the custody of Dr. Love. Id. After
April 15, 1999, Pathology Associates never received another skin specimen
from Iowa Dermatology in regards to Erika's neck lesion. Id.
On March 18, 2008, Erika discovered a lump under her chin and
decided to see Dr. Mark K. Zlab, an ear, nose, and throat specialist working
6
at the Iowa Clinic. (PMA p. 4; App. p. 100). On August 14, 2008, after
almost 5 months of treatment, Erika decided to have the lump biopsied. Id.
On August 19, 2008, Erika was advised that biopsied tissue specimen was
determined to be melanoma. (Ruling p. 3; App. p. 305). After the diagnosis
was made, Dr. Zlab referred Erika to the Mayo Clinic in Rochester,
Minnesota (hereinafter "Mayo"). (PMA p. 4; App. p. 100). While at Mayo,
Erika came under the care of Dr. Mark Pittelkow, a dermatologist, and Dr.
Eric Moore, an ear, nose, and throat specialist. Id. In conjunction with the
Mayo evaluation, Erika's tissue specimans from her left neck were sent to
Mayo for an independent evaluation. Id. Significantly, the tissue samples of
the first biopsy from September 18, 1996, excised by Defendant Dr. Love
and evaluated by Defendant Pathology Laboratory were reviewed by the
specialists at Mayo on August 29, 2008, who determined said specimen to
be "malignant melanoma without ulceration, at least Clark's Level II, at least
Breslow thickness of 0.38mm." Id. Likewise, the specimens from April
1999 were evaluated at Mayo and determined to show malignant melanoma.
(SJ App. Tab 1, Ex. 3; App. p. 200-202)
Following the diagnosis, Erika began a long and painful course of
treatment at Mayo. (PMA p. 5; App. p. 101). In December of 2008, Erika
returned to Mayo for her three (3) month check up. Id. During the check
7
up, it was determined that the melanoma had spread to her liver. Id. After
two (2) unsuccessful attempts with eight (8) week courses of chemotherapy,
Erika decided to seek treatment at the esteemed MD Anderson Center in
Houston, Texas. Id. Regrettably, Erika passed away as a result of
Defendants' negligent care in failing to timely diagnose and treat her
melanoma. Id.
ROUTING STATEMENT
For this matter to be decided properly there should be a change in
existing Iowa law. Accordingly, the Iowa Supreme Court should hear this
case pursuant to Iowa R. App. P. 6.1101(2)(d).
PRESERVATION OF ERROR
The record created by the Plaintiffs in resistance to the Defendant's
Motion for Summary Judgment adequately preserved error in all issues the
Plaintiffs bring on appeal. See Memorandum of Authorities.
8
I.
THE DISTRICT COURT ERRED IN GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT
BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE
ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE
APPLICABILITY OF THE DOCTRINE OF EQUITABLE
ESTOPPEL WHICH BARS DEFENDANTS FROM EVEN
ASSERTING A LIMITATIONS DEFENSE.
II.
THE DISTRICT COURT ERRED IN GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT
BASED ON IOWA CODE § 614.1(9)(a) BECAUSE THERE
ARE GENUINE ISSUES OF MATERIAL FACT AS TO THE
APPLICABILITY OF THE CONTINUUM OF NEGLIGENT
CARE DOCTRINE WHICH DELAYS THE
COMENNCEMENT OF THE STATUTE OF LIMITATIONS
UNTIL SEPTEMBER 6, 2007.
STANDARD OF REVIEW
The trial court's decision to grant the Motion for Summary Judgment
is reviewed for the correction of errors at law. See Iowa R. App. P. 6.907;
Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000). Error at law
is found when the record before the trial court contains a material fact or, if
no material fact exists, the law was applied incorrectly. Shriver v. City of
Okoboji, 567 N.W.2d 397, 400 (Iowa 1997). In making its review, the court
should view the entire record in a light most favorable to the non moving
party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
9
Further, the court should "indulge in every legitimate inference that the
evidence will bear in an effort to ascertain the existence of a fact question."
Id. (citing Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 454 (Iowa
1989). Additionally, a fact is material only if the dispute is over facts that
may affect the outcome of the suit. Junkins v. Branstad, 412 N.W\2d 130,
132 (Iowa 1988).
ARGUMENT
A. Plaintiffs Claim of Equitable Estoppel Should Bar Defendants'
from Asserting their Limitations Defense in this Case.
Defendants argue that any claims of negligence arising from the care
and treatment of decedent Erika occurring more than six years prior to the
filing of this lawsuit are time barred by the Statute of Repose as set forth in
Iowa Code § 614.1(9). While it is undoubtedly true that if the Statute of
Repose is applicable, Plaintiffs are precluded from bringing any cause of
action for a negligent act six years after the occurrence of that act, the
doctrine of equitable estoppel is applicable and should estop the Defendants
from raising a limitations defense.
The doctrine of fraudulent concealment is a form of equitable estoppel
that precludes a defendant from raising a statute of limitations defense.
Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005). "Fraudulent
10
concealment does not affect the running of the statutory limitations period;
rather, it estops a defendant from raising a statute-of-limitations defense." Id.
"Equitable estoppel bars a defendant from pleading the running of
statute of limitations if the plaintiff is induced to refrain from bringing a
timely action by the defendant's fraud, misrepresentation, or
deception." Id. (quoting 51 Am.Jur.2d Limitation of Actions § 399, at 705).
The foundational elements of equitable estoppel are well established:
(1) The defendant has made a false representation or has concealed material
facts; (2) the plaintiff lacks true knowledge of the facts; (3) the defendant
intended the plaintiff to act upon such representations; and (4) the plaintiff
did in fact rely upon such representations to his prejudice. Christy, 692
N.W.2d at 702.
"To prove the first element of equitable estoppel/fraudulent
concealment, the plaintiff must prove either (1) 'that the defendant
affirmatively concealed the facts' or (2) 'a confidential or fiduciary
relationship exists between the person concealing' the facts and 'the
aggrieved party.'" Baier v. Ford Motor Company, 2005 WL 928615 (ND
Iowa 2005) (quoting McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa
1997)) (emphasis added). Here, the record shows that a confidential
relationship existed between Plaintiffs and the Defendants and that the
ii
Defendants concealed material facts relating to the care of Erika. (Iowa
Code 622.10 (2009): the physician-patient relationship is confidential).
A patient who has undergone a biopsy because of a concern for skin
cancer has a right to know and to understand not only who is making the
life-changing determination as to whether orriotthe patient has skin cancer,
but also has a right to know whether said person is the most qualified person
to make that determination. In the District Court's decision finding that the
doctrine of equitable estoppel was not applicable, the Court incorrectly
stated that "Plaintiffs cite no legal authority for the contention that Erika had
a 'right to know' who was actually performing the analysis on the biopsied
tissue samples." (See Ruling on Motion for Summary Judgment (Ruling p.
16; App. p. 318)). The Court further stated that "there is no basis in the law
that Defendants were obligated to advise Erika that Dr. Love was not the
most qualified and that a pathologist had to analyze the tissue slide." Id.
However, in coming to this conclusion, the Court ignored the "patient rule"
as enunciated by the Iowa Supreme Court in Pauscher v. Iowa Methodist
1
Medical Center, 408 N.W.2d 355 (Iowa 1987). In Pauscher, the Court
described the "patient rule" (doctrine of informed consent) as follows:
1
Marc Humphrey, attorney for Plaintiffs, cited Pauscher during the oral arguments that were held on March
2, 2011 and made the argument that under the "patient rule" Erika was entitled to all material information
which a reasonable patient would find important in making decisions regarding medical care and that the
fact that the biopsy slides were not being evaluated by the most qualified professional was certainly the type
12
the doctrine of informed consent arises out of the unquestioned
principle that absent extenuating circumstances a patient has the
right to exercise control over his or her body by making an
informed decision concerning whether to submit to a particular
medical procedure.
The physician's duty to disclose is measured by the patient's
need to have access to all information material to making a
truly informed and intelligent decision concerning the proposed
medical procedure.
Pauscher, 408 N.W.2d at 358-359 (citing Cowman v. Hornaday, 329
N.W.2d 422, 424-25, 27 (Iowa 1983)).
As this tragic event has clearly demonstrated, the failure to timely
diagnose cancer can have deadly consequences. For this reason, the
comparative qualifications of those persons evaluating slides for the
presence of cancer falls within the category of material information that
must be provided to a patient so that the patient can make an intelligent,
informed decision regarding her future treatment. It is clearly important
information which a reasonable careful patient would want to know in
making decisions about her care and treatment. These microscopic
evaluations, if done negligently, often mean the difference between life and
death when the issue is possible skin cancer or melanoma. Thus, medical
professionals have a duty to divulge to a patient whenever a biopsied tissue
of material information that a reasonable patient would find important (Transcript of hearing on motions for
summary judgment; App. p. 443)
13
specimen is not being interpreted by the most qualified medical
2
professional, a board certified pathologist Here, Defendants Dr. Love and
Iowa Dermatology never explained to Plaintiffs that the skin slides taken as
a result of the many biopsies that Erika underwent were being examined inhouse by Dr. Love, a dermatologist, and not by a board certified pathologist.
(Affidavit of Todd Herren p. 2; App. p. 278). Not only did Erika and Todd
not know that Dr. Love was interpreting her tissue specimens, Plaintiffs
understandably did not appreciate the differences in the training and the
abilities of a dermatologist as compared to a pathologist as it relates to the
interpretation of excised skin for the presence of cancer. (Affidavit of Todd
Herren p. 2; App. p. 278). Nor were they told that Mayo Clinic, one of the
top medical institutions in the world routinely evaluates such specimans, if
requested. Furthermore, Defendants Dr. Love and Iowa Dermatology never
explained the differences or the significance thereof in the training and the
abilities of a dermatologist as compared to a board certified pathologist or
dermatopathologist as it relates to the interpretation of excised skin for the
presence of cancer. Id. The failure of Dr. Love and Iowa Dermatology to
disclose such material facts to their patient regarding the care and treatment
of Erika amounted to a misrepresentation and a violation of the patient rule
2
Board certified pathologists (either dermatopathologists or pathologists (AP/CP or AP boarded)) have
superior training than dermatologists to recognize cellular abnormalities, including melanoma, under a
microscope than do dermatologists (Affidavit of Joy Trueblood p. 3; App. p. 275).
14
because the withholding of this information prevented Erika from making a
truly informed and intelligent decision concerning her treatment. Because of
this failure of Defendants to inform Plaintiffs that the slides were being
interpreted in-house by Dr. Love and not sent out to a more qualified
medical professional, Plaintiffs were misled and given a false sense of
security. The Plaintiffs were led to believe that Erika was receiving the best
care when in fact the slides were not being consistently reviewed by the
most qualified medical professional. Failing to inform Plaintiffs of all
material facts relating to her care, the Defendants' action constituted a
misrepresentation which generates genuine issues of material fact as to the
applicability of the doctrine of equitable estoppel.
Defendants Dr. Love and Iowa Dermatology Clinic intended the
Plaintiffs to rely upon their representations that the skin excised from Erika's
body was being reviewed by the most qualified medical professional and the
Plaintiffs did in fact rely upon such representations to their detriment.
Plaintiffs reliance was the reasonable and the foreseeable result of said
misrepresentations particularly given the nature of the doctor-patient
relationship. Had Erika known that the slides were not consistently being
3
See Murtha v. Cahalan, 745 N.W.2d 711, 718 (Wiggins, concurrence) (citing Hardi v. Mezzanotte, 818
A.2d 974, 980 (D.C.2003)): (holding when the physician is at the stage where he is providing a diagnosis
and advice for the patient's medical care, the patient cannot be expected to question him or know the
doctor's actions might be negligent and result in harm to the patient).
15
interpreted by a board certified pathologist, Erika would have sought
treatment elsewhere. (Affidavit of Todd Herren p. 3; App. p. 279). At a
minimum, she would have asked that her tissue specimens be
microscopically evaluate elsewhere, such as the Mayo Clinic. Furthermore,
had a board certified pathologist reviewed each and every slide created as a
result of the multiple biopsies, the likelihood that the cancer would have
4
been discovered at an earlier time would have increased. The Plaintiffs'
reasonable reliance on Defendants' misrepresentations prevented them from
discovering the negligent acts ofthe Defendants in a timely manner but also
prevented the Plaintiffs from filing this suit within the time period required
by the statute of repose.
Defendant Pathology Associates should also be estopped from
asserting a limitations defense. Erika was under the collective care of the
Defendants from a period beginning September 18, 1996 to September 6,
2007. Throughout this time period, Erika never received any correspondence
from Defendant Pathology Associates detailing the extent of its involvement
with her care. For example, at no time did the Defendant Pathology
Associates directly provide Erika with information detailing its
findings/conclusions based upon its review ofthe excised skin. The most
4
Board certified pathologists (either dermatopathologists or pathologists (AP/CP or AP boarded)) have
superior training than dermatologists to recognize cellular abnormalities, including melanoma, under a
microscope than do dermatologists (Affidavit of Joy Trueblood p. 3; App. 275).
16
egregious failure to inform occurred when the Defendant failed to inform
Erika that in February, 1998, it prepared a biopsy slide for Dr. Love, but did
not have any of the board certified pathologists that it employs examine the
slides for the presence of cancer. (Affidavit of Todd Herren p. 2; App. 278).
This failure to keep its patient, to whom it owed a duty, apprised of the
extent of its involvement in her care amounted to a misrepresentation. If a
tissue specimen is sent to a pathology lab, it is reasonably foreseeable that a
patient would conclude that a board-certified pathologist would review the
tissue specimen microscopically and not simply prepare it into a slide and
send it off for review by a less qualified party. Thus, from a review of the
relevant facts, it is clear that the Plaintiffs "lacked the true knowledge of the
facts." The Plaintiffs were unaware of the extent to which Pathology
Associates was involved in Erika's care and the Defendants made no effort
to inform the Plaintiffs of such. (Affidavit of Todd Herren p. 2; App. 278).
Defendant Pathology Associates intended Erika to act upon its
misrepresentations and indeed she relied upon these misrepresentations to
her detriment. Had Plaintiffs known the extent of the involvement of the
Defendant or the lack thereof, she would have demanded that the slides be
reviewed by the most qualified medical professional, a board certified
pathologist. (Affidavit of Todd Herren p. 3; App. 278); (Affidavit of Joy
17
Trueblood p. 3; App. 275). Had the slide prepared by the Defendant in
February 1998 been reviewed by a board certified pathologist, the likelihood
that the cancer would have been diagnosed earlier would have increased.
This failure to provide the Plaintiffs with all material facts regarding their
treatment of Erika deprived Plaintiffs of their right to seek the best possible
medical care and ultimately delayed the discovery of the cancer and the
filing of this suit. For these reasons, the Defendants should be estopped from
claiming a limitations defense.
In conclusion, Todd Herren and Erika were misled by Defendants into
believing that the skin excised from Erika during the many biopsies she
underwent was consistently being examined by a board certified pathologist.
Because Defendants led Plaintiffs to believe that the slides excised from
Erika's body were being examined by a board certified pathologist and not
in-house by Iowa Dermatology, Plaintiffs continued under Defendants'
collective care and did not seek a second opinion or demand an examination
of all slides by a board certified pathologist. The misrepresentations and the
reasonable and expected reliance upon those representations not only meant
that Plaintiffs did not discover the cancer until it was too late but also made
it impossible for Plaintiffs to file suit within the six year period following
Defendants' first crucial error. For these reasons, Defendants should be
18
equitably estopped from raising a limitations defense and thus the District
Court erred in granting Defendants' motions for summary judgment based
on the statute of frauds.
B. In Accordance with the Continuum of Negligent Treatment, the
Limiting Statutes Should Not have Began to Run Until September
6, 2007.
Both Motions for Summary Judgment filed by Defendants against
Plaintiff in this case largely raise the same argument. Specifically,
Defendants Iowa Dermatology, Dr. Love, and Iowa Pathology Associates
argue that any allegations of negligence arising from care and treatment of
decedent Erika occurring more than six years prior to the filing of this
lawsuit are time barred by the Statute of Repose as set forth in Iowa Code §
614.1(9). See Iowa Code § 614.1(9) (stating that "in no event shall any
action be brought more than six years after the date on which occurred the
act or omission or occurrence alleged in the action to have been the cause of
the injury or death unless a foreign object unintentionally left in the body
caused the injury or death"). As discussed above, it is Plaintiffs contention
that both Defendants should be precluded from even asserting a limitations
defense in this case. However, if Defendants are permitted to rely upon the
statute of repose as contained in Iowa Code § 614.1(9), pursuant to the
continuum of negligent treatment doctrine, as against Iowa Dermatology
19
and Dr. Love, that period would not have begun to run until September
6, 2007, thus rendering all of Plaintiffs claims against those Defendants
timely filed under Iowa law.
i.
The continuum of negligent treatment applies to Iowa
Dermatology and Dr. Love because there was a continuous and
unbroken course of negligent treatment that was so related that
the treatment constituted one continuing wrong.
Importantly, this Court has entertained adoption of the continuum of
negligent care doctrine for more than fifteen years. See Langner v. Simpson,
533 N.W.2d 511, 522 (Iowa 1995). Pursuant to that doctrine, a statute of
repose may be tolled if the Plaintiff is able to establish the following
requirements "(1) that there was a continuous and unbroken course of
negligent treatment, and (2) that the treatment was so related as to
constitute one continuing wrong." Id. (citing Cunningham v. Huffman, 609
N.E.2d 321, 325 (1993)). Significantly, if the above requirements are met,
the limitations statute does not begin to run until the last date of negligent
treatment. Id.; see also Ferrara v. Wall, 753 N.E.2d 1179 (2d Dist. 2001)
(stating that "the negligent medical treatment continuum begins on the
medical practitioner's first negligent medical treatment of the patient and
continues until the practitioner's last negligent medical treatment of the
patient, at which point the repose period begins to run") (emphasis
20
added). This doctrine has wisely been adopted and applied to toll statutes of
repose in a number of jurisdictions in cases involving continuous negligent
treatment. See e.g. Comstock v. Collier, 737 P.2d 845 (Colo. 1987);
Blanchette v. Barrett, 640 A.2d 74 (Conn. 1994); Cunningham v. Huffman,
609 N.E.2d 321 (111. 1993); Smith v. Dewey, 335 N.W.2d 530 (Neb. 1983);
Hull v. Medical Associates of Menomonee Falls, Ltd., 589 N.W.2d 454 (Ct.
App. 1998). To be certain, the rationale for this doctrine finds its strength in
the principles of fairness and justice that are the hallmarks of our civil justice
system in Iowa.
In the Cunningham case relied upon by the Court in the Langner
decision, the Illinois Supreme Court applied the continuum of negligent
treatment doctrine to toll its statute of repose in a medical malpractice
action. 609 N.E.2d 321. Significantly, the Illinois statute of repose for
medical malpractice actions in that case employed strikingly similar
language to Iowa Code § 614.1(9). See Id. (ruling that the word
"occurrence" as contained within the Illinois statute of repose may include a
continuing negligent course of treatment for a specific condition). Further, in
5
construing the meaning of the phrase "the act or omission or occurrence,"
contained in its statute of repose, the Illinois Supreme Court found it
5
lowa Code § 614.1(9) utilizes the same "act or omission or occurrence" language.
21
improbable that the state legislature intended the word "occurrence" to be
limited to a singular event. See Miller, Robin, Timeliness of Action Under
Medical Malpractice Statute ofRepose, Aside from Effect of Fraudulent
Concealment of Patient's Cause ofAction, 14 A.L.R.6th 301 (2006) (citing
Cunningham, 609 N.E.2d 321). Rather, the Cunningham court determined
that "[w]hen the cumulative result of continued negligence is the cause of
the injury, the statute of repose cannot start to run until the last date of the
negligent treatment." Id. While the Court has yet to officially adopt the
continuum of negligent treatment doctrine, it has clearly indicated a
willingness to do so should the right case act as a vehicle for its adoption.
This is that case.
a. Defendants Iowa Dermatology and Dr. Love provided a
continuum of negligent care when they failed to diagnose
Erika's melanoma through the diagnostic testing and physical
examinations that spanned from 1996 to 2007.
As stated above, the first requirement for tolling a statute of repose
through the continuum of negligent treatment doctrine is that there must be a
continuous and unbroken course of negligent treatment. Langner, 533
N.W.2d at 522 (citing Cunningham, 609 N.E.2d at 325). In this case, there
was clearly a continuous, unbroken course of negligent treatment with
Defendants Iowa Dermatology and Dr. Love spanning more than ten years.
22
(Deposition of Dr. Love pp. 51-52; App. 132). The decedent, Erika, began
treating with Iowa Dermatology and Dr. Love on September 18, 1996.
(Deposition of Dr. Love p. 51; App. 132). Importantly, this professional
relationship between patient and physician was initiated by Erika in part due
to concerns she was having with an irregular mole she found on her left
neck. (Deposition of Dr. Love p. 53; App. 133). On that date, said mole was
excised and sent to Pathology Associates. (Dr. Love Deposition Ex. 1, App.
163-194). From that first visit of September 18, 1996, Erika would
consistently treat with Iowa Dermatology and Dr. Love on twenty-six
separate occasions over a ten year period. (Deposition of Dr. Love, pp.
51-80; App. 132-139).
Significantly, on each and every visit the skin ofher left neck, and
particularly the location where the troublesome mole was excised, would be
an area of concern for both Erika and Dr. Love. {Id.; Affidavit of Todd
Herren, App. 10). To be sure, Dr. Love's records reflect that her left neck
area was continuously examined at each office visit. (Dr. Love
Deposition, pp. 51-80, App. 1; Dr. Love Deposition Ex. 1, App. 2).
Moreover, to further amplify the continuous nature of the treatment Erika
was receiving on her left neck, that area was biopsied on six separate
occasions for microscopic evaluation. (Dr. Love Deposition Ex. 1; App.
23
163-194). However, each time such biopsies would occur, it was indicated to
Erika, and her husband Todd Herren, that the tissue was benign and
noncancerous. (Affidavit of Todd Herren; App. 277). Indeed, despite the
extensive and ongoing nature of her treatment with Iowa Dermatology and
Dr. Love, the lesion on Erika's left neck would not be diagnosed as
melanoma until it was much too late.
Although testing indicated the lesions were noncancerous, Erika was
still at risk for melanoma (Depo of Dr. Love, 29 Iflf 9-11; App. p. 127).
Plaintiffs insist that the knowledge of Erika's increased risk should have
caused Dr. Love to take extra care in assessing Erika's neck lesion. The
final series of biopsies revealed an atypia in the lesion. (Depo of Dr. Love, p.
68 U 2; App. p. 136). In April of 1999, three separate tissue specimens were
harvested. Each new specimen was requested by Dr. Scupham in order to
assure that there were clear margins. The repeated requests for deeper
margins, coupled with the finding of atypia should have heightend the
concerns of both Dr. Love and Dr. Scupham about skin cancer. It apparently
did not even though Defendant Dr. Love admits that an atypia can, in some
cases, create a concern of melanoma. (Depo of Dr. Love, p. 6823; App. p.
136). Shouldn't Erika have been informed of those findings? Shouldn't she
have been given the opportunity to know that there was good reason to
24
request an independent microscopic evaluation ofher tissue specimens,
given the dire consequences which would flow from a failure to properly
diagnose melanoma?
Defendants knew that Erika was at risk for melanoma when she
came in for her initial visit. (Depo of Dr. Love, p. 291fl 1; App. p. 127).
Later testing revealed another potential sign for melanoma, yet Dr. Love
took no further action. Plaintiffs contend that Dr. Love should have done
further testing to check for melanoma and his failure to do so constituted a
continuous course of negligent treatment that ended September 6, 2007.
According to Rooks Textbook of Dermatology, a traditional follow up
appointment after the excision of a primary melanoma with no spreading has
three steps. Rook's Textbook of Dermatology vol. 2 Ch. 54.53 (Tony Burns
et al, 8th ed., Wiley-Blackwell 2010). The first step is to check for any local
reoccurrence around the scar. Id. Second, the physician should palpate the
local drainage nodes for any clinically detectable evidence of nodal spread.
Id. Finally, the doctor should examine the rest of the skin surface for a
second primary melanoma. Id. According to the deposition of Dr. Love,
Erika and he had numerous appointments after the last excision from her
neck. (Depo of Dr. Love, pp. 73- 80; App. pp. 138-139). During these
appointments, Dr. Love would examine Erika's neck and then the rest ofher
25
body for new moles or lesions. Id. Plaintiffs are dumbfounded as to why
Dr. Love would perform two (2) of the three (3) physical examinations used
for metastasis analysis, but not the third and , in this case, most important
physical examination. Clearly, this record demonstrates genuine issues of
material fact as to the thoroughness of Dr. Love's followup evaluations of
Erika, particularly given the finding of atypia and the difficulty in obtaining
clear margins during the April 1999 biopsies. A jury could reasonably find a
continuum of negligent care on the part of Dr. Love with regard to his failure
to adequately evaluate Erika for possible metastatic melanoma.
After acknowledging that Iowa Dermatology and Dr. Love continued
to treat and examine Erika, the District Court erroneously distinguished
between the examination and the treatment of a patient, apparently, holding
that a doctor can be liable for negligent treatment but not for a negligent
failure to treat:
Although Erika continued to treat with Dr. Love, and he
examined the excised area on the left side of her neck, no
further biopsies were performed in that area and no other
medical treatment was provided to that area. His continuing
treatment, as shown by Dr. Love's medical records, was
examination and treatment to other areas of the body. Dr. Love
provided no further "negligent treatment" to that part of Erika's
body - the left side of the neck where the mole had been
excised.
26
By making this arbitrary distinction between examination and treatment, the
Court failed to recognize Plaintiffs claim that Defendants negligently failed
to properly examine Erika each of the twenty-six times over a ten year
period that she presented with concerns about the left side ofher neck. It is
undisputed that Dr. Love examined the left side of Erika's neck. (Depo of
Dr. Love, pp. 51-80; App. pp. 132-139). As noted above, Dr. Love's was
continuously negligent in his examinations of Erika, failing to follow the
standard of care.
Further, genuine issues of material fact exist as to whether Iowa
Dermatology and Dr. Love are negligent for not instructing Erika on how to
properly palpate her own lymph nodes so that she could actively manage her
lesions and the surrounding area. Rook's Textbook of Dermatology states
that all patients who have undergone either stage one or stage two melanoma
surgeries should be instructed on how to assess the lesion, surrounding
lymph nodes, and other moles to see if the melanoma has returned or spread
from the original site. While Dr. Love and Dr. Scupham never made such a
diagnosis, such a diagnosis was made when the Mayo Clinic pathologists
independently evaluated the same tissue specimens. Further, the finding of
atypia in April of 1999 should have increase the level of suspicion for
melanoma and therefor dictated the thoroughness of the followup
27
evaluations performed after the April 1999 biopsies. Rook's Textbook of
Dermatology vol. 2 Ch. 54.53 (Tony Burns et al, 8th ed., Wiley-Blackwell
2010). Again, like the follow up visits with Dr. Love, Dr. Love would have
had to make minimal effort to explain and demonstrate to Erika how she
could palpate her lymph nodes. But, neither Dr. Love nor anyone else at
Iowa Dermatology took the time to make Erika aware of the proper
procedures. A few short sentences and a quick demonstration could have
been the deciding factor in Erika's fate, but Dr. Love made the decision to
not tell her and practically sealed her fate with his omission.
Perhaps what is most unsettling about the whole series of events that
ultimately led to Erika's premature death is that it could have been avoided
if Dr. Love had merely done every step in the process and concluded his
examination by palpating Erika's lymph nodes inches from her surgical site.
If this small, but crucial step, were taken, Erika would still be providing love
and support for her husband and children. Unfortunately, this is not the case.
Due to Dr. Love's negligent follow up care that spanned from 1999 to 2007,
Erika passed away from melanoma that spread to her lymph nodes and
finally to her liver.
Additionally, there are several other tests that should have been
performed to detect the metastasis of the melanoma. According to Rook's
28
Textbook of Dermatology, a sentinel node biopsy, chest X-ray, or blood tests
are routinely performed to check for metastasis. Rook's Textbook of
Dermatology vol. 2 Ch. 54.51 (Tony Burns et al, 8th ed., Wiley-Blackwell
2010). Judge Blane, in granting the Motions for Summary Judgment,
concluded that there are no genuine issues of material fact which a jury
should decide. Is such a conclusion consistent with the legal requirement
that Erika Herren be given every reasonable inference possible from the
factual record before the court. In this case, the record unequivocally
establishes that both Dr. Scupham and Dr. Love failed to timely diagnose the
malignant melanoma from the tissue specimens taken from the left side of
Erika's neck. One only has to look at the Mayo Clinic pathological
microscopic evaluation of those same tissue specimens to come to such a
conclusion. The record also demonstrates clearly that the primary lesion
was the lesion on the left side of Erika's neck. (See Mayo Records; App. pp.
281-282). Further, the record clearly establishes that the melanoma had
spread by the time of the diagnosis. (See records of Dr. Zlab (Iowa Clinic);
App. pp. 284-285). The last tissue removal from Erika's left neck occurred
on April 15, 1999. The margins were deemed to be clear by Dr. Scupham
meaning that there is no remaining tissue from that lesion or mole as of that
date. As such, the spead of that melanoma had already occurred by April 15,
29
1999. Even though Dr. Love consistently evaluated the location of the left
neck lesion by visual inspection, he never performed any further tests to
determine whether there had been any spread despite clinical
indications of that possibility. All of those undisputed facts, when giving
Erika every reasonable inference, generates a jury issue on whether Dr.
Love was negligent in his followup care. In all due respect to the lower
court, the absence of any documented treatment to that area does not
equate to the absence of negligence on the part of Dr. Love. A jury
should be allowed to decide whether he engaged in a continuim of
negligent care to Erika following his last biopsy of April 15,1999.
The negligent nature of this continuous treatment became apparent
after Erika began treating with the Mayo Clinic, which reviewed the tissue
specimens removed from her left neck area over the course of years she
treated with Iowa Dermatology and Dr. Love and determined that those
specimens were clearly indicative of malignant melanoma. (Dr. Love
Deposition Ex. 3; App. pp. 196-198). As a result, this melanoma was
diagnosable and curable as early as September 18, 1996. Id. In other words,
Iowa Dermatology and Dr. Love had twenty-six missed opportunities to
properly diagnose the lesion on Erika's left neck, and he failed. Tragically,
these missed opportunities would ultimately cost Erika her life.
30
b. The treatment of Erika's skin lesions was so related that it
constitutes one continuing wrong by both Iowa Dermatology
and Dr. Love
The second requirement for satisfying the continuum of negligent
treatment doctrine is that the treatment must be so related so as to constitute
one continuing wrong. See Langner, 533 N.W.2d at 522. In addressing this
prong of the continuum of negligent treatment doctrine, Plaintiff would
incorporate the arguments made in the immediately preceding subsections
herein. As stated above, from September 18, 1996 to September 6, 2007,
Erika would be personally seen by Iowa Dermatology and Dr. Love on
twenty-six (26) separate occasions for medical care focused on the
proper diagnosis and treatment of various moles and other skin lesions
on her body. (Depo of Dr. Love, pp. 51-80; App. pp. 132-139). Specifically,
the treatment that Erika received from Iowa Dermatology and Dr. Love on
each such occasion would include examination and treatment of her left
neck area. (Id.). Indeed, on six of those office visits tissue specimens were
biopsied from Erika's left neck area for microscopic evaluation. (Dr. Love
Deposition Ex. 1; App. pp. 163-194). However, the ongoing failure to
accurately diagnose the lesion on Erika's left neck as malignant melanoma
despite the consistent care and treatment she was receiving that was aimed
31
toward that end constitutes one continuing wrong that persisted for a period
of over ten years.
As a result, both prongs of the continuum of negligent treatment
doctrine have been satisfied and as such the statute of repose would not have
begun running until September 6, 2007 thus bringing all of Plaintiff s claims
as against Iowa Dermatology and Dr. Love within the six year repose period.
Therefore, all of Plaintiff s claims against Iowa Dermatology and Dr. Love
were timely filed under Iowa law. The tragedy of this case compels the
adoption of the doctrine known as the continuum of negligent care
which would preclude the application of an arbitrary statute of repose
against a vigilant patient who was clearly let down by her physicians.
ii.
The continuum of negligent care should apply to Pathology
Associates because they worked in conjunction with Iowa
Dermatology and Dr. Love to provide health care to Erika as one
team.
The gold standard for diagnosing malignant melanoma is to evaluate
tissue specimens from either a punch or excisional biopsy under the
microscope, In Erika's case, on six separate occasions, Dr. Love did either a
punch biopsy or an excisional biopsy of the mole on her left neck. Those
tissue specimens were harvested on:
32
• September 18,1996 - excisional biopsy evaluated
microscopically by Pathology Associates
• February 28,1998 - punch biopsy evaluated microscopically
by Dr. Charles Love on March 4, 1998
• September 4,1998 - excisional biopsy evaluated
microscopically by Pathology Associates
• April 1,1999 - excisional biopsy evaluated microscopically by
Pathology Associates
• April 9, 1999 - wide excisional biopsy evaluated
microscopically by Pathology Associates
• April 15,1999 - excisional biopsy evaluated microscopically
by Pathology Associates
On five of the six biopsies, Pathology Associates were asked to
provide the microscopic evaluation of the tissue specimens. Dr. Scupham is
the dermatopathologist from Pathology Associates who microscopically
evaluated the tissue specimens. Dr. Scupham himself concedes that both
he (Pathology Associates) and Dr. Love were part of the same medical
team for Erika. His testimony is telling on that point:
Q. How would you describe your relationship with Dr. Love's office
in the process of evaluating those tissue specimens that were
consistently removed from the left neck of Erika?
A. Well, you know, we try to—You know, we try to work together.
We try to make sure that the things that we're doing for the patient
fit together so that we can come up with a coherent treatment and
33
follow-up plan for the patient. I guess I don't know exactly what
you mean.
Q. Well, I think you answered the question. I mean, would you
consider yourself to be members of the same medical team?
A. Oh, absolutely.
Q. All right. And the goal that you would have for the patient is the
earliest diagnosis of a potential problem?
A. Absolutely.
Q. And that would be the same goal that Dr. Love would have?
A. Yes.
Q. And you're working together to try to accomplish that goal?
A. Uh-huh.
Q. True?
A. True.
(Scupham deposition, pp. 40-41; App. pp. 240-241)
While it is true that Pathology Associates did not remain actively
involved as a member of the medical team after 1999, it was still undeniable
a member of the team that provided a continuum of negligent care by failing
to diagnose the malignant melanoma at the earliest opportunity. By analogy,
a major league baseball team has a twenty-five player roster. Some of the
members of that team may go for stretches without playing in any games.
34
However, each player on the roster is still a member of the team. They win
or lose together as a team. Pathology Associates was integrally involved in
the key "games" of Erika's medical treatment—five microscopic
interpretations of tissue specimens from her left neck. It was an integral part
of the medical team which provided a continuum of negligent care to Erika,
negligent care which ended up taking her life at the young age of 37 years.
Just because Pathology Associates did not actively participate in the later
portions of Erika's treatment with Dr. Love's office should not insulate it
from winning or losing as part of the same medical team. The continuum of
medical care exception to the statue of repose legally holds Pathology
Associates responsible just as it does Dr. Love.
CONCLUSION
Erika was a vigilant patient who consistently followed up with regard
to her concerns about skin lesions which were present on her body—26
follow up visits over the course of almost eleven (11) years. She trusted her
doctors. She was never given any reason not to trust them. Yet unknown to
her, cancer was methodically growing, unabated, in her body. She had
absolutely no reason to be concerned about any potential legal action
because she had absolutely no reason to suspect that her doctors had let her
35
down and failed to diagnose the cancer which was growing in her body. The
statute of repose is a statue intended to prevent stale claims—this is not a
case involving a stale claim. Erika's unnecessary death is still all too fresh
in the hearts and minds ofher family. One exception was legislatively
written into the statute of repose, an exception which recognizes how
fundamentally unfair it would be to allow a doctor who negligently left a
foreign instrument in a patient's body to escape liability, given the difficult
challenge in discerning the fact that such an instrument was left behind after
surgery. Erika's case is very analogous. Dr. Love and Dr. Scupham left
inside Erika's body an undiagnosed cancer which was allowed to grow to
the point that it took her life. She had no reason to suspect it because she
had no symptoms. She had no reason to suspect it because she trusted her
team of medical providers. Her family timely pursued the claim on behalf
ofher estate once they became aware of the negligence of the medical team.
This Court has consistently left the door open for the recognition of the
continuum of negligent care exception and this is the case. Justice demands
it. Fairness demands it. Further, if every participant in this case could
candidly talk off the record, everyone would likely agree that under the facts
of this case, Todd Herren and his two children, Ryan and Brynn, deserve a
judicial remedy. Plaintiff would respectfully urge this Court to overrule the
36
determination ofthe district court in the ruling for the Motions for Summary
Judgment filed on behalf of both Defendants.
REQUEST FOR ORAL ARGUMENT
Fax: (515)331-3544
Email: firm@humphreylaw.com
OLSON LAW OFFICE, P.C.
Alan O. Olson
AINOOOO14073
3116 Ingersoll Avenue
Des Moines, Iowa 50312-3910
Ph: (515)271-9100
Fax (515) 271-8100
E-mail: lem@olson-law.net
ATTORNEYS FOR APPELLANTS
Dated:
37
tf/^/W
CERTIFICATE OF FILING
The undersigned attorney for Plaintiffs/Appellants hereby certifies
th
that on this 5 day of October, 2011, he filed (18) eighteen copies of this
Final Brief by delivering said copies to the Clerk of the Iowa Supreme
Court, Iowa Judicial Branch Building, 1111 East Court Avenue, Des
Moines, IA 50319.
ATTORNEY'S COST CERTIFICATE
The undersigned attorney for Plaintiffs/Appellants certifies that the
38
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing
instrument was served upon each of the attorneys of record of all parties to
the above-entitled cause by enclosing the same in an envelope addressed to
each such attorney at such attorney's address as disclosed by the pleadings of
record here in on the 5th day of October, 2011.
Steven Scharnberg
Finley, Alt, Smith
699 Walnut Street
1900 Hub Tower
Des Moines, IA 50309
ATTORNEYS FOR DEFENDANTS, IOWA DERMATOLOGY CLINIC
PLC AND DR. LOVE
Michael W. Ellwanger
Rawlings, Nieland, Killinger, Ellwanger, Jacobs, Mohrhauser & Nelson,
L.L.P.
522 4 Street, Suite 300
Sioux City, IA 51101
ATTORNEYS FOR DEFENDANT, IOWA PATHOLOGY ASSOCIATES,
PC
th
By: rjgj U.S. Mail
• Facsimile
£3 Hand Delivered • Overnight Courier
• Federal Express • Other
Signature: toLudt ItotoM
39
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Iowa R. App.
P. 6.903(1 )(g)(l) because this brief contains 7,831 words, excluding
the parts of the Brief exempted by Iowa R. App. P. 6.903(1 )(g)(l).
This brief complies with the typeface requirements of Iowa R. App. P.
6.903( 1 )(e) and the type style requirements of Iowa R. App. P.
6.903(1 )(f) because this brief has been prepared in a proportionally
spaced typeface using 14-point Times New^RcJman font in Microsoft
Word.
Des Moinpsflowk 50312
Ph: (5^5)-3^3510
Fax: (515)331-3544
Email :firm@humphreylaw.com
OLSON/LAW^OFjjtelE, P.C.
Alan O. Olson
AIN000014073
3116 Ingersoll Avenue
Des Moines, Iowa 50312-3910
Ph: (515)271-9100
Fax (515) 271-8100
E-mail: lem@olson-law.net
ATTORNEYS FOR APPELLANTS
Dated:
40
&/'f/#//