                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0045
                           Filed December 20, 2017


ALBERT CARTER,
    Plaintiff-Appellant,

vs.

GENESIS HEALTH SYSTEM d/b/a GENESIS MEDICAL CENTER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.



      Albert Carter appeals the district court’s ruling granting summary judgment

in favor of Genesis Health System d/b/a Genesis Medical Center on his medical

malpractice action. AFFIRMED.




      William J. Bribriesco of Bribriesco Law Firm, P.L.L.C., Bettendorf, for

appellant.

      Diane M. Reinsch of Lane & Waterman L.L.P., Davenport, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       Albert Carter sued Genesis Medical Center for negligence in connection

with a nurse’s insertion of an indwelling catheter and the subsequent erosion of his

penile implant. Genesis moved for summary judgment. Carter conceded the

motion was appropriate on all but one of his claims: whether the nurse’s failure to

consult a physician about the use of a condom catheter instead of an indwelling

catheter amounted to negligence. The district court granted Genesis’ motion on

that claim after concluding Carter lacked a causation expert. See Kennis v. Mercy

Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992) (noting in a medical

malpractice action, a “plaintiff must show evidence which establishes the

applicable standard of care, demonstrate this standard has been violated, and

develop a causal relationship between the violation and the alleged harm”); see

also Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (“Expert

testimony is nearly always required to establish each of these elements . . . .

[P]roximate cause, like the other elements, cannot be based upon mere

speculation.”). Carter appealed.

       “In reviewing a summary judgment in a medical malpractice action, the ‘task

is to determine whether any evidence in the summary judgment record enables

plaintiffs to establish the applicable standards of care, and defendant’s breach of

those standards.’”   Kennis, 491 N.W.2d at 164 (citation omitted).        Summary

judgment is appropriate “when the party can demonstrate that the proof of the other

party is deficient as to a material element of that party’s case.” Thompson v.

Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000); see also Welte

v. Bello, 482 N.W.2d 437, 440 (Iowa 1992) (“If expert testimony is required to
                                         3


establish general negligence or the foundational facts and expert testimony is

unavailable, then summary judgment is appropriate.”); Oswald v. LeGrand, 453

N.W.2d 634, 635 (Iowa 1990) (stating “where plaintiffs are limited in the

presentation of expert testimony, the issue becomes not whether there

was negligence in the actions of the defendant but whether there was evidence

upon which liability could be found”).

       Carter does not argue a causation expert was unnecessary. See Kennis

491 N.W.2d at 165 (stating negligence could be established in three ways,

including “through expert testimony” or “through evidence showing the [healthcare

professional’s] lack of care so obvious as to be within comprehension of a”

layperson). To the contrary, he named and proffered the opinions of two experts.

In his view, these experts generated an issue of material fact on the element of

causation. Carter points to a report of his nurse expert, who opined “there was a

breach in the standard of care when the patient condition and the potential for

likelihood of penile implant complication were not addressed by the nursing and

physician staff of Genesis Medical Center.” He also cites the same expert’s

deposition testimony opining the standard of care required the nurse, who inserted

the indwelling catheter, to “have [a] conversation with the physician” about the use

of a condom catheter instead of an indwelling catheter. Finally, he refers to the

deposition testimony of his physician expert, who opined, “[I]f [Carter] had not had

an indwelling catheter, he probably would not have had a penile—or an erosion of

his prosthesis, so in that sense, it was probably a contributing cause.” Based on

these portions of the summary judgment record, Carter contends “an inference can

be drawn that if a discussion had occurred between [the] nurse . . . and the ordering
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physician regarding condom v. indwelling catheter; the ordering physician would

have used a condom catheter.”

      The district court concluded this expert testimony failed to establish

causation. The court conceded Carter had “expert testimony that [the nurse]

breached the standard of care in not questioning the order” but stated there was

no opinion that “the failure to question the order caused the penile erosion.” The

court explained:

      Plaintiff’s claim fails because a jury would have to infer that when [the
      nurse] asked the ordering physician if a condom catheter was
      required, that the physician would have said yes and changed her
      order. If the ordering physician does not change the order, then [the
      nurse’s] failure to question the order would not have caused
      Plaintiff’s injury, because an indwelling catheter would have been
      placed in spite of [the nurse] questioning the order. In other words,
      [the physician’s] testimony on causation relates to the placement of
      an indwelling catheter and not to the factual circumstance of [the
      nurse’s] failure to ask the ordering physician if a condom catheter
      should be used.

      The district court did not err in reaching this conclusion. See McKee v. Isle

of Capri Casinos, Inc., 864 N.W.2d 518, 525 (Iowa 2015) (setting forth standard of

review). Without expert testimony that the claimed breach of the standard of care

was the cause of his harm, Carter could not establish a prima facie case of medical

negligence. See Oswald, 453 N.W.2d at 635.

      We affirm the district court’s summary judgment ruling in favor of Genesis.

      AFFIRMED.
