               IN THE SUPREME COURT OF IOWA
                           No. 137 / 06-0243

                         Filed February 15, 2008


BETTY D. SCHROEDER, as Executor
of the Estate of HOMER SCHROEDER,
and BETTY D. SCHROEDER, Individually,

      Appellants,

vs.

SAADI ALBAGHDADI, M.D.,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.



      A physician seeks further review of a court of appeals decision

granting the plaintiff a new trial.    COURT OF APPEALS DECISION

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


      William J. Bribriesco and Daniel D. Bernstein of William J.

Bribriesco & Associates, Bettendorf, for appellants.



      Jack L. Brooks of Brooks & Trinrud, P.C., Rock Island, Illinois, for

appellee.
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WIGGINS, Justice.

      A decedent’s wife, individually and as executor of her husband’s

estate, received an adverse verdict in a medical negligence action. The

wife appealed the verdict claiming the district court failed to submit all

the specifications of negligence she requested and erroneously instructed

the jury in a way that impermissibly commented on the evidence so as to

interfere with the jury’s fact-finding duties. The court of appeals agreed

with the wife, reversed the judgment of the district court, and granted a

new trial.    On further review, we find the district court properly

instructed the jury on the specifications of negligence supported by the

evidence.    We also find the district court properly designed the

instructions to reflect the standard of care the physician owed his patient

without interfering with the jury’s fact-finding duties.    Therefore, we

vacate the decision of the court of appeals and affirm the judgment of the

district court.

      I. Background Facts and Proceedings.

      In July 2001 Homer Schroeder underwent open-heart surgery for a

blockage of three coronary arteries.      Two weeks after his surgery, an

ambulance took Homer to Mercy Medical Center in Clinton.         His chief

complaint was increasing shortness of breath. Homer also complained of

nausea and anxiety.          The emergency room physician, Dr. Randall

Hinrichs, treated Homer.       Hinrichs conducted a physical examination

and ordered tests to measure the troponin and CPKMB enzyme levels in

Homer’s blood. Elevated levels of these enzymes would indicate an injury

to Homer’s heart. Hinrichs also ordered a full blood panel, a chest x-ray,

an electrocardiogram (EKG), and an INR test, which measures the ability

of blood to clot properly.
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      The blood tests revealed Homer’s potassium, INR, and troponin

levels were outside their normal ranges. The radiologist interpreted the

chest x-ray to be abnormal with fluid in the lungs and cardiomegaly, an

enlargement of the heart.     A computer interpretation of the EKG also

noted some abnormality.      Hinrichs ordered a second EKG, which also

indicated abnormalities. Hinrichs then compared this EKG to one taken

prior to Homer’s open-heart surgery and noted additional changes.

      Hinrichs expressed to Homer’s family, including his wife Betty,

that he felt Homer should be admitted to the hospital. However, as an

emergency room physician, Hinrichs did not have admitting privileges.

      Hinrichs telephoned Dr. Saadi Albaghdadi, the on-call cardiologist.

Albaghdadi was part of a cardiac group that included Homer’s regular

treating cardiologist, Dr. Qaiser Rasheed. Albaghdadi had the authority

to admit patients.

      There is a factual dispute between Hinrichs and Albaghdadi

regarding how many telephone conversations took place and the

substance of the conversations. Hinrichs testified he called Albaghdadi

at home and told him about Homer’s abnormal potassium, INR, and

troponin levels.     He also testified he told Albaghdadi about Homer’s

symptoms and asked that he admit Homer to the hospital. According to

Hinrichs, Albaghdadi requested Homer’s EKGs be faxed to his home

before he would decide whether to admit Homer. He faxed a prebypass

EKG and the July 17 EKG to Albaghdadi. According to Hinrichs, after he

faxed the EKGs, he spoke with Albaghdadi a second time.

      Hinrichs testified Albaghdadi convinced him Homer’s troponin and

EKG results were due to his recent bypass surgery and that Homer

should be released and seen by Rasheed in the next day or two.

According to Hinrichs, Albaghdadi had him stop Homer’s Coumadin in
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order to reduce his elevated INR and prescribed oral vitamin K. Hinrichs

recorded his interpretation of this conversation in Homer’s medical

records.

      Albaghdadi testified he never requested Homer’s EKGs, rather they

were sitting in his fax machine when he arrived home on the evening of

July 17. Albaghdadi testified Hinrichs only requested an interpretation

of Homer’s EKGs.    Albaghdadi testified this request was an every day

practice, and Hinrichs had requested him to interpret EKGs without

examining patients in the past.

      Albaghdadi testified Hinrichs’ phone call followed the faxed EKGs,

and during their only conversation, Hinrichs explained the abnormal

EKGs and Homer’s history, including his recent bypass surgery.       He

further testified Hinrichs never told him about the abnormal potassium,

troponin, or INR levels.     Albaghdadi also testified Hinrichs never

requested Homer be seen or admitted.

      Albaghdadi testified he only interpreted the EKGs and told

Hinrichs they showed postoperative changes and a pacemaker rhythm.

Albaghdadi testified he did not think Homer needed to be hospitalized

based on the information relayed by Hinrichs; however, had Hinrichs

reported the elevated INR and potassium he would have admitted Homer

immediately.

      Hinrichs discharged Homer from the emergency room, but Homer

returned to the hospital by ambulance the next morning. While Rasheed

examined Homer, he went into cardiorespiratory arrest.    He died later

that afternoon.

      Betty, individually and as the executor of Homer’s estate, brought

an action against Hinrichs and Albaghdadi for medical negligence. She
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settled her claims against Hinrichs prior to trial. The trial commenced

with Albaghdadi as the only defendant.

      Betty presented two expert witnesses at the trial to establish the

standard of care Albaghdadi should have used when treating Homer.

Both of Betty’s experts opined if Hinrichs’ version of the July 17 events

were correct, Albaghdadi breached the standard of care by failing to (1)

properly interpret the EKGs; (2) examine Homer in the emergency room;

(3) properly diagnose Homer in the emergency room; (4) direct that

Homer be admitted to the hospital as an inpatient; and (5) properly treat

Homer.

      One of Betty’s experts was asked what standard of care Albaghdadi

should have used when caring for Homer if Albaghdadi’s version of the

July 17 events was true.     Under that assumption, the expert opined

Albaghdadi was only required to properly interpret the EKGs. Neither of

Betty’s experts testified Albaghdadi fell below the standard of care if

Albaghdadi’s version was true.

      Albaghdadi’s expert testified, assuming Albaghdadi’s version was

true, the only duty Albaghdadi owed to Homer was to properly interpret

the EKGs.    He went on to testify Albaghdadi properly interpreted the

EKGs, and therefore met the applicable standard of care. The expert did

state if Hinrichs told Albaghdadi about Homer’s elevated potassium level,

he should have admitted Homer to the hospital.

      Throughout the trial, the court struggled with the issue of how to

instruct the jury because of the factual dispute regarding the July 17

events. At the pretrial conference Betty’s counsel requested the court to

find a patient-physician relationship existed and Albaghdadi owed Homer

a duty of care as a matter of law. The court reserved its ruling on this

request until the close of the evidence. At the conclusion of the evidence,
                                     6

Betty changed her position and argued the question of whether a patient-

physician relationship existed, and whether Albaghdadi owed Homer a

duty of care, should be a fact question for the jury.

      During the arguments regarding a directed verdict, Albaghdadi

conceded that he had a patient-physician relationship with Homer.

Albaghdadi argued the only question for the jury to decide was the extent

of the duty he owed Homer in light of the expert testimony and the

conflict of his testimony with that of Hinrichs.

      To resolve the issue the court decided to use two verdict forms.

The jury was to use verdict form one if it found that Hinrichs only

requested Albaghdadi to interpret Homer’s EKGs, and Hinrichs did not

tell Albaghdadi of the elevated potassium level. Verdict form one only

allowed the jury to find Albaghdadi negligent for failing to properly

interpret the EKGs.

      The jury was to use verdict form two if it found Hinrichs sought

admission of Homer to the hospital and told Albaghdadi of the elevated

potassium level. Verdict form two allowed the jury to find Albaghdadi

negligent for failing to (1) properly interpret the EKGs; (2) examine Homer

in the emergency room; (3) properly diagnose Homer in the emergency

room; (4) direct that Homer be admitted to the hospital as an inpatient;

or (5) properly treat Homer.

      Betty’s counsel objected to the instructions claiming the court

should not use two verdict forms because the record established as a

matter of law a patient-physician relationship existed and Albaghdadi

owed Homer a duty of care.      He further argued only one verdict form

should be used that listed all the acts of negligence alleged by Betty’s

experts, and then the lawyers could argue the extent of Albaghdadi’s

duty based on the evidence.      He also requested the court to consider
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using an interrogatory in the verdict form asking the jury: “Has a

physician-patient relationship been established, yes or no. If yes, go to

the issues of fault.”

      The court overruled this objection.        Then Albaghdadi moved

in limine to prevent Betty’s counsel from arguing in closing arguments

that Albaghdadi’s on-call status created a duty greater than that

established by the expert testimony. Betty’s counsel stated he believed

Albaghdadi owed a “full-fledge duty” to Homer because of Albaghdadi’s

on-call status, but in light of the court’s ruling on the instructions,

Albaghdadi’s    motion   was   probably   correct.   The   court   granted

Albaghdadi’s motion in limine.

      The jury returned a verdict by using verdict form one. The first

question on verdict form one asked: “Was the defendant negligent by

failing to properly interpret the electrocardiograms of Homer Schroeder

on July 17, 2001?” The jury answered this question in the negative. By

using verdict form one, the jury found Hinrichs only requested

Albaghdadi to give an interpretation of Homer’s EKGs and did not tell

Albaghdadi of the elevated potassium level.      In other words, the jury

determined Albaghdadi’s version of the facts was correct. By answering

the first question in the negative, the jury determined Albaghdadi

properly interpreted the EKGs. The district court entered a judgment in

favor of Albaghdadi.

      Betty appealed. We transferred the case to the court of appeals.

The court of appeals reversed the judgment and remanded for a new

trial. Albaghdadi asked for further review, which we granted.

      II. Issues.

      Betty contends the court improperly instructed the jury for two

reasons.   First, she argues the court should have submitted all the
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specifications of negligence instructed upon for the jury to consider,

including an additional specification that Albaghdadi breached his duty

of care by failing to ask Hinrichs questions regarding Homer. Second,

she argues the court’s instructions improperly interfered with the jury’s

fact-finding duties by impermissibly commenting on the evidence.

      Betty’s counsel preserved error on the issue of whether the court

should have submitted all the specifications of negligence instructed

upon for the jury to consider and that the instructions improperly

interfered with the jury’s fact-finding duties. However, her counsel did

not object to the instructions for not including a specification that

Albaghdadi was negligent for failing to ask Hinrichs questions. A party is

required to request an additional instruction designed to remedy a

perceived defect when the party claims an instruction does not

completely state the law.    State v. Smith, 240 N.W.2d 693, 695 (Iowa

1976).   Failure to do so precludes us from determining the issue on

appeal. Poulsen v. Russell, 300 N.W.2d 289, 294 (Iowa 1981). Therefore,

we will not consider Betty’s claim that the court failed to include a

specification of negligence that Albaghdadi was negligent for failing to

ask Hinrichs questions.

      III. Analysis.

      The trial court has the obligation to instruct the jury on the law

governing the issues it submits.    Harrington v. Fortman, 233 Iowa 92,

100–01, 8 N.W.2d 713, 717 (1943); Jakeway v. Allen, 226 Iowa 13, 18,

282 N.W. 374, 377 (1938). For each act of negligence the court submits

to the jury, it must tell the jury the legal duty owed by the defendant. Id.

We look to legislative enactments, judicial decisions, and general legal

principles to establish a legal duty or standard of care.    Van Essen v.

McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999).
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      Albaghdadi holds himself out as a specialist in cardiology.

Albaghdadi conceded that a patient-physician relationship existed

between himself and Homer. We have established the standard of care a

specialist must use when treating a patient. McGulpin v. Bessmer, 241

Iowa 1119, 1132, 43 N.W.2d 121, 128 (1950). In McGulpin, we expressed

the standard of care as follows:

      A physician or surgeon who is held out as a specialist is
      required to exercise that degree of skill and care ordinarily
      used by similar specialists in like circumstances, having
      regard to the existing state of knowledge in medicine and
      surgery, not merely the average skill and care of a general
      practitioner.

Id. The failure of a physician to follow this standard of care constitutes

negligence. Id.

      In a medical negligence case such as this, expert testimony is

required to establish the standard of care and a breach thereof. Sinkey

v. Surgical Assocs., 186 N.W.2d 658, 660 (Iowa 1971). At the close of the

evidence, the court must instruct the jury on the defendant’s duty when

the evidence establishes that duty by a particular set of facts the jury

may reasonably find to exist. State v. Gough, 187 Iowa 363, 366, 174

N.W. 279, 280 (1919).

      The expert testimony only generated an issue for the jury to decide

whether Albaghdadi was negligent for failing to (1) properly interpret the

EKGs; (2) examine Homer in the emergency room; (3) properly diagnose

Homer in the emergency room; (4) direct that Homer be admitted to the

hospital as an inpatient; or (5) properly treat Homer, if the jury found

Hinrichs’ version of the conversations with Albaghdadi took place. On

the other hand, if the jury found Albaghdadi’s version took place, the

only issue generated by the expert testimony for the jury to decide was
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whether Albaghdadi was negligent for failing to properly interpret the

EKGs.

      At trial and on appeal, Betty’s counsel contends he had a right to

argue Albaghdadi was negligent for failing to (1) properly interpret the

EKGs; (2) examine Homer in the emergency room; (3) properly diagnose

Homer in the emergency room; (4) direct that Homer be admitted to the

hospital as an inpatient; or (5) properly treat Homer, solely on the basis

that Albaghdadi was the on-call cardiologist the evening of July 17. We

disagree. Betty presented no expert testimony stating Albaghdadi was

negligent in those respects solely because he was the on-call cardiologist.

Consequently, the expert testimony did not establish such a duty

existed. Therefore, Betty could not argue the case in that manner.

      To prevent Betty’s counsel from arguing the case in a manner not

supported by the expert testimony, the court chose to use two verdict

forms. The jury was to use the first verdict form if it found Hinrichs’

version of the events took place and the second verdict form if it found

Albaghdadi’s version occurred.

      Betty contends by using two verdict forms, the court impermissibly

commented on the evidence. Instructions by the court that comment “on

potential factual scenarios in which a standard of care may or may not

have been adhered to” are impermissible comments on the evidence.

Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993).          However,

instructions designed to determine a physician’s duty of care do not

constitute an impermissible comment on the evidence. Id.

      The fighting factual issue in this case was the substance of the

communication between Albaghdadi and Hinrichs. Betty tried this case

on the theory that the jury would believe Hinrichs’ version of the events.

According to her expert’s testimony, the jury could have found
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Albaghdadi negligent for the five specifications to which they testified if

Hinrichs’ version of the conversation took place.

      Albaghdadi tried this case on the theory that the jury would believe

his version of the events.   His experts insisted Albaghdadi’s only duty

was to read the EKGs; thus, the jury could only find him negligent if he

read the EKGs in a manner that fell below the standard of care.

      Betty and Albaghdadi based their theories of negligence on two

different sets of facts that were mutually exclusive. The parties tried the

case by giving the jury only two alternative ways to decide it. The record

did not allow the jury to incorporate parts of each side’s expert testimony

in deciding this case. The court did not give the verdict forms to the jury

as potential factual scenarios in which a standard of care may or may

not have been adhered to by Albaghdadi. The verdict forms provided the

jury with a road map to determine the standard of care Albaghdadi owed

Homer consistent with the jury’s fact-finding.      The verdict forms were

also consistent with the manner in which the parties tried the case.

      Therefore, we find the court properly designed the two verdict

forms to allow the jury to determine the applicable standard of care once

it decided the disputed facts. Although there may have been a better way

for the court to instruct the jury, such as using special interrogatories

rather than verdict forms, the court did not impermissibly comment on

the evidence by using these forms.

      IV. Disposition.

      Because the district court properly instructed the jury on the

specifications of negligence supported by the evidence and designed the

instructions to determine the standard of care Albaghdadi owed Homer,
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we vacate the decision of the court of appeals and affirm the judgment of

the district court.

      COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.
