                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1679
                           Filed September 13, 2017


ESTATE OF BRANDY NICOLE STOUTENBERG, by its Administrator,
JESSICA STOUTENBERG, EMINA MARIE BRKOVIC, by Estate of Brandy
Stoutenberg, by its Administrator Jessica Stoutenberg, and
DEANNA MARIE MCGILLAN,
      Plaintiffs-Appellants,

vs.

UNITED ANESTHESIA & PAIN CONTROL, P.C., IOWA
HEALTH-DES MOINES; CENTRAL IOWA HOSPITAL CORPORATION;
IOWA HEALTH PHYSICIANS; IOWA HEALTH PHYSICIANS AND CLINICS;
IOWA HEALTH SYSTEM; CENTRAL IOWA HEALTH SYSTEM; and
IOWA HEALTH SYSTEM HOSPITAL CORPORATION,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Plaintiff appeals the district court’s denial of its second motion to amend

and the denial of a motion to continue summary judgment. AFFIRMED.




      Marc S. Harding of Harding Law Office, Des Moines, for appellant.

      Loree A. Nelson, Barry G. Vermeer, and Annmarie M. Kelly of Gislason &

Hunter, L.L.P., Des Moines, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

      The estate of Brandy Stoutenberg, and others, appeal the district court’s

denial of a continuance and motion to amend. We find the district court did not

abuse its discretion in denying the motion to amend and in refusing to grant a

continuance. We affirm the district court.

   I. Background Facts and Proceedings

      Stoutenberg died September 11, 2010, at the age of twenty four, due to

mixed-drug intoxication.   The plaintiffs initiated a wrongful death lawsuit on

August 29, 2012. The suit alleged Dr. Daniel J. Baldi, D.O., prescribed a lethal

combination of pain medication. The petition also alleges Dr. Baldi was acting as

an agent of United Anesthesia & Pain Control, P.C. (United), and therefore,

United was liable for damages under the doctrine of repondeat superior. The

petition listed several other corporations as defendants, including Iowa Health

Physicians (Iowa Physician), but did not specifically allege vicarious liability

claims against them.

      The case was stayed due to criminal charges relating to Dr. Baldi’s care of

Stoutenberg. After Dr. Baldi was acquitted, an order was entered on March 16,

2015, setting the wrongful death trial for October 24, 2016. Discovery began,

and on April 11 the plaintiff’s expert, Gordon A. Beardwood, M.D., was deposed.

During the deposition, Dr. Beardwood opined Dr. Baldi’s prescriptions had not

caused Stoutenberg’s death.       Dr. Beardwood believed the drugs Effexor,

Adderall, and Xanax caused Stoutenberg’s death.       The drugs had not been

prescribed by Dr. Baldi but by Shehzad Kamran, M.D., a psychiatrist working for

Iowa Physician.
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        On June 2, the defendants filed a motion for summary judgment.

Plaintiffs then moved, on June 22, to amend their petition to substitute a vicarious

liability claim for the actions of Dr. Kamran in place of the actions of Dr. Baldi.

The plaintiffs did not seek to amend the petition to include Dr. Kamran as a

defendant.    The plaintiffs also requested a continuance in order to conduct

further discovery. On September 9, the district court denied the plaintiffs’ motion

to amend and granted the defendants’ motion for summary judgment.               The

plaintiffs appeal.

   II. Standard of Review

       Leave to amend pleadings should be given freely when justice so

requires. Iowa R. Civ. P. 1.402(4). When reviewing the denial of a motion for

leave to amend, we examine the decision of the district court for an abuse of

discretion. See Porter v. Good Eavespouting, 505 N.W.2d 178, 180 (Iowa 1993).

Similarly, a district court’s ruling on a motion to continue summary judgment to

allow for additional discovery is reviewed for an abuse of discretion. Kulish v.

Ellsworth, 566 N.W.2d 885, 889 (Iowa 1997)

   III. Motion to Amend

       The plaintiffs sought to amend their motion to replace the actions and

prescriptions of Dr. Baldi with the actions and prescriptions of Dr. Kamran after

the statute of limitations had expired. Our supreme court has held amendments

should be generally allowed “although an amendment is not permissible which

will substantially change the issue.” Meincke v. Nw. Bank & Trust Co., 756

N.W.2d 223, 229 (Iowa 2008) (quoting M-Z Enters., Inc. v. Hawkeye–Sec. Ins.

Co., 318 N.W.2d 408, 411 (Iowa 1982)). The plaintiffs did not seek to add Dr.
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Kamran and instead pursued only a claim of vicarious liability against Dr.

Kamran’s employer, Iowa Physician, who had been included as a defendant in

the initial petition.

        The district court found the amendment would “add an entirely new claim,

one that substantially changes the issues in the case.” The plaintiffs claim the

issue is not substantially different as it is a still a claim of vicarious liability

regarding malpractice in prescribing drugs. We agree with the district court. The

district court properly analogized:

        The attempted amendment would be the equivalent of a plaintiff
        who has sued the owner of a car on the basis of the owner’s
        responsibility for an accident involving a driver operating the
        owner’s car with the owner’s permission, seeking to change the
        basis of the claim to a completely different accident involving a
        different driver and seeking to do so only after the owner had
        completed its investigation and discovery based on the originally
        alleged accident.

        While the amendment would not change the type of claim, vicarious

liability relating to improperly prescribed drugs, the plaintiffs’ attempted

amendment seeks to change the specific actions, actors, and cause of death. In

other words, the amendment would substantially change the specific issues

involved in the litigation.   We affirm the district court and find no abuse of

discretion.

    IV. Continuance

        The plaintiffs filed a resistance to the defendants’ motion for summary

judgment. In the resistance the plaintiffs claimed a continuance on the motion for

summary judgment was needed in order to determine essential facts and finish

discovery. The plaintiffs properly submitted an affidavit alleging a lack of “facts
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essential to justify the opposition” and asking the court to “refuse the application

for judgment or [ ] order a continuance to permit . . . discovery.” See Iowa R. Civ.

P. 1.981.

       The plaintiffs requested a continuance to obtain more information on the

defendants’ procedures, policies, and conduct in overseeing prescriptions.

However, when “a controversy raises legal, not factual, issues, there is little need

for further discovery.” Good v. Tyson Foods, Inc., 756 N.W.2d 42, 47 (Iowa Ct.

App. 2008).    We determine the motion for summary judgment was properly

granted.    No amount of discovery could remedy the legal defects in the

unmodified petition. Without expert testimony implicating Dr. Baldi, the plaintiffs

could not establish a prima facie case, and therefore, the controversy raised only

legal issues. Therefore, further discovery was unwarranted and the district court

did not abuse its discretion by denying a continuance.

       AFFIRMED.
