                     IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0490
                            Filed February 11, 2015

JANE DOE,
     Plaintiff-Appellant,

vs.

JOHN ROE, M.D., MEDICAL
ANESTHESIA ASSOCIATES, P.C.,
PHYSICIAN PAIN CONSULTANTS, P.C.,
and JENNIE EDMUNDSON ANESTHESIA
SERVICES, P.C.,
      Defendants-Appellees.
________________________________________________________________

       Appeal from the Iowa District Court for Pottawattamie County, James

Heckerman, Judge.


       Plaintiff appeals an adverse grant of summary judgment. AFFIRMED.


       Randall J. Shanks and Emily A. Shanks of Shanks Law Firm, Council

Bluffs, for appellant.

       Frederick T. Harris and Eric G. Hoch of Finley, Alt, Smith, Scharnberg,

Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee John Roe, M.D.

       Patrick G. Vipond and William R. Settles of Lamson, Dugan & Murray,

L.L.P., Omaha, Nebraska, for appellees Medical Anesthesia Associates, P.C.;

Physician Pain Consultants, P.C.; and Jennie Edmundson Anesthesia Services,

P.C.

       Heard by Vogel, P.J., and Doyle and McDonald, JJ.
                                            2



MCDONALD, J.

       This is a battery and medical negligence case in which plaintiff Jane Doe

alleges Dr. John Roe may have taken advantage of her to satisfy his

“perversions” while Jane Doe was sedated during a medical procedure. Her

case is based on conjecture, speculation, and innuendo.          The district court

granted summary judgment in favor of Dr. Roe and his employer. Jane Doe

timely filed this appeal.

                                            I.

       Dr. Roe is a licensed anesthesiologist specializing in pain management

employed by Medical Anesthesia Associates P.C., doing business as Physician

Pain Consultants, P.C., and Jennie Edmundson Anesthesia Services, P.C.

(hereinafter “MAA”).

       Jane Doe suffered a back injury in 2007 and underwent surgery for the

same. She treated with Dr. Roe for pain management on several occasions in

January, February, and March 2010, presenting with back pain from two work-

related incidents. On April 6, 2010, Dr. Roe treated Jane Doe in his office. The

district court described that visit as follows:

               Plaintiff claims Dr. Roe told her that her insurance company
       will not cover any more injections. She asserts Dr. Roe offered to
       continue treating her at his office, and not the outpatient clinic, so
       he could provide her the care free of charge.
               Plaintiff contends Dr. Roe scheduled an appointment to see
       her at his office on April 6, 2010, at 10 a.m. She claims when she
       arrived at Dr. Roe’s office, it was not open and no staff was
       present. Dr. Roe arrived shortly thereafter and escorted Plaintiff
       into the waiting room, where he explained the trigger-point injection
       procedure to her. The parties dispute what information Dr. Roe
       provided Plaintiff about the procedure. Plaintiff claims Dr. Roe told
                                         3



       her that she would be hooked up to an IV, but would not be sedated
       for the procedure.
               Plaintiff and Dr. Roe then went into an exam room so he
       could perform the procedure. The parties dispute what events
       happened next. Plaintiff claims Dr. Roe asked her to lie on her
       stomach so he could inject the medicine in her back. Plaintiff
       contends Dr. Roe did not use any devices to monitor her condition
       during the procedure. That is the last thing Plaintiff remembers.
       She asserts when she came to, she was lying on her back, groggy,
       dazed and alone in the examination room. As she was regaining
       her senses, Plaintiff noticed a “white sticky substance” on her face.
       At that time, Dr. Roe came back into the exam room and wiped her
       face off. Dr. Roe told her the substance was the medication used
       in her injections. Dr. Roe then escorted Plaintiff to the office door
       and allowed her to drive home in a groggy and dazed condition.
               Based on these circumstances, Jane believes that Dr. Roe
       committed acts of sexual misconduct towards her.

       Jane Doe brought suit against Dr. Roe and MAA. She asserted claims for

breach of fiduciary duty, battery, medical negligence, and intentional infliction of

emotional distress against Dr. Roe.      She asserted a claim against MAA for

negligent supervision and retention of Dr. Roe. Dr. Roe moved to bifurcate the

trial on the grounds that the case involved two classes of claims and that the

claims against Dr. Roe’s employer could not be tried without the introduction of

inadmissible and unfairly prejudicial evidence in the case against Dr. Roe. The

district court granted the motion.     Dr. Roe and MAA moved for summary

judgment as to all counts. In Jane Doe’s resistance to the motion for summary

judgment, she dismissed her claim for intentional infliction of emotional distress.

The district court granted summary judgment in favor of Dr. Roe and MAA as to

all other counts.
                                         4



                                        II.

      We review the district court’s grant of summary judgment for corrections of

errors at law. See Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 500

(Iowa 2013).    Summary judgment should be granted only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.

P. 1.981(3). The court views the summary judgment record in the light most

favorable to the party resisting the motion for summary judgment and “indulge[s]

in every legitimate inference that the evidence will bear in an effort to ascertain

the existence” of a genuine issue of material fact. See Crippen v. City of Cedar

Rapids, 618 N.W.2d 562, 565 (Iowa 2000). If the summary judgment record

shows that the “resisting party has no evidence to factually support an outcome

determinative element of that party’s claim, the moving party will prevail on

summary judgment.” Wilson v. Darr, 553 N.W.2d 579, 582 (Iowa 1996). In

addition, summary judgment is correctly granted where the only issue to be

decided is what legal consequences follow from otherwise undisputed facts. See

Emmet Cnty. State Bank v. Reutter, 439 N.W.2d 651, 653 (Iowa 1989).

                                        III.

                                        A.

      Iowa law recognizes the tort of battery as defined by the Restatement

(Second) of Torts. See Nelson v. Winnebago Indus. Inc., 619 N.W.2d 385, 388

(Iowa 2000) (citing Restatement (Second) of Torts §§ 13, 18 (1965)).           The
                                        5



Restatement defines battery in two ways: harmful contact or offensive contact.

The first alternative requires “a physical impairment of the condition of another’s

body, or physical pain or illness.” Id. Under the second alternative, the plaintiff

must establish the following: (1) the tortfeasor intended to cause harmful or

offensive contact to another or an imminent apprehension of such contact; and

(2) an offensive contact with the other directly or indirectly resulted. See id. at

388–89. “[B]odily contact is offensive if it offends a reasonable sense of personal

dignity.” Id. at 389. Medical battery is a derivative of the second alternative.

See Moser v. Stallings, 387 N.W.2d 599, 601 (Iowa 1986). A claim for medical

battery “may lie when a patient consents to one type of treatment and the

physician intentionally deviates from the consent and performs a substantially

different treatment.” Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 361

(Iowa 1987).

      On appeal, Jane Doe casts her claim as a medical battery claim and

argues the district court erred in dismissing her medical battery claim.       The

defendants argue Jane Doe failed to preserve error on the issue.         Our error

preservation rules are not legal bramble bush that serve no purpose other than

ensnaring unwitting litigants.   See State v. Tidwell, No. 13–0180, 2013 WL

6405367, at *2 (Iowa Ct. App. Dec. 5, 2013). They are statutorily and functionally

required because the court of appeals is a court for the correction of error. See

Iowa Code § 602.5103(1) (2013). If a litigant fails to present an issue to the

district court and obtain a ruling on the same, it cannot be said that we are

correcting error.   Our error preservation rules preserve judicial resources by
                                         6



allowing the district court the first opportunity to address an issue and correct any

error. Finally, our error preservation rules enhance vertical judicial comity. It

would be unfair to fault a district court on an issue it never had the opportunity to

consider. See Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 28 (Iowa

2005); DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). Thus, under our error

preservation rules, an issue must ordinarily be raised in and decided by the

district court before we will address it on appeal. See Stammeyer v. Div. of

Narcotics Enforcement of Iowa Dep’t. of Pub. Safety, 721 N.W.2d 541, 548 (Iowa

2006).

         Jane Doe’s medical battery theory is newly crafted and not properly

presented for appellate review.     Jane Doe never pleaded a claim of medical

battery in the district court. She never sought leave to amend her petition to

assert a claim of medical battery. In her resistance to summary judgment, Jane

Doe never argued medical battery at any point during the summary judgment

proceedings. She did not plead or present any evidence that Dr. Roe performed

an alternative or substantially different medical treatment to which she did not

consent.    See Moser, 387 N.W.2d at 601-02.         The district court’s summary

judgment ruling was limited to the issue of whether there was an offensive

contact and not whether there was a triable issue of fact on whether the doctor

performed a procedure to which Doe did not consent. Jane Doe did not move to

enlarge or amend the district court’s findings and conclusions. We thus conclude

Jane Doe has not preserved error on this issue, and we need not address Jane
                                          7



Doe’s argument to the extent she characterizes her claim as a medical battery

claim.

         With respect to the battery claim actually pleaded in the petition and

presented to the district court—offensive touching—we conclude there is no

“genuine” issue for trial. See Parish v. Jumpking, Inc., 719 N.W.2d 540, 543

(Iowa 2006) (“An issue of fact is ‘genuine’ if the evidence is such that a

reasonable finder of fact could return a verdict or decision for the nonmoving

party.”). Jane Doe conceded she does not recall any offensive contact before,

during, or after the procedure. She had no reason to believe her clothes had

been removed.       Jane Doe nevertheless contends that Dr. Roe must have

touched her in an offensive manner because, when she awoke from sedation,

she was turned from her stomach to her back and there was a “white sticky

substance” on her face and neck. No reasonable person could find it offensive

for a doctor to turn a patient over to a resting position following a procedure.

Further, while Jane Doe repeatedly refers to the “white sticky substance” on her

face, intimating it may have been ejaculate or some other evidence of Dr. Roe’s

misconduct, the summary judgment record undisputedly establishes the

substance was Lidocaine ejected from a syringe used during the procedure.

There is no evidence, or even allegation, in the record to the contrary. Jane

Doe’s speculation and conjecture that something bad may have happened to her

during this medical procedure is insufficient to survive summary judgment. See

Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005) (“Speculation is not sufficient

to generate a genuine issue of fact.”).
                                         8



                                         B.

        Jane Doe conceded during the summary judgment proceedings that her

claim for breach of fiduciary duty was merely duplicative of her medical

negligence claim because both claims alleged a breach of the applicable

standard of care. The district court thus analyzed the claims as one and the

same:    a claim for medical negligence. The district court granted Dr. Roe’s

motion for summary judgment with respect to Jane Doe’s medical negligence

claim on the ground that recovery was barred in the absence of physical injury.

        To establish her claim for medical negligence, Jane Doe is required to

establish a breach of the standard of care and resulting damages. See Phillips v.

Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001). She conceded she has not

suffered any physical injury as a result of Dr. Roe’s alleged negligence. As a

general rule, “emotional distress damages are not recoverable in torts ‘absent

intentional conduct by a defendant or some physical injury to the plaintiff.’”

Miranda v. Said, 836 N.W.2d 8, 14 (Iowa 2013) (quoting Clark v. Estate of Rice

ex rel. Rice, 653 N.W.2d 166, 169 (Iowa 2002)). Stated differently, “[i]t is a well-

established principle that, if a plaintiff has suffered no physical injury, she will

ordinarily be denied recovery on a negligent infliction of emotional distress claim.”

Overturff v. Raddatz Funeral Servs., Inc., 757 N.W.2d 241, 245 (Iowa 2008). An

exception exists, however, where the nature of the relationship between the

parties and the nature of the acts by the defendant within the context of that

relationship gives rise to a duty to exercise ordinary care to avoid causing

emotional harm. See Miranda, 836 N.W.2d at 14; see also Oswald v. LeGrand,
                                          9



453 N.W.2d 634, 639 (Iowa 1990). The relationship and conduct must involve “a

matter of life and death evoking such mental concern and solicitude that [a]

breach . . . will inevitably result in mental anguish, pain and suffering.” Miranda,

836 N.W.2d at 36 (internal citation and quotation marks omitted).           Examples

include “the delivery of medical services incident to the birth of a child, the

transmission and delivery of telegrams announcing the death of a close relative,

and services incident to a funeral and burial.’” Overturff, 757 N.W.2d at 245

(citations omitted).    Moreover, the emotional distress must arise from the

plaintiff’s observation of or sensory experience of the negligent conduct. See

Millington v. Kuba, 532 N.W.2d 787, 793 (Iowa 1995).

        We conclude the district court did not err in dismissing Jane Doe’s claim.

The trigger point injection was routine and performed on an outpatient basis.

Unlike the examples cited above, the procedure in this case did not involve a

matter of life and death evoking mental concern and solicitude such that a breach

of care would inevitably result in mental anguish. See McNeal v. Nw. Iowa Hosp.

Corp., No. 11-1036, 2012 WL 2368786, at *2 (Iowa Ct. App. Mar. 28, 2012)

(affirming grant of summary judgment against claim of negligent infliction of

emotional distress and stating an ear surgery “is not the type of medical service

that   involves   a    deep   emotional   response   similar   to   life   and   death

circumstances”).      Further, plaintiff was sedated during the procedure.        She

admits that she has no recollection of or personal knowledge of Dr. Roe’s

allegedly negligent conduct during the course of the procedure. See Millington,

532 N.W.2d at 793 (stating court should consider whether plaintiff experienced
                                        10



the conduct or learned of the conduct after the fact). Accordingly, her claim fails

as a matter of law.

                                        C.

      Because the district court granted summary judgment in favor of Dr. Roe

on all counts, the district court then dismissed the negligent supervision and

retention claim against MAA. Because we affirm the judgment of the district

court as to all counts against Dr. Roe, we affirm the district court’s grant of

summary judgment in favor of MAA.            See Schoff v. Combined Ins. Co. of

America., 604 N.W.2d 43, 53 (Iowa 1999) (holding that negligent supervision and

retention requires proof of an underlying tort committed by the employee).

                                        IV.

      Jane Doe also raises a procedural issue. She contends the district court

abused its discretion in bifurcating the proceedings. “In any action the court may,

for convenience or to avoid prejudice, order a separate trial of any claim . . . .”

Iowa R. Civ. P. 1.914. Decisions regarding bifurcation are within the trial court’s

discretion and will be disturbed on appeal only if the trial court abused that

discretion. Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983). An abuse of

discretion occurs where the discretion was exercised on grounds or for reasons

clearly untenable or to an extent clearly unreasonable. See id. There is no

showing the district court abused its discretion in bifurcating the proceedings. In

any event, the issue is moot because the district court did not err in granting the

defendants’ motions for summary judgment.
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                                  V.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.
