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IN THE COURT OF APPEALS OF IOWA No. 1-123 / 10-1207 Filed April 27, 2011 CRAIG RETTENMAIER, JANET RETTENMAIER and CRAIG RETTENMAIER on behalf of RANDI JO RETTENMAIER, a Minor and JAMES RETTENMAIER, a Minor, Plaintiffs-Appellants, vs. THE FINLEY HOSPITAL, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.

The Rettenmaiers appeal from the denial of their motion for new trial following a jury verdict in favor of Finley Hospital on their medical malpractice claim. AFFIRMED.

Martin A. Diaz and Elizabeth Craig of Martin Diaz Law Firm, Iowa City, for appellants. Robert D. Houghton, Jennifer E. Rinden, and Nancy J. Penner of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.

Heard by Eisenhauer, P.J., and Potterfield and Tabor, JJ.

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EISENHAUER, P.J. The Rettenmaiers appeal from the denial of their motion for new trial following a jury verdict in favor of Finley Hospital on their medical malpractice claim. They contend new trial is warranted because they were not allowed to pursue an ostensible agency theory. They also contend there were errors in jury selection and in allowing Dr. Paul Manternach to sit at counsel table. Because the district court did not abuse its discretion in its rulings, we affirm. I. Background Facts and Proceedings. Craig Rettenmaier sought

treatment at Finley Hospital on April 17, 2006. He arrived at the emergency room complaining of lightheadedness, blurred vision in his left eye, and a headache. He was treated by Dr. Manternach, who performed a physical

examination and ordered lab tests. The results of the examination and tests were normal. Dr. Manternach also ordered a CT scan. The results of the CT scan were interpreted by Dr. Gregory Grotz, a radiologist employed by Dubuque Radiological Associates. Dr. Grotz discussed the results of the CT scan over the telephone with Dr. Manternach. In Rettenmaier's medical chart, Dr. Manternach wrote, "CT head, atrophy [-] white matter changes [- ?] demyelinating disease." Dr. Grotz also included in the CT scan report, "Other causes for this appearance include white matter ischemic changes." There is a factual dispute over whether Dr. Grotz relayed the information about ischemic changes to Dr. Manternach. This dispute is the root of the arguments regarding ostensible agency.

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Dr. Manternach discharged Rettenmaier with the impression Rettenmaier was in the beginning stages of a degenerative or demyelinating disease. Rettenmaier declined Dr. Manternach's offer to set up an appointment with a neurologist for him. He then instructed Rettenmaier to follow up with a

neurologist within the week. However, on August 21, Rettenmaier suffered a severe stroke. He required full-time medical care and rehabilitation for

approximately one year and is disabled. On April 16, 2008, Rettenmaier, along with his wife and children, filed a medical malpractice claim against Finley Hospital.1 Their claim was premised on the theory Finley Hospital was vicariously liable under the doctrine of respondeat superior for the alleged negligence of its employees. Although they had not previously alleged any negligence by Dr. Grotz, the plaintiffs argued in their trial brief, filed three weeks before scheduled trial, for a jury instruction stating Dr. Grotz was an agent of Finley Hospital under the doctrine of ostensible agency. Finley Hospital then moved in limine to exclude any evidence or argument that it could be held liable for Dr. Grotz's conduct under the ostensible agency theory. Following a hearing, the district court

indicated it viewed the issue in terms of plaintiffs' obligations under the rules of discovery as opposed to the rules of evidence. It ordered, "Plaintiffs shall be precluded from offering any evidence or argument suggesting that Defendant is

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Three Finley Hospital doctors, including Dr. Manternach, were also named as defendants, along with Dubuque Neurology and Neurodiagnostic Center, P.C. By trial, all the other defendants had been dismissed except Finley Hospital.

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responsible for any negligent acts or omissions by Dr. Gortz without first obtaining Court approval outside the presence of the jury." Trial began on April 6, 2010. Although Dr. Manternach was no longer a party to the lawsuit and no longer employed by the hospital, he was allowed, over the plaintiffs' objection, to sit at counsels' table during trial as Finley Hospital's corporate representative. During jury selection, one of the potential jurors stated his belief that he could not be impartial and follow the instructions given in the case. After the plaintiff challenged the juror for cause, the court followed up with additional questions and the juror indicated he would follow the instructions given and render a verdict according to the law rather than his opinions. The court denied the challenge to the juror. The plaintiffs used a peremptory strike on the potential juror. The Clerk of Court also provided the wrong juror questionnaire for another juror, who acted as foreperson. At the close of trial, the jury returned a verdict in favor of Finley Hospital finding Dr. Manternach was not negligent. The district court entered judgment in favor of the hospital and the plaintiffs filed a motion for new trial. The district court denied the motion in its entirety and the plaintiffs appeal. II. Scope and Standard of Review. Our review of the denial of a motion for new trial depends on the grounds asserted in the motion. WSH Prop., L.L.C. v. Daniels, 761 N.W.2d 45, 49 (Iowa 2008). If the motion is based on a

discretionary ground, we review the trial court's decision for an a buse of discretion. Id. An abuse of discretion occurs when the court's decision is based

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on a ground or reason that is clearly untenable, or when the court exercises its discretion to a clearly unreasonable degree. Id. Evidentiary rulings are reviewed for an abuse of discretion, Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000), as are claims the court should have given a requested instruction. Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006). The trial court is also given broad discretion in acting on challenges for cause in jury selection, Nichols v. Schweitzer, 472 N.W.2d 266, 273 (Iowa 1991), and in deciding who sits at counsel table. State v. Pardock, 215 N.W.2d 344, 347 (Iowa 1974). III. Doctrine of Ostensible Agency. The plaintiffs contend the court

erred in denying their motion for new trial because it was error to exclude evidence and argument regarding whether Finley Hospital could be held liable for Dr. Grotz's negligence under an ostensible agency theory. They also so ught a jury instruction on this theory. Dr. Grotz was not an agent of Finley Hospital; he was not employed by the hospital, but by Dubuque Radiological Associates who held a contract with the hospital. However, a hospital impliedly holds out to patients seeking care that its emergency-response staff will competently handle emergency situations in the absence of their personal physicians. Wolbers v. The Finley Hosp., 673 N.W.2d 728, 734 (Iowa 2003). Accordingly, [a] hospital has an absolute duty to its emergency-room patients to provide competent medical care, a duty which cannot be delegated. Thus, a hospital may be vicariously liable for the negligence of its emergency-room caregivers, even if they are designated as independent contractors. This liability arises from an ostensible agency, in that an emergency-room patient looks to the hospital for

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care, and not to the individual physician--the patient goes to the emergency room for services, and accepts those services from whichever physician is assigned his or her case. Id. (quoting 40A Am. Jur. 2d Hospitals & Asylums

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