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IN THE COURT OF APPEALS OF IOWA No. 9-214 / 08-0171 Filed May 29, 2009

DANIEL ALAN DAY and NICOLE LEIGH DAY, individually and on behalf of their children GABRIEL ALEXANDER DAY and ELIJAH PATRICK DAY, Plaintiffs-Appellants, vs. THE FINLEY HOSPITAL, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Lawrence J. Fautsch, Judge.

The plaintiffs in a negligence case against a hospital appeal from the district courts giving of an instruction and denial of their motion to compel discovery. AFFIRMED.

Timothy S. White and Daniel M. Key of White & Johnson, P.C., Cedar Rapids, for appellant. Nancy J. Penner, Constance Alt, and Mark Zaiger of Shuttleworth & Ingersoll P.L.C., Cedar Rapids, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ.

2 MANSFIELD, J. This case presents two questions of statutory interpretation. Daniel Day and members of his family appeal an adverse jury verdict in their negligent credentialing case against The Finley Hospital (Hospital). Day developed

osteomyelitis after Dr. Michael Arnz, a podiatrist, performed ankle surgery on him at the Hospital, utilizing an external fixation frame that required drilling of holes through the tibia. Day contends the Hospital was negligent in allowing Dr. Arnz to perform this surgery because it exceeded the lawful scope of podiatry practice and because Dr. Arnz was not properly qualified. During the course of discovery, the district court refused to allow Day to have access to records in Dr. Arnzs credentialing file at the Hospital, citing Iowa Code section 147.135(2) (2005). Also, at the close of trial, the district court instructed the jury that Dr. Arnz had not practiced outside the lawful scope of podiatry as defined in section 149.1, thus eliminating this part of Days case. Thereafter, the jury returned a verdict in favor of the Hospital. Day argues that the district courts interpretations of sections 147.135(2) and 149.1 were both erroneous. Finding no error, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND. The trial testimony revealed that Day suffers from a congenital ailment known as Charcot-Marie-Tooth disease. This neurological condition can lead to deformities in the feet. On June 17, 2004, Day met with Dr. Arnz to discuss having surgery on his right foot in order to correct certain effects of his disease. Dr. Arnz raised the possibility of using an external fixator instead of a traditional cast for stabilization. This fixator requires holes to be drilled through

3 the tibia,1 and pins to be inserted. infection. This creates an increased possibility of

Dr. Arnz had assisted physician instructors in the use of external

fixators while in his residency and had just attended a training session on the use of external frames. With these exceptions, however, his experience had been with traditional methods of casting and stabilization. Nonetheless, the Hospital granted him privileges to perform this kind of surgery. Days surgery was only the second time Dr. Arnz had applied a circular frame by himself. On July 14, 2004, Dr. Arnz performed surgery on Days right foot at the Hospital. Following the surgery, Day developed a postoperative infection in his tibia, which developed into osteomyelitis, a bone infection, resulting in serious complications. On May 18, 2006, Day filed a medical malpractice case naming Dr. Arnz, Dubuque Podiatry, P.C., and the Hospital as defendants. Prior to trial, Dr. Arnz and Dubuque Podiatry settled with Day, and those claims were dismissed. The remaining claim was a negligent credentialing claim against the Hospital. Although our supreme court has not yet expressly recognized negligent credentialing claims, a number of other jurisdictions have. The district court

denied the Hospitals motion for summary judgment on that claim. During the discovery phase of the case, Day tried repeatedly to compel the production of documents in the Hospitals credentialing file for Dr. Arnz. The court denied Days motions, citing Iowa Code section 147.135. On December 4, 2007, a jury trial began. At the conclusion of testimony, the district court determined Dr. Arnz had not practiced outside the scope of
1

The tibia, or shinbone, is the larger bone that connects the knee to the ankle.

4 podiatry as defined by Iowa Code section 149.1 and so advised the jury. On December 21, 2007, the jury returned a verdict in favor of the Hospital. Day moved for a new trial, which the district court denied on January 18, 2008. On appeal, Day asserts: (1) the district court erred in finding Iowa law permits podiatrists to perform surgery on the medial tibia to facilitate foot and ankle surgery and (2) the district court abused its discretion in denying the discovery of credentialing files. II. LEGAL ANALYSIS. We believe both questions raised by this appeal are straightforward matters of statutory interpretation, which we review for correction of errors at law, and we resolve both in favor of the Hospital. State v. Iowa District Ct., 730 N.W.2d 677, 679 (Iowa 2007) (review for correction of errors at law). By doing so, we avoid reaching certain other arguments raised by the Hospital in support of the verdict below. A. Definition of Podiatry. Iowa Code section 149.1(1)(b) defines podiatrists as "Persons who diagnose, prescribe, or prescribe and furnish medicine for ailments of the human foot, or treat such ailments by medical, mechanical, or surgical treatments. " Section 149.1(2) adds that "[a]s used in this chapter, ,,human foot means the ankle and soft tissue which insert into the foot as well as the foot." Days position is that these provisions did not authorize Dr. Arnz to drill holes into his tibia, as part of a procedure for treating his foot. We respectfully disagree for two reasons. First, the statute by its literal terms encompasses "treat[ing] . . . ailments [of the human foot and ankle] by medical, mechanical, or

5 surgical treatments." That is what Dr. Arnz did here. He was treating Days foot. The fact that this treatment involved drilling holes in the tibia for a fixation device does not alter the analysis, because Dr. Arnz was not treating the tibia. As the Hospital points out, if Days position were correct, then logically podiatrists could not prescribe medications for the foot if the patient takes them orally. Nor could podiatrists provide traditional leg casts for their patients undergoing foot or ankle surgery. Second, in this case, Day asked the Iowa Board of Podiatry Examiners for its opinion. The board concluded that "if the more proximal tibia is being used for treatment of foot or ankle condition," this is within podiatric practice. The boards letter is not a formal agency action, and we do not believe interpretation of section 147.1 has been clearly vested by statute in the board. See Iowa Code

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