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IN THE COURT OF APPEALS OF IOWA No. 6-520 / 04-1724 Filed November 16, 2006 DENNIS L. CAWTHORN, Plaintiff-Appellant/Cross-Appellee, vs. CATHOLIC HEALTH INITIATIVES IOWA CORP., d/b/a MERCY HOSPITAL MEDICAL CENTER, a corporation, Defendant-Appellee/Cross-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.

Plaintiff appeals from the district court's order granting a new trial and denying his claim for punitive damages. Defendant cross-appeals from various evidentiary rulings. AFFIRMED.

Gary R. Fischer of Dreher, Simpson & Jensen, P.C., and Verle W. Norris, Corydon, for appellant. Roberta M. Anderson of Schroeder & Anderson, Mason City, and Thomas A. Finley, Jack Hilmes, and Kami M. Lang of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.

Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.

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SACKETT, C.J. This appeal arises from plaintiff Dennis Cawthorn's action seeking actual and punitive damages from defendant Mercy Hospital Medical Center (Mercy Hospital) as a result of the defendant hospital's alleged (1) willful and wanton conduct and (2) negligence. The district court found insufficient evidence of willful and wanton conduct and dismissed that claim. The negligence claim was submitted to the jury and a verdict was returned in plaintiff's favor. The district court found the verdict flagrantly excessive and not sustained by the evidence. The court ordered a remittitur and conditionally provided for a new trial if plaintiff did not agree to the remittitur. Plaintiff has appealed, contending the court erred in reducing the jury verdict and granting a new trial. He also appeals from the court's grant of a directed verdict on his claim of negligent credentialing and refusal to submit punitive damages to the jury. Defendant cross-appeals, contending the court abused its discretion in allowing testimony regarding privileged and confidential information. I. BACKGROUND On May 1, 2000, Dr. Daniel Miulli performed a discectomy on plaintiff at defendant, Mercy Hospital, to repair a work-related spinal injury. Dr. Miulli

performed a second surgery on May 22 to remove a disc fragment. Plaintiff was readmitted to the hospital on June 20 complaining of pain. Dr. Miulli consulted Dr. Hlavin for a second opinion; she recommended testing plaintiff for infection. Relying on week-old tests, Dr. Miulli treated plaintiff with steroids and pain medication. In early July plaintiff went to the emergency room at the Mayo Clinic. A biopsy revealed a bacterial infection. The infection was treated with antibiotics. As a result of the deterioration of his spine, plaintiff underwent spinal fusion surgery in

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March of 2002. Plaintiff developed an incisional hernia, requiring surgery in April of 2004. On May 22, 2002, plaintiff filed suit against Dr. Miulli, Dr. Koontz, 1 Dr. Hlavin, and Mercy Hospital. Before trial, plaintiff dismissed his claims against Dr. Miulli, Dr. Koontz, and Dr. Hlavin. A jury trial was held in June and July of 2004. Prior to submitting the case to the jury, the court granted Mercy Hospital's motion for directed verdict on plaintiff's punitive damages claim. damages: Past medical expenses Future medical expenses Past pain and suffering Future pain and suffering Past loss of full body Future loss of full body Total damages $190,000 $400,000 $3,000,000 $4,000,000 $1,000,000 $2,000,000 $10,590,000 The jury returned a verdict including the following

The jury allocated fault seventy percent to Dr. Miulli and thirty percent to Mercy Hospital. Defendant filed several posttrial motions including a motion for judgment notwithstanding the verdict or, alternatively, for new trial and remittitur of damage award. Plaintiff filed a motion for partial new trial on punitive damages. The district court, after a hearing on the motions, found "that a portion of the jury's verdict was flagrantly excessive and not sustained by sufficient evidence and should be reduced." The court entered an order on October 19, 2004, providing for a

conditional new trial, which plaintiff could avoid by agreeing to remittitur of damages as follows:
1

Dr. Koontz was Dr. Miulli's employer and, for a time, chairman of Mercy Hospital's department of neurosurgery.

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Past pain and suffering Future pain and suffering Past loss of full body Future loss of full body

$200,000 $100,000 $200,000 $100,000

The court did not disturb the award for past or future medical expenses. The total damages following the remittitur were $1,190,000. The court's October 21, 2004 order denied plaintiff's motion for partial new trial on punitive damages, concluding "the evidence submitted did not rise to the level necessary for the submission of punitive damages to the jury." II. Scope of review A. Conditional new trial - remittitur. "`The scope of our review of a district court's ruling on a motion for new trial depends on the grounds raised in the motion.'" Richards v. Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005) (quoting Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001)). If the motion for a new trial was "`based on a discretionary ground, we review it for an abuse of discretion.'" Id. (quoting Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999)). In contrast, if the motion was "`based on a legal question, our review is on error.'" Id. (quoting Roling, 596 N.W.2d at 76). A court has "broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties." Iowa R. App. P. 6.14(6)(c). Our review of the court's ruling conditionally granting a new trial or remittitur, therefore, is for an abuse of discretion. See id. We are "slower to interfere with the grant of a new trial than with its denial." Iowa R. App. P. 6.14(6)(d). In passing on the alleged excessiveness of damages, we need to determine only whether there was substantial evidence to support the verdict. We have noted that the trial court is generally in a better position to determine whether the evidence was sufficient to justify an award based on the observations of the trial court.

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Clarey v. K-Products, Inc., 514 N.W.2d 900, 903 (Iowa 1994) (citations omitted). B. Partial new trial. Our review of the court's ruling denying a partial new trial on punitive damages and the earlier directed verdict on the issue is for correction of errors at law. See Summy v. City of Des Moines, 708 N.W.2d 333, 343 (Iowa 2006). In determining there was not substantial evidence to support an element of plaintiff's claim for punitive damages, the district court was required to view the evidence in the light most favorable to the plaintiff. Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005). Substantial evidence means evidence that a

"reasonable mind would accept as adequate to reach a conclusion." Thompson v. U.S. Fid. & Guar. Co., 559 N.W.2d 288, 290-91 (Iowa 1997). III. Discussion A. Conditional new trial

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