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IN THE COURT OF APPEALS OF IOWA No. 7-504 / 07-0080 Filed October 24, 2007 DWAYNE HUPKE and DOROTHY HUPKE, Plaintiffs-Appellants, vs. FAMILY HEALTH CARE OF SIOUXLAND, P.L.C., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Woodbury County, Edward A. Jacobson, Judge.

Plaintiffs appeal from the district court's ruling denying their motion for new trial following a verdict and judgment entry in favor of defendant. AFFIRMED.

Edward J. Keane of Gildemeister & Keane, L.L.P., Sioux City, for appellants. Charles T. Patterson and John C. Gray of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellee.

Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.

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MILLER, J. Dwayne and Dorothy Hupke appeal from the district court's ruling denying their motion for new trial following a verdict and judgment entry in favor of Family Health Care of Siouxland, P.L.C. We affirm the judgment of the district court. I. BACKGROUND FACTS AND PROCEEDINGS. On September 15, 2004, Dwayne Hupke underwent a colonoscopy and esophogastroduodenoscopy at Family Health Care. Dr. John Kissel, the Hupkes' family physician, began performing the outpatient diagnostic procedures at 11:05 a.m. and finished at 11:30 a.m. Barb Heikes, a registered nurse with over thirty years experience, assisted Dr. Kissel. Dwayne received the medications Versed and Demerol throughout the twenty-five minute procedure, which caused him to be "arousable but asleep." Heikes monitored Dwayne after Dr. Kissel completed the procedures. She engaged in conversation with him "to get him awake more" and gave him water and toast around noon to aid in rousing him. After he finished the water and toast, she "had him set on the edge of the bed to make sure he was stable and then . . . assisted him to the bathroom." Heikes helped him sit down on the toilet and "put the chair with his clothes on it right up next to the toilet, so they were right in front of him." She told him she would "be right outside the door, if he needed anything to please let [her] know." She further instructed him "to sit and call me when he was ready to put his clothing on." Heikes left the bathroom door "cracked open" and waited for Dwayne a few feet outside of the bathroom. Approximately two to three minutes later, she went into the bathroom after hearing a noise and discovered Dwayne

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"standing, just leaning over the sink, and he had one hand up over his eye." He told her "he had slipped and hit his eye on the sink." Dr. Kissel's notes following the incident indicated "apparently he got one leg in his underwear and then lost his footing and fell." Dwayne thereafter lost sight in his eye. The Hupkes filed an amended petition against Family Health Care on May 19, 2005. They alleged Family Health Care's employee, Heikes, negligently left Dwayne alone in the bathroom while unattended resulting in a permanent and severe eye injury. Dwayne sought recovery for his personal injury and damages, while Dorothy sought recovery on a loss of consortium claim. The Hupkes filed a motion in limine on September 22, 2006, requesting in relevant part that the district court preclude Family Health Care from introducing the following evidence: (1) whether the Hupkes had any complaint with any of the care or treatment rendered by Dr. Kissel before September 15, 2004; (2) whether the Hupkes had their records transferred from Dr. Kissel's office after the incident; (3) whether Dwayne had any complaints regarding a previous colonoscopy done at Dr. Kissel's office in October of 2001; (4) an informed consent form signed by Dwayne concerning the procedures performed on September 15; and (5) a survey of nurses taken by Family Health Care's expert witness, Dr. Ronald Kolegraff. Following a hearing, the district court entered an order sustaining the motion as to certain evidence and overruling the motion as to the above-listed evidence. The case proceeded to trial on September 26, 2006. The jury returned a verdict in favor of Family Health Care. The Hupkes filed a motion for new trial asserting the verdict was not supported by sufficient evidence. They further

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asserted "[e]vidence of implied consent should not have been admitted," and "Defendants should not have been permitted to introduce evidence that Plaintiffs had no complaint against Dr. Kissel, but had their records transferred from Dr. Kissel's Office." The district court entered a ruling on December 6, 2006,

denying the motion for new trial. The Hupkes appeal. They claim the district court erred when it allowed "irrelevant, prejudicial, misleading, and confusing" evidence regarding (1) the informed consent form signed by Dwayne; (2) Dr. Kolegraff's survey of nurses; (3) whether the Hupkes had any complaints related to Dr. Kissel's care or treatment before September 15, 2004; (4) whether the Hupkes complained about a prior colonoscopy procedure conducted at Dr. Kissel's office in October 2001; and (5) whether the Hupkes transferred their records from Dr. Kissel's office and terminated their doctor-patient relationship after September 15. They further

claim the district court erred in failing to grant a new trial because the jury's verdict was not supported by sufficient evidence. II. SCOPE AND STANDARDS OF REVIEW. Our review of a district court's ruling on a motion for new trial depends on the grounds raised in the motion. Clinton Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). When the motion and ruling are based on discretionary grounds, our review is for abuse of discretion. Id. However, when the motion and ruling are based on a claim the trial court erred on issues of law, our review is for correction of errors at law. Id. If a verdict "is not sustained by sufficient evidence" and the movant's substantial rights have been materially affected, it may be set aside and a new

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trial granted. Iowa R. Civ. P. 1.1004(6); Olson v. Sumpter, 728 N.W.2d 844, 850 (Iowa 2007). "Because the sufficiency of the evidence presents a legal question, we review the trial court's ruling on this ground for the correction of errors at law." 1 Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004). On the other hand, "[w]e generally review the admission of

evidence at trial for an abuse of discretion." Clinton Physical Therapy Servs., 714 N.W.2d at 609-10. Therefore, our review of the trial court's ruling as to the challenged evidence in this case is for abuse of discretion. Hansen v. Central Iowa Hosp. Corp.

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