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IN THE COURT OF APPEALS OF IOWA No. 2-136 / 11-0872 Filed June 27, 2012 NICOLLE DAVIS, Individually and on behalf of her children, and ANDREW DAVIS, Plaintiffs-Appellants, vs. JAMES F. PAUL, D.D.S., M.S., M.D., and PLASTIC SURGERY CENTER, P.C. Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

Nicolle Davis appeals district court rulings denying her motions for directed verdict, judgment notwithstanding the verdict, and a new trial which alleged insufficient evidence, cumulative evidence, and an improper jury instruction. AFFIRMED.

Pressley Henningsen and Emily Anderson of Riccolo & Semelroth, P.C., Cedar Rapids, for appellants. Connie Alt and Nancy J. Penner of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees.

Heard by Vogel, P.J., and Tabor and Bower, JJ.

2 TABOR, J. Nicolle Davis appeals following the jury verdict finding Dr. James F. Paul not negligent in cutting her spinal accessory nerve during surgery to remove a lymph node. Davis challenges the district court's denial of her motion s for

directed verdict, judgment notwithstanding the verdict, and for a new trial arguing: (1) the jury's verdict in favor of Dr. Paul was not supported by sufficient evidence and was contrary to the law, (2) the district abused its discretion by allowing the defendant to call two expert witnesses to give testimony regarding the standard of care, and (3) the district court erred when it instructed the jury that a physician or surgeon is not a guarantor of favorable results. We affirm the ruling of the district court for three reasons: first, the record contained sufficient evidence that Dr. Paul satisfied the standard of care to send the question of negligence to the jury; second, the testimony of Dr. Paul's two expert witnesses was not cumulative because each expert testified as to the standard of care in their separate medical specialties; and third, Davis did not preserve error on the use of the word "guarantor" in Jury Instruction No. 17 because she did not object on that ground before the instruction went to the jury. I. Background Facts and Proceedings In January 2006, Davis underwent a routine physical by her family physician, Dr. Kopp. The examination revealed a swollen lymph node in the posterior triangle of her neck on the right side.1 Dr. Kopp instructed her to return to have the lymph node checked in six months. When Davis returned seven

1

The posterior triangle of the neck is the area bordered by the clavicle (collarbone) and the sterna mastoid and trapezius muscles.

3 months later, the lymph node remained swollen. Dr. Kopp suggested further evaluation, sent Davis for an ultrasound, and, after reviewing the ultrasound, recommended Davis see a surgeon to discuss having the lymph node removed. Davis consulted with Dr. James F. Paul. Dr. Paul practices as a plastic and reconstructive surgeon in Davenport, Iowa, and has training and education in dentistry, oral surgery, general surgery, craniofacial surgery, and pediatric plastic surgery. After examining Davis, Dr. Paul gave her three options for treatment of the swollen lymph node: aspiration with a needle, observation for six months, or surgical removal. Davis chose to have Dr. Paul remove the lymph node. Before operating, Dr. Paul discussed possible risks of the surgery with Davis and provided her with the standard American Society of Plastic Surgeons informed consent form for skin lesion/skin tumor removal, which lists a potential for injury to deeper structures including nerves.2 Dr. Paul removed Davis's lymph node on August 8, 2006, with no apparent complications. Davis subsequently began experiencing pain in her

neck. During a follow-up appointment with Dr. Paul, Davis mentioned her pain. The doctor thought her pain related to a preexisting back condition she suffered. After continued pain and problems with Davis's right arm strength and range of motion, her physical therapist referred Davis to a neurologist, who ordered two electromyograms (EMGs), tests which evaluate and record electrical activity produced by skeletal muscles. The second test revealed an injury to Davis's spinal accessory nerve, which controls the trapezius muscle. It is located in the posterior triangle of the neck, in close proximity to the lymph nodes in that area.
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Davis does not raise an issue involving informed consent.

4 But the position of the spinal accessory nerve is highly variable and its path can be unpredictable. The neurologist referred Davis to the Mayo Clinic, where neurosurgeon Dr. Robert Spinner performed surgery on July 2, 2007, to repair her spinal accessory nerve. During surgery, he found the nerve had been traumatically severed and repaired it with a graft from a nerve in Davis's leg. Due to the extent of the injury to the spinal accessory nerve, Dr. Spinner predicts Davis will not fully recover her right arm strength and range of motion. Davis, her husband, and her children filed a timely medical malpractice claim against Dr. Paul and his practice, Plastic Surgery Center, P.C., on August 5, 2008. Davis claims Dr. Paul cut through her spinal accessory nerve without identifying it and without extenuating circumstances during surgery to remove her swollen lymph node. The district court held a jury trial from April 4

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