Ellie T. Shimp, Zach Shimp and Kerri Shimp
v.
Timothy A. Gibbons, M.D., Chad H. Boyer, P.A.-C., Jared A. Knowles, P.A.-C., Mason City Clinic, PC, Mercy Health Services-Iowa Corp. d/b/a MercyOne North Iowa Medical Center and Mercy Medical Center-North Iowa
Appellant
Ellie T. Shimp, Zach Shimp and Kerri Shimp
Appellee
Timothy A. Gibbons, M.D., Chad H. Boyer, P.A.-C., Jared A. Knowles, P.A.-C., Mason City Clinic, PC, Mercy Health Services-Iowa Corp. d/b/a MercyOne North Iowa Medical Center and Mercy Medical Center-North Iowa
Attorneys for the Appellant
H. Daniel Holm R. and Eashaan Vajpeyi
Ryan G. Koopmans
Attorneys for the Appellee
Deriree Kilburg and Paul J. Esker, for Mercy Health Services-Iowa, Corp. d/b/a MercyOne North Iowa Medical Center and Mercy Medical Center-North Iowa
Frederick T. Harris and John A. Maschman, for Timothy A. Gibbons, MD., Chad H. Boyer, P.A.-C., Jared A. Knowles, P.A.-C., and Mason City Clinic, PC
Court of Appeals
Court of Appeals Opinion
Opinion Number:
Date Published:
Summary
Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. Rosenbladt, Judge. REVERSED AND REMANDED. Heard at oral argument by Tabor, C.J., and Greer, Ahlers, Badding, and Buller, JJ. Opinion by Tabor, C.J. Special Concurrence by Buller, J. Dissent by Greer, J. (25 pages)
In a medical malpractice suit, the medical providers bring this interlocutory appeal and ask us to hold that Iowa Code chapter 668 (2020) applies to compare the fault of the medical providers with the fault of the released third-party jet ski defendants. OPINION HOLDS: Because we find that DeMoss v. Hamilton, 644 N.W.2d 302 (Iowa 2002), lends guidance, we hold chapter 668 does not apply to these facts. We reverse and remand the district court’s decision. SPECIAL CONCURRENCE ASSERTS: Because I believe DeMoss v. Hamilton, 644 N.W.2d 302 (Iowa 2002) strongly nudges us to reverse, and the supreme court has not yet adopted section 35 of the Restatement (Third) of Torts, I specially concur. DISSENT ASSERTS: I respectively dissent from the majority opinion because I do not think DeMoss prohibits what the medical providers seek to accomplish, thus we need not extend or overrule its holding or even engage in that exercise. I disagree with the majority finding that this malpractice action is a separate “claim” and so would find that Iowa Code chapter 668 applies here. And under the reasoning of Jahn and section 35 of the Restatement (Third), I would apply those evolving legal concepts so that the appropriate defendant, including the released party, is responsible for its share of the enhanced injury.
