Estate of Ellerie v. Cloos

IN THE COURT OF APPEALS OF IOWA

No. 22-0537
Filed March 29, 2023

ESTATE OF JUDITH M. ELLERIE, by its Co-Executors JAMIE L. ELLERIE and
LISA M. BODNAR,
Plaintiff-Appellant,

vs.

RYAN P. CLOOS, D.O. and DUBUQUE ORTHOPAEDIC SURGEONS, P.C.,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County,

John Bauercamper, Judge.

A plaintiff appeals the denial of a motion for new trial in a medical

malpractice action. REVERSED AND REMANDED.

Frederick W. James of The James Law Firm, P.C., Des Moines, for

appellant.

Alexander C. Barnett, Ian J. Russell, and Robert V.P. Waterman Jr. of Lane

& Waterman LLP, Davenport, for appellee.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ.
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AHLERS, Presiding Judge.

Dr. Ryan Cloos surgically replaced Judith Ellerie’s right knee.

Unfortunately, the procedure did not go according to plan. Ellerie complained of a

popping noise post operation. An x-ray showed her femur fractured.

Ellerie underwent surgery to fix the fractured femur using a plate and

screws. After setting the plate, Dr. Cloos was unable to add a third screw above

the fracture without removing the plate and starting over. He chose not to start

over to avoid prolonging the procedure and increasing the risk of complications.

Ellerie reported severe “pain from the knee up to the hip.” X-rays showed

the plate had shifted upward and the “lag screw” “backed out.” Dr. Cloos

performed a third surgery and replaced the plate and screws. After the third

surgery, Ellerie developed an infection.

Unsatisfied with her care, Ellerie brought this medical malpractice action

against Dr. Cloos and his employer, Dubuque Orthopaedic Surgeons, P.C.

(collectively, “Cloos”). Ellerie died before this case went to trial. The district court

permitted the co-executors of her estate to be substituted as the plaintiff in this

action. See Iowa Code §§ 611.20, .22 (2019) (permitting legal representatives of

a deceased party to continue the action); Iowa R. Civ. P. 1.221 (permitting

substitution of parties as permitted by statute upon death of a party).

At trial, the parties disagreed about a jury instruction about alternative

methods of treatment. After hearing arguments that included a verbatim recital of

the proposed instruction, the court overruled the estate’s objection and announced

it would give the instruction proposed by Cloos. However, the instruction actually
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submitted to the jury was not the instruction proposed by Cloos and approved by

the court. The jury ultimately found in favor of Cloos.

Ellerie’s estate moved for new trial based on the jury instruction and an

allegedly improper comment made by defense counsel during closing argument.

The court denied the motion, and the estate appeals.

We review challenges to jury instructions for legal error. Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). “Errors in jury instructions merit

reversal when prejudice results.” State v. Coleman, 907 N.W.2d 124, 138 (Iowa

2018). Prejudice results when the jury instruction materially misstates the law or

misleads the jury. Id. An instruction is “misleading or confusing if it is ‘very

possible’ the jury could reasonably have interpreted the instruction incorrectly.”

Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015) (citation omitted).

The estate argues jury instruction sixteen misled the jury because it lacked

an if/then statement. Cloos contends error is not preserved on this specific claim

because the estate never objected to the lack of an if/then statement when the

parties discussed jury instructions. However, due to the fact that the jury

instruction discussed at the final jury instruction conference was not the instruction

actually given, neither party had an opportunity to object to the instruction

submitted to the jury.

The instruction, as submitted to the jury, provided:

Physicians may disagree in good faith upon what would be
the proper treatment of a medical condition in a given situation. It is
for the physician to use his or her professional judgment to select
which recognized alternative courses of action which have been
recognized by the medical profession as proper methods of
treatment and the defendant in the exercise of this best judgment
4

elected one of these proper alternatives, then the defendants were
not negligent.

Contrast that instruction with Cloos’s proposed instruction, which the parties

actually discussed at the final jury instruction conference. Cloos’s proposed

instruction included an if/then statement, reading:

Physicians may disagree in good faith upon what would be
the proper treatment of a medical condition in a given situation. It is
for the physician to use his or her professional judgment to select
which recognized method of treatment to use in a given situation. If
you determine that there were two or more recognized alternative
courses of action which have been recognized by the medical
profession as proper methods of treatment and the defendant, in the
exercise of this best judgment, elected one of those proper
alternatives, then defendants were not negligent.

The court agreed to use Cloos’s proposed instruction. As no record was made

about the change, we assume it resulted from a scrivener’s error that

unintentionally omitted a portion of the proposed instruction in a manner that

removed the if/then statement.1

This change significantly altered the meaning of the instruction. When the

court revises an instruction after the time for the parties to review and object to jury

instructions passes, a party may make specific objections to the revised instruction

in a motion for new trial to preserve error. See Iowa R. Civ. P. 1.924. That is

1Below is the original instruction the court announced it would give with the portion
omitted from the instruction actually given to the jury underlined:
Physicians may disagree in good faith upon what would be
the proper treatment of a medical condition in a given situation. It is
for the physician to use his or her professional judgment to select
which recognized method of treatment to use in a given situation. If
you determine that there were two or more recognized alternative
courses of action which have been recognized by the medical
profession as proper methods of treatment and the defendant, in the
exercise of this best judgment, elected one of those proper
alternatives, then defendants were not negligent.
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precisely what occurred here—the estate preserved error on its “if/then challenge”

by raising the issue in its motion for new trial.2

On the merits, we start by acknowledging that instructions do not need to

be perfect or worded in any particular way. See, e.g., Rivera, 865 N.W.2d at 902

(“In determining whether an instruction is inaccurate, misleading, or confusing, we

look to the instructions as a whole and do not require perfection.”); Osterfoss v. Ill.

Cent. R.R., 215 N.W.2d 233, 235 (Iowa 1974) (“Counsel seems to feel he could

have said it better. Whether true or not, this does not make the instructions bad.

If an instruction covers the legal principles involved as they are raised by the facts

of the case, the trial court has the right to choose its own language to best

accomplish that purpose.”). But the instructions do need to accurately state the

law. Heldenbrand v. Exec. Council of Iowa, 218 N.W.2d 628, 637 (Iowa 1974)

(“[T]he court must correctly state the law and confine it to [the] factual situation [in

the record]. A misstatement of the law in an instruction to a jury is reversible

error.”). Further, misleading jury instructions are prejudicial and require reversal.

Rivera, 865 N.W.2d at 892.

Here, we agree with the estate that instruction sixteen as presented to the

jury misled the jury by its phrasing. By omitting the operative “if/then” language

from the proposed instruction, the instruction transformed from an instruction

asking the jury to decide whether an alternative approved method of treatment was

2 We recognize that neither party’s brief addresses the unannounced change in
the instruction and its impact on when a party must raise an objection in order to
preserve error. Nonetheless, the estate’s brief directed us to Iowa Rule of Civil
Procedure 1.924 in discussing when parties must object to instructions. And rule
1.924 provides the answer to this unique circumstance. So, we conclude the
estate did enough to get its “if/then challenge” in front of this court.
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used (which, if so found, would preclude a negligence finding) to an instruction

directing the jury that Cloos did employ an alternative approved method of

treatment and was not negligent. In short, removal of the if/then phrasing in

instruction sixteen effectively and improperly turned the instruction into a directive

to the jury and foreclosed its ability to determine whether the elements of the

marshalling instruction were met.3 Accordingly, we conclude the instruction was

prejudicial and necessitates reversal with a new trial. Because we reverse and

remand for new trial on the first challenge to the jury instruction, we do not address

the estate’s remaining challenges to the instruction or its challenge to defense

counsel’s closing argument.

REVERSED AND REMANDED.

3 The marshalling instruction stated:
The plaintiff, Estate of Judith M. Ellerie, must prove all of the
following propositions in order to recover damages:
1. The defendants, Ryan P. Cloos, D.O. and Dubuque
Orthopaedic Surgeons, P.C., were at fault due to negligence in failing
to properly repair Judith M. Ellerie’s right distal femur fracture on July
28, 2017.
2. The defendants’ negligence was a cause of damage to the
plaintiff’s decedent, Judith M. Ellerie.
3. The amount of damage.
If the plaintiff has failed to prove any of these propositions, the
plaintiff is not entitled to damages. If the plaintiff has proved all of
these propositions, the plaintiff is entitled to damages in some
amount.