Lois A. Graeve vs. Eugene J. Cherny and Heartland Plastic Surgery, P.C

IN THE SUPREME COURT OF IOWA
No. 142 / 97-653
Filed July 1, 1998
LOIS A. GRAEVE,
Appellee,
vs.
EUGENE J. CHERNY and
HEARTLAND PLASTIC SURGERY, P.C.,
Appellants.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Appeal from judgment for plaintiff in medical malpractice case tried in small claims court. REVERSED
AND REMANDED.
Susanna M. Albaugh of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellants.
Allan H. Rauch, Des Moines, for appellee.
Considered by Harris, P.J., and Larson, Carter, Neuman, and Ternus, JJ.
LARSON, Justice.
This is an appeal by the defendants in a medical malpractice case. The issue is whether the general rules
for establishing a prima facie case of malpractice apply in small claims trials. The district associate judge,
and the district court, concluded that the rules do not apply in the relatively informal proceedings of small
claims court. We granted the defendants’ application for discretionary review and now reverse and
remand.
I. Facts and Judicial Proceedings.
The plaintiff, Lois Graeve, had a facelift and platysmoplasty. A platysmoplasty is a liposuctioning of the
neck area and the placement of permanent sutures to correct a condition known as "turkey gobbler neck."
The surgery was performed in November 1994 by Dr. Eugene Cherny at the office of Heartland Plastic
Surgery, P.C.
In January 1995 Graeve began to notice a "little thing down here on [her] neck," and she mentioned it to
the doctor later that month. The doctor thought it was a skin lesion and told her that he would watch it
closely. In March 1995 Graeve returned, and Dr. Cherny found no sign of infection or abscess. Graeve
did not contact Dr. Cherny after that appointment to report any further problems. On June 21, 1995, she
visited her dermatologist, Dr. Ceilley, who removed one of the permanent sutures, which by that time had
caused an abscess.

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Graeve sued Dr. Cherny and Heartland in small claims court. Graeve testified in her own behalf, but she
did not present any expert testimony as to the doctor’s standard of care. The defendants presented
evidence from a plastic surgeon that Cherny’s care of Graeve met the applicable standard of care. The
doctor testified:
If you have a small lump in a post-liposuction patient, I don’t know of anybody who would
be interested in biopsying something like that in the first three or four months after
surgery. I don’t think that would be standard of care at all.
Dr. Cherny, the operating doctor, also testified that his care of the patient was appropriate based on her
condition at the time he saw her.
Expert testimony is ordinarily required in medical malpractice cases in order to establish a prima facie
case of negligence. See Iowa Code § 147.139 (1997); Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161,
165 (Iowa 1992). However, in rejecting the defendants’ challenge to the sufficiency of the plaintiff’s
evidence, the district associate judge stated:
Well, as far as this Court is concerned, there’s no motions in small claims, so as far as
this Court is concerned, she’s suing on the basis of negligent care and treatment, and
she can testify to that on her own. She doesn’t need an expert. So your motion is
overruled.
The court granted judgment for the plaintiff for $825. The defendants appealed to the district court, which
affirmed, ruling that the substantive requirements for a prima facie case of malpractice are not required in
small claims court. The ruling was based, in part, on a very pragmatic consideration: in many small claims
cases, it would be economically unfeasible to require the plaintiff to produce expert evidence.
II. The Law.
As the district court noted, the legislature intended to provide an informal manner of trial in small claims
cases—at least procedurally. We have said:
For these small claims suits, the legislature thought it was in the public interest to provide
a simpler, easier, and less expensive procedure than was afforded in district court under
the Rules of Civil Procedure. Under the plan an action can be brought by filing a form
provided by the clerk of court. The clerk can help fill out the form. According to
§ 631.7(1) no formal written pleadings or motions are required although the court may
allow them. Fees and costs are paid in advance.
Barnes Beauty College v. McCoy, 279 N.W.2d 258, 259 (Iowa 1979) (citations omitted).
The informality in such cases, however, is not without limitations. Iowa Code section 631.11(1) (1997), for
example, provides that "[t]he hearing shall be to the court, shall be simple and informal, and shall be
conducted by the court itself, without regard to technicalities of procedure." (Emphasis added.) In
addition, Iowa Code section 631.11(4) requires that "[j]udgment shall be rendered, based upon applicable
law and upon a preponderance of the evidence." (Emphasis added.)
The "applicable law" in medical malpractice cases is well established:
In order to establish a prima facie case of medical malpractice, plaintiff must show
evidence which establishes the applicable standard of care, demonstrate this standard
has been violated, and develop a causal relationship between the violation and the
alleged harm.

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This court has recognized three means of establishing specific negligence of a physician:
One is through expert testimony, the second through evidence showing
the physician’s lack of care [is] so obvious as to be within comprehension
of a layman, and the third[] (actually an extension of the second) through
evidence that the physician injured a part of the body not involved in the
treatment. The first means is the rule and the others are exceptions [to
it].
Perin [v. Hayne], 210 N.W.2d [609,] 613 [Iowa 1973]. Generally, when the ordinary care
of a physician is an issue, only experts can testify and establish the standard of care and
the skill required.
Kennis, 491 N.W.2d at 165 (citations omitted).
In addition, Iowa Code section 147.139 provides:
If the standard of care given by a physician and surgeon licensed pursuant to chapter
148 . . . is at issue, the court shall only allow a person to qualify as an expert witness and
to testify on the issue of the appropriate standard of care if the person’s medical . . .
qualifications relate directly to the medical problem or problems at issue and the type of
treatment administered in the case.
The district court acknowledged these requirements, but it concluded nevertheless that Dr. Cherny was
negligent because,
[a]t the hearing, Dr. Cherny testified that there exists about a five percent chance a
permanent suture could become infected. Thus, Dr. Cherny was aware that the lesion on
Graeve’s neck could have been caused by an infected suture. Nevertheless, Dr. Cherny
made no attempt to diagnose the problem as an infected suture, or treat the problem as
such.
While this might appear to a layperson to be a logical conclusion, the plaintiff offered no medical evidence
that the doctor’s care breached any standard of care.
Despite the relaxed procedural requirements for small claims cases, the requirement for use of the
"applicable law" remains intact. We conclude that the rules for establishing a prima facie case of medical
malpractice are applicable in a small claims case, just as in any other. Because this plaintiff failed to
establish a prima facie case of negligence, we reverse and remand for dismissal of the petition.
REVERSED AND REMANDED.

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