IN THE COURT OF APPEALS OF IOWA

No. 22-0479

Filed April 26, 2023

ESTATE OF STEVEN ANDERSON, by its Executor DEBRA ANDERSON, 

Individually,

Plaintiff-Appellant,

vs.

PRAVEEN PRASAD, M.D., and IOWA SURGERY CENTER, P.C.,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

The Estate of Steven Anderson appeals from an adverse judgment in this 

medical malpractice case against Praveen Prasad and the Iowa Surgery Center. 

AFFIRMED.

Jim Duff and Thomas J. Duff of Duff Law Firm, P.L.C., West Des Moines, 

for appellant.

Cathy S. Trent-Vilim and Frederick T. Harris of Lamson Dugan & Murray 

LLP, West Des Moines, for appellees.

Heard by Bower, C.J., and Ahlers and Buller, JJ.
2

BOWER, Chief Judge.

The Estate of Steven Anderson (“Estate”) appeals from an adverse 

judgment in this medical malpractice case against Praveen Prasad, M.D., and the 

Iowa Surgery Center, P.C., claiming the district court abused its discretion in 

allowing Dr. Prasad to testify regarding the standard of care when he was not 

designated as an expert under Iowa Code section 668.11 (2019). Finding no error 

of law or abuse of the court’s discretion in ruling on evidentiary matters, we affirm.

I. Background Facts and Proceedings.

Steven Anderson went to the hospital complaining of abdominal pain on 

Friday, August 18, 2017. He was jaundiced. Medical personnel determined 

Anderson had a gallstone blocking his common bile duct and an infection. On 

August 19, Dr. Verma, a gastroenterologist, performed an endoscopic retrograde 

cholangiopancreatogram (ERCP) and was able to break some particles off the 

large stone in the duct and remove them.1 But, the duct remained blocked, and a 

stent was inserted to allow the bile (and pus) to drain to the intestines.2

On Monday, August 21, Dr. Prasad, a general surgeon employed by Iowa 

Surgery Center, performed a laparoscopic cholecystectomy, that is, gallbladder 

removal surgery.

3

 Anderson died from complications on September 5. 

1 The ERCP involves “put[ting] a scope down into the stomach, beginning part of 

the duodenum,” to inject dye into the bile duct. The doctor will “either crush the 

stone, using baskets to pull it out, or sometimes they laser it.” 

2 Dr. Verma noted the extensive dilation of the duct and a retained gall stone.

3 Rather than an “open procedure” where the surgeon makes a large cut and 

performs the surgery in the opening, laparoscopic surgery involves making several 

small cuts through which surgical instruments and a camera are inserted into the 

patient. The camera is hooked to a monitor allowing the surgeon to see and 

perform the surgery. 
3

The Estate filed suit against Dr. Prasad and the Iowa Surgery Center

(collectively, the “defendants”), alleging Dr. Prasad was negligent in performing the 

gallbladder removal, which caused Anderson’s death. Both sides designated 

experts pursuant to section 668.11; the Estate named Dr. Samuel Feinberg, and 

the defendants designated Dr. Paul Severson as their medical expert on standard 

of care.4

Dr. Prasad denied the following statements sent as requests for admissions: 

• “during Plaintiff-decedent [Steven] Anderson’s August 21, 

2017 cholecystectomy procedure Defendant Prasad violated 

the standard of care of a general surgeon”; 

• “the ligation of a patient’s right hepatic artery during a

cholecystectomy violates the standard of care for a general 

surgeon”;

• “the failure to identify the ligation of a patient’s right hepatic 

artery during a cholecystectomy violates the standard of care 

for a general surgeon”;

• “the stapling of a patient’s common bile duct during a 

cholecystectomy violates the standard of care for a general 

surgeon”;

• “the failure to identify the stapling of a patient’s common bile 

duct during a cholecystectomy violates the standard of care 

for a general surgeon”;

• “the ligation of Plaintiff-decedent [Steven] Anderson’s right 

hepatic artery and stapling of Plaintiff-decedent [Steven]

Anderson’s common bile duct—which occurred during 

Plaintiff-decedent Stephen Anderson’s August 21, 2017

cholecystectomy procedure—caused Plaintiff-decedent 

[Steven] Anderson’s death.”

The parties filed motions in limine about the scope of Dr. Prasad’s 

testimony. The court concluded Dr. Prasad “may testify as to the medical facts 

4 We do note that a released-defendant designated “all of Mr. Anderson’s 

healthcare providers, including all physicians, therapists, physician assistants and 

nurses, and all other health care providers identified in the records concerning 

Steven Anderson, as potential expert witnesses concerning their diagnosis, 

treatment, opinions on causation reached in the course of treating the patient, and 

nature extent and scope of alleged damages.” 
4

regarding his care of Mr. Anderson during the laparoscopic surgery and that what 

he was doing was appropriate based on his opinions associated with treating his 

patient, Mr. Anderson.”

At trial, the Estate’s expert, Dr. Feinberg, testified Dr. Prasad violated the 

standard of care during Anderson’s gallbladder removal surgery, which caused 

Anderson’s death. Dr. Feinberg explained, 

What you’re trying to do is, when you’re doing the surgery, is get in 

the right area so that you can dissect out the structures so that you 

see the cystic duct and cystic artery. The whole object of the surgery 

is protect the common bile duct, protect the common hepatic duct. 

See only two structures that go to the gallbladder. You can safely 

remove it.

Dr. Feinberg testified Dr. Prasad clipped the right hepatic artery thinking it was the 

cystic artery. 

Q. And I think they used the word they “felt” it was the cystic 

artery.[5] When you’re in surgeries, do you just feel that things might 

be something without exploring more? A. Well, especially with 

inflammation and you haven’t gotten the anatomy down, no. The

answer would be you want to see exactly what you’re cutting. 

Dr. Feinberg testified Dr. Prasad’s “failure to appreciate the anatomy” was a 

violation of the standard of care; “The whole object of the cholangiogram is to orient 

you so that you know exactly where you are.” 

Q. I’ll ask another question here, Doctor. Dr. Prasad was—

what sort of a procedure as far as the cholecystectomy—what type 

of cholecystectomy was he trying to do? A. He was trying to remove 

a subtotal or two-thirds, three-quarters of the gallbladder so that he 

would be safe to not injure the common hepatic duct or the hepatic 

artery.

Q. So he’s just trying to do a partial removal? A. That is 

correct.

5 This description is from the postoperative report by Dr. Prasad and the assisting 

fifth-year resident, Dr. Nechtow.
5

Q. He’s trying to do a partial removal. What did he actually 

remove? A. He removed the total gallbladder with the cystic duct.

Q. Does that violate the standard of care? A. If his object was 

to remove the gallbladder itself, then no. If he’s only trying to remove 

part of the gallbladder and ends up removing the whole gallbladder, 

then yes.

Dr. Severson testified for the defense that Anderson had Mirizzi syndrome, 

“a very unusual condition” where the “patient [is] infected in the bile ducts due to 

obstruction of a stone and develop[s] what we call ascending cholangitis—that’s 

an infection where pus gets in the bile duct—it’s an extremely dangerous 

infection.”

6 Dr. Severson testified there are four stages of Mirizzi syndrome. In 

stage four, a stone that has been trapped in the common bile duct ulcerates 

through the wall of the duct. In Dr. Severson’s opinion, Anderson was Mirizzi stage 

four. 

Dr. Severson testified the interoperative cholangiogram was done “to try to 

delineate the anatomy,” which was difficult because “there was so much fibrous

scarring.” He stated, “The Mirizzi syndrome has created such dense scar tissue 

in the hepatocystic triangle that it’s impossible to dissect. That is the definition of

Mirizzi syndrome.” A second interoperative cholangiogram was necessary—which 

happens “[v]ery rarely.” But Dr. Prasad “needed to be absolutely sure about what 

the anatomy showed and where they could safely divide the infundibulum.”

Dr. Severson took issue with Dr. Feinberg’s interpretation of the 

cholangiogram:

6 Dr. Severson testified, “The average surgeon does not [know about Mirizzi 

syndrome] because the incident is so low.” The condition is “not well understood 

by the medical community” because it is seen in “[o]ne out of a thousand 

laparoscopic cholecystectomy cases.” 
6

Q. Do you have an understanding of where Dr. Feinberg 

thinks the dye first comes out? Or where the Kumar clamp is, let’s 

start there. A. He thinks it was—he says that this clamp was across 

the common hepatic duct and the dye was directly injected into the 

common hepatic duct.

Q. How would it be directly injected if the needle is down in 

the cystic duct? A. It’s impossible. There’s no—the Kumar only has 

one needle that always comes out right here (indicating). It can only 

squirt out here (indicating). It can’t squirt out here (indicating). That’s 

the nature of the Kumar clamp.

Q. So if we played this one more time, when we had our eyes 

up on the end of the Kumar clamp, are we going to see dye coming 

out the end of that Kumar clamp and flowing in as Dr. Feinberg 

describes? A. Well, if he were somehow correct, which he couldn’t 

be because there’s no—you can always see the needle. That’s why 

needles are metal. You can always see them. There’s no needle up 

here and there never is a Kumar clamp. They always come out here

indicating). You would have dye coming in like this and it would 

come backwards (indicating).

Q. And does it? A. That’s what he says he saw. No, that’s 

not the way it works.

Dr. Severson testified this three-hour surgery involved “great difficulties, 

many maneuvers, lots of steps and techniques trying to identify the anatomy and 

safely perform the surgery.” 

Q. And do you have an opinion as to whether those steps and 

techniques were appropriate? A. Yes.

Q. And why? What is that opinion? A. The opinion is that 

those were the appropriate steps.

Q. And why? A. Well, if you can’t have a critical view of safety 

achieved because the area that we’re supposed to start the 

dissection in, the triangle or the hepatocystic triangle—and that’s 

impossible because it’s all fused and it’s scarred in—then the

infundibular technique is very good and the recommended way for 

surgeons to be able to continue the operation and safely go around 

the infundibulum. Around the infundibulum, there really should be 

no major structures that can get the surgeon into trouble.

Dr. Severson stated Dr. Prasad performed a different surgery than originally 

planned, referring to it as a “bailout procedure,” that is, “we just have to try to do 

our best and get out of the operating room today without trying to injure anything 
7

serious.” He stated the performance of a partial gallbladder removal “allows the 

doctor to take out the majority of the gallbladder, hopefully control the infection and 

the sepsis, and get the majority of the stones out. And you try to get the patient to 

survive the syndrome.” 

Q. Was it appropriate for him to get those two

cholangiograms? A. Yes, it was very appropriate.

Q. And was it appropriate for Dr. Prasad to—was it 

appropriate to think that there was a long cystic duct there and be 

able to move your stapler closer to the common duct? A. There was 

a long cystic duct there. And I think it would have been very expected 

by most surgeons to be able to have leeway, to be able to move the 

stapler toward the duct.

Q. And is that what a reasonable surgeon would do in this 

circumstance? A. Yes.

With respect to the injury to the hepatic artery, Dr. Severson opined:

. . . [I]t’s two potential things. . . . In Dr. Prasad’s report, 

there’s a mention of a clipping of what they thought was the artery. 

And I presume that it was somewhere in the normal anatomy, 

somewhere in here, and that they thought that it was the cystic artery.

And it could have been right hepatic artery that was clipped at that 

time.

Or, number two, it could have been just absolutely plastered 

and drawn up into the scar tissue mass, which is what happens one 

out of four times. That’s the other possibility. The stapler came right

across it also. With the same injury that took out those two ducts, 

could have been the right hepatic artery fused to the back of it, which 

they couldn’t see.

Q. Okay. And why can’t they see that? A. It’s all scarred in. 

It’s just—you can’t separate the structures. They are all encased by 

scar tissue.

Q. Does the standard of care require the surgeon to try to 

separate them, to dig down into those—A. No.

Q. Why not? A. Number one, it’s dangerous. Number two,

you can’t. It’s impossible. It’s fused. It’s all fused together.

Dr. Severson also testified it was not a violation of the standard of care to 

not immediately know a complication occurred during surgery. 
8

Dr. Prasad testified, outlining how Anderson came to be his patient and why 

Anderson fell into the minority of those whose laparoscopic surgery could not be 

done on an outpatient basis. He explained the stones in Anderson’s gallbladder 

necessitated its removal and if the gallbladder remained it would be a persistent 

source of infection and could lead to sepsis. Dr. Prasad requested Dr. Nechtow

assist him with the procedure. He testified about the problems they encountered 

doing the surgery, including significant inflammation of the gallbladder that had 

caused the gallbladder to adhere to other structures. Dr. Prasad testified that when 

performing a laparoscopic cholecystectomy, it is preferred that the surgeon 

achieve a “critical view of safety,” that is, freeing the gallbladder from all 

surrounding tissue to obtain a visual of two and only two structures attached to the 

gallbladder, the cystic duct and cystic artery, which need to be dissected before 

you remove the gallbladder. If not able to achieve the critical view of safety, the 

surgeon uses the infundibular technique. He testified he could not achieve a 

critical view of safety in Anderson’s surgery and attempted the infundibular 

technique. Due to the severity of Anderson’s inflammation, adhesions, and scar 

tissue, Dr. Prasad performed two cholangiograms to orient the surgery. 

Dr. Prasad testified the gallbladder was removed from the abdominal cavity 

using an EndoCatch retrieval bag, which was then secured and removed.7 The 

following exchange occurred:

Q. Now, once you get it in this endo bag and it’s outside of 

Mr. Anderson, what happens to the endo bag at that point? A. So 

we hand it over to our scrub nurse who is working with us, and she 

7 This EndoCatch bag is inserted through one of the ports and is “like a fishnet” in 

which the surgeon places the dissected gallbladder. The bag is closed off by 

pulling a thread and then removed from the body and sent to the lab.
9

gives it to the—there’s another nurse in the room, circulating nurse. 

She takes it and she puts it in a container and that goes to the lab to 

be checked.

Q. Do you open that endo bag and look at the gallbladder at 

that point? A. No.

Q. Would it look any different than what you’ve been seeing 

the entire surgery? A. Yes, we don’t look at it. We don’t open it.

Q. Have you ever opened the endo bag and looked at it? 

A. No.

Q. Have you observed other surgeons, when they do 

laparoscopic cholecystectomies, open the endo bag? A. No.

MR. THOMAS DUFF: I object.

THE COURT: Hold on a second, Doctor.

MR. THOMAS DUFF: I object to the question as asking about 

what other doctors do. It’s completely inappropriate, and I’d ask the 

witness’s answer be stricken and that the jury be instructed to

disregard it.

THE COURT: Doctor, you can answer if you have personal 

knowledge. 

A. When I scrub in with other surgeons, as I mentioned before, 

I’ve never seen anybody open the bag to look at the gallbladder after 

it’s been removed from the abdomen.

Q. (By Ms. Nelson) Did Dr. Nechtow open it to look at it? 

A. No.

Q. When you were in your surgical training, were you taught 

you should open the endo bag and look at the gallbladder? A. No.

Q. When you teach residents, do you teach them to open that 

endo bag and look at the gallbladder? A. No.

Dr. Prasad then testified about the complications Anderson experienced 

several days after surgery, which were handled by another doctor. Dr. Prasad 

explained, “When we finished the operation, we knew that there was some oozing, 

which we took care of. But short of that, the rest of the operation looked to have 

been—had just gone okay. We didn’t see any—yes, it looked like it was all right.” 

Dr. Prasad acknowledged that he learned after the surgery that the right hepatic 

artery had been clipped and ducts had been injured. 

Over the Estate’s strenuous objection, Dr. Prasad was allowed to answer 

the question whether he performed Anderson’s surgery appropriately. He testified:
10

Well, looking back at it, this operation, there were a few things. 

One is, I had a chief resident working with me, to help me with the 

case and to have another set of eyes. Number two, I took all the 

appropriate steps which I needed in the operation. I took my own 

time in dissecting. Normally gallbladders we can finish in, you know, 

over an hour or even less. But this one we took it slowly and

carefully. Took us almost over three hours of operation. We were 

careful in dissecting because the tissue was thick and inflamed and 

friable. We made sure that we didn’t do any—it was thick and it was

friable, like it could tear.

And as recommended by most people, that if you cannot do 

the critical view of safety, you go to the other technique, the 

infundibular technique. And we did cholangiograms to get the 

anatomy more clearly. And I did not one but two cholangiograms so 

that I was sure that I was in the right area when I was cutting.

So based on all of these steps which I took and also the way 

I did the operation, I think I did the operation appropriately. 

The Estate cross-examined Dr. Prasad and he acknowledged he learned 

after the fact that he had stapled the common bile duct and clipped the right hepatic 

artery during the surgery, though he had not intended to do so. After moving 

through questions about the surgical report and other medical personnel, Estate 

counsel turned to “questions about the consent form” and possible risks, which 

included bleeding and bowel and ductal injury. 

During closing argument, the defense stated: 

As I’ve said, the standard of care is what a reasonable 

surgeon does based on their training and their education in those 

circumstances.

Dr. Severson told you . . . the steps that Dr. Prasad took were 

careful and met the standard of care. They were what reasonable 

surgeons are taught to do, and they did not do what reasonable

surgeons are taught not to do.

How about Dr. Prasad? He told you that I’ve done about a 

thousand lap choles in my career. That’s a lot of surgeries. How 

many injuries has he had? This one, one out of a thousand. We 

know the complication rate. The known is three out of a thousand.

. . . .

He told you Mr. Anderson came to him. It was a very difficult 

case. He had all of these adhesions, all of this scar tissue. He told 

you a normal—whatever that might be—a normal lap chole takes 
11

about an hour. He took a little over three hours. He told you, and it’s 

documented, he took his time. Dr. Nechtow took his time. They did 

a very tedious dissection and went slowly and carefully. 

And I submit to you that all of those combined, with what I just 

told you, will conclude that Dr. Prasad met the standard of care.

Now, Dr. Feinberg and the plaintiffs say Dr. Prasad should 

have caught his mistake during surgery. How? Well, he should have 

looked in that endo bag. Remember that Dr. Prasad had that purple

stick with the little bag? He puts the gallbladder in it. And Dr. 

Feinberg said he should have opened that up and looked at it.

Well, first of all, Dr. Prasad says, I’ve never opened it up. I’ve 

never taught anybody to open it up. I’ve never observed anybody 

else opening it up.

Dr. Severson says, No, the standard of care doesn’t require 

us to open that up. Why? Well, you might think common sense says, 

we’ll open it and look at it. Dr. Prasad says, I’ve been looking at that

gallbladder. I’ve got the scope in there. I’m looking at my monitors. 

I’ve seen this gallbladder for the last three hours. What am I going 

to see different when I open up that endo bag and look at it with my 

naked eye? Not my pathologist’s eye, who’s dissecting it and 

opening it up and saying the wall of the gallbladder is half a 

centimeter and this and that. He’s looking at it with his naked eye, 

which is what he’s been doing.

So the standard of care does not require him to look at that 

endo bag. What did Dr Severson say? Well, if he would have looked 

at it, it would look like nothing but a big mass of scar build-up. How 

is that going to help Dr. Prasad?

The law says that they have to prove he was negligent, that 

his steps were not reasonable. I took you through, with Dr. Prasad, 

this entire operative report and pointed out every single step he took. 

All of these green marks, step after step. 

After a two-week trial, the case was submitted to the jury. By special verdict 

form, signed by seven of the eight jurors, the jury found Dr. Prasad was not 

negligent.

The Estate filed a motion for new trial, asserting the court had improperly 

allowed Dr. Prasad to opine on the standard of care even though he was not

certified as an expert witness. The Estate summarized their claims as follows:

MR. JIM DUFF: Okay. Some of the testimony that Ms. Nelson 

was referencing regarding Dr. Prasad’s testimony, first, the only time 
12

he was asked whether or not his actions were appropriate was in that 

final direct question on direct examination. 

I haven’t had an opportunity, obviously, to reread it 

thoroughly, but I did a quick word search for “appropriate.” Other 

than objections outside the presence of the jury, that question is the 

first time that was mentioned.

Also, testimony on the standard of care is virtually always 

based on somebody’s personal experience. So personal experience 

and training in and of itself isn’t appropriate. But when you are using 

that personal experience to opine about the appropriateness of the 

care, that’s where—getting back to your original question—that’s 

where it crosses the line.

And then also the questions where Mr. Tom Duff was asking 

Dr. Prasad about the standard of care, that was in the context of the 

informed consent form. And the point that was being made was that 

just because an informed consent form is signed doesn’t mean you 

can perform the surgery negligently.

None of those questions were directed specifically at the 

surgery that was being performed in this case. They were sort of 

general questions about his duties to still perform the surgery

properly.

And also those questions were asked on cross after that 

improper question had already been asked. So you can’t open the 

door after the improper question has already taken place, an answer 

has already taken place.

And then as a final note here, the fact that these improper 

answers and testimony were repeated in closing, that is the source 

of the prejudice. It’s not that, you know, she went over the top and 

Ms. Nelson, you know, mischaracterized his testimony, by any 

means. She did. She simply quoted what Dr. Prasad stated. 

However, that testimony was inappropriate. And by repeating it in 

closing, that’s where you get that heightened source of prejudice.

In its ruling on the motion for new trial, the court concluded:

From the view from the bench Dr. Prasad gave technically expert 

opinion testimony. Although pushing the line, his opinions appeared 

to stay within the scope of his status as a treating surgeon dealing 

with allowed mental impressions contrasted with providing a

standard of care conclusion.

In Carson, the Iowa Supreme court explained that “the 

paramount criterion” when considering the need for Iowa Code 

section 668.11 disclosure from treating physicians “is whether th[e] 

evidence, irrespective of whether technically expert opinion 

testimony, relates to facts and opinions arrived at by a physician in 

treating a patient or whether it represents expert opinion testimony 

formulated for purposes of issues in pending or anticipated litigation.” 
13

Carson v. Webb, 486 N.W.2d 278, 281 (Iowa 1992). Here, the

doctor’s testimony dealt with his idea of him addressing a 

complication as opposed to a breach of the standard of care. [The 

Estate] and their experts put up a great fight to try and meet their 

burden that Defendant was negligent but ultimately fairness was not 

impacted. A new trial is not warranted based on Dr. Prasad’s expert 

opinion testimony.

The Estate appeals, asserting the trial court improperly allowed Dr. Prasad 

to opine on the standard of care during his direct examination, which error was 

compounded in closing argument when defense counsel pointed to Dr. Prasad’s

provided testimony when arguing there was no violation of the standard of care.

II. Scope and Standard of Review.

“We review whether a district court properly admitted [or excluded] expert 

testimony for abuse of discretion.” McGrew v. Otoadese, 969 N.W.2d 311, 319 

(Iowa 2022) (citation omitted). We will not find an abuse of discretion unless the 

trial court exercises its discretion “on grounds or for reasons clearly untenable or 

to an extent clearly unreasonable.” Eisenhauer ex. rel. T.D. v. Henry Cnty. Health 

Ctr., 935 N.W.2d 1, 9 (Iowa 2019) (citation omitted). “Reversal of the district court 

is only required if the [Plaintiffs’] substantial rights were affected.” McGrew, 969 

N.W.2d at 325 (citation omitted).

III. Discussion.

Iowa Code section 668.11 governs the “[d]isclosure of expert witnesses in 

liability cases involving licensed professionals,” and provides:

A party in a professional liability case brought against a licensed

professional pursuant to this chapter who intends to call an expert

witness of their own selection, shall certify to the court and all other 

parties the expert’s name, qualifications and the purpose for calling 

the expert [within set time limits].
14

“Section 668.11 was ‘designed to require plaintiffs to have their proof 

prepared at an early stage in the litigation in order to protect professionals from 

having to defend against frivolous suits’ . . . .” Ronnfeldt v. Shelby Cnty. Chris A. 

Myrtue Mem’l Hosp., 984 N.W.2d 418, 426 (Iowa 2023) (citation omitted). 

Our supreme court has explained that “the paramount criterion” when 

considering the need for section 668.11 disclosure from treating physicians “is 

whether th[e] evidence, irrespective of whether technically expert opinion 

testimony, relates to facts and opinions arrived at by a physician in treating a 

patient or whether it represents expert opinion testimony formulated for purposes 

of issues in pending or anticipated litigation.” McGrew, 969 N.W.2d at 319

(alteration in original) (quoting Carson, 486 N.W.2d at 281). The line is “between 

opinions formed during treatment, which do not trigger an obligation to make an

Iowa Code section 668.11 disclosure, and opinions formed during or in anticipation 

of litigation, which do.” Id. at 320.

The Estate asserts Dr. Prasad’s testimony “crossed the line” into disclosurerequired testimony in two instances: when Dr. Prasad characterized his care and 

treatment as “appropriate,” and when he testified “about what other physicians do 

in similar circumstances.” 

The Estate’s counsel asserted at trial and reasserts here that the defense’s 

use of the word “appropriate” is “just another way of asking him whether he violated 

the standard of care.” In its reply brief, the Estate acknowledges that whether there 

is a breach of the standard of care is an objective inquiry and “technically” 

Dr. Prasad can testify to his subjective opinions but argues this is “infinitesimal 

hairsplitting.”
15

Our focus is on whether Dr. Prasad’s objected-to testimony “relates to facts 

and opinions arrived at by a physician in treating a patient or whether it represents 

expert opinion testimony formulated for purposes of issues in pending or 

anticipated litigation.” Id. at 319.

The trial court determined Dr. Prasad’s testimony did not cross the line into 

expert testimony requiring certification:

Under Iowa law, a treating physician may permissibly testify 

to his or her factual knowledge, mental impressions and opinions that 

are developed during the course of the patient’s treatment and not 

acquired or developed in anticipation of litigation or for trial. Hansen 

v. Cent. Iowa Hosp. Corp., 686 N.W.2d 476, 481 (Iowa 2004). This 

is because the treating physician ordinarily learns facts in a case, 

and forms mental impressions or opinions, long before he or she is 

retained as an expert witness, and often before the parties 

themselves anticipate litigation. Id. Defendants briefed how 

Dr. Prasad’s deposition testimony and trial testimony noted the care 

of Mr. Anderson. The key to this analysis is that it appears that his

opinions are within the scope of his status as a treating surgeon and 

are not opinions that he developed after the fact for purposes of this 

litigation. The grey area is created here because his position as 

Defendant requires some after the fact review.

The [Estate] have noted Dr. Prasad did mention what he has 

observed during other surgeries in those two particular examples.

This court agrees with the Defendant[s’] argument that Dr. Prasad’s 

subjective, personal, education and experience are not necessarily 

synonymous with the objective standard of care, i.e., the “degree of 

skill, care and learning ordinarily possessed and exercised by 

specialists in similar circumstances, and not merely the average skill 

and care of a general practitioner.” Both [the Estate] and

Defendant[s] had well qualified experts to provide the standard of 

what skill is exercised by specialists in similar circumstances as 

required in Jury Instruction No. 15. The court finds that there was 

not a conspicuous effort at trial that the Defendants equated the two. 

This court finds that Dr. Prasad testified as to what he did and what 

his experiences were that impacted his actions in this case. When 

Dr. Prasad was talking about his own personal observations of what 

others do, that was his observation. He had not seen other surgeons 

check the endobag. He had not seen other surgeons dig around the 

impacted area to identify tubular structures. Dr. Prasad did not testify 

to whether those meet the standard of care. He testified those 
16

observations informed a basis for why he did what he did or did not 

do in Mr. Anderson’s case.

Dr. Prasad’s language regarding his treatment detailing 

whether all of the steps and techniques he used were “appropriate” 

provides facts to be evaluated for the standard of care. During trial 

it appeared in using the word “appropriate” he was dealing with his

mental impressions. The jury could accept it or reject it. His 

testimony as a party opponent is judged on his credibility and how 

his description of the circumstances compare to the designated 

experts’ description of the standard of care. Because of the nature 

of surgery and the technical expertise necessary to describe the 

surgery, I find that Dr. Prasad did not cross the line into standard of 

care expert testimony. In fact, one juror found that he was negligent 

in performing the laparoscopic cholecystectomy of Mr. Anderson in 

violation of the standard of care despite Dr. Prasad’s mental 

impressions of what Dr. Prasad believed to be appropriate.

We conclude the court’s reasons were neither clearly untenable or unreasonable.

As discussed in McGrew, the central issue is whether Dr. Prasad formed 

his opinion as a treater or in anticipation of trial. See 969 N.W.2d at 319–20. We 

agree with the trial court Dr. Prasad’s testimony “relates to facts and opinions 

arrived at by a physician in treating a patient.” It is true, Dr. Prasad was looking 

back at the surgery when answering whether he acted “appropriately.” His aftersurgery review he performed the surgery “appropriately” did not comment on 

whether he deviated from or acted consistently with accepted standards of care. 

We find no abuse of discretion in the trial court’s allowing Dr. Prasad’s testimony.

In any event, Dr. Severson testified at length before Dr. Prasad about the 

standard of care and why, in his opinion, Dr. Prasad’s treatment of Anderson met 

the standard of care. Even if we were to find Dr. Prasad’s testimony that he 

performed the surgery “appropriately” was testimony he did not breach the 

standard of care, Dr. Severson had already given the same testimony without 

objection. We do not find the admission of Dr. Prasad’s opinion testimony was 
17

prejudicial so as to warrant a new trial. See Vasconez v. Mills, 651 N.W.2d 48, 57

(Iowa 2002) (ruling even if testimony was admitted erroneously, reversal is not 

warranted if it is merely cumulative of other evidence); see also Est. of Long v. 

Broadlawns Med. Ctr., 656 N.W.2d 71, 88–89 (Iowa 2002) (finding even if

testimony was erroneously admitted, it came after substantially the same evidence 

had been admitted without objection and therefore was not prejudicial). Finding 

no abuse of discretion in the court’s rulings, we affirm.

AFFIRMED.