Hubbard v. State ( 1969 )

LeGRAND, Justice

(dissenting).

I dissent. I am somewhat loath to do so because the authority cited in support of the majority opinion is formidable. However, this is our first encounter with this problem, and I believe it is important to protest against that first step down what I consider to be the wrong road.

Plaintiff brought this action under the Iowa Tort Claims Act under the terms of which the State waived its governmental immunity as to certain torts caused by the negligence of any employee of the state while acting within the scope of his employment. The Act excepts certain claims from its operation. One such exception is any claim arising out of misrepresentation, which has been construed under the federal Tort Claims Act (after which ours is patterned) to include negligent misrepresentation as well as that which is fraudulent.

The majority says this is such a claim, but I cannot see it that way. This is simply a malpractice claim against a veterinarian employed by the state, who was negligent in the performance of his professional duties.

The Act does not define claims which arise out of misrepresentation. We must therefore look to general principles of established law to discover what is excluded under the exception heretofore noted. If this were not a claim under the Tort Act, no one would assert it was one based on misrepresentation. There is abundant authority, both in our decisions and those of other jurisdictions, that plaintiff’s petition here is bottomed, not on misrepresentation, but on negligence. There is nothing in the Act which changes this.

Here the conduct complained of is a faulty diagnosis of plaintiff’s cattle followed by an erroneous report of their condition. The misrepresentation which the majority holds to be covered by the exception in the statute is the very report the veterinarian was required to furnish as soon as he undertook the testing of the cattle. The majority treats the duty to properly test as separable from the duty to accurately report the results of the test.

Until now that has never been the law. In Wambold v. Brock, 236 Iowa 758, 763, 764, 19 N.W.2d 582, a dentist failed to advise a patient she had a broken jaw following an extraction. This failure caused her to neglect seeking treatment which would have minimized her damages. A failure to provide information may be a misrepresentation just as much as providing improper information. Ingham v. Eastern Air Lines, Inc., 2nd Cir., 373 F.2d 227, 239. Yet there the action was based on malpractice, and the failure to give proper advice was considered as part of the negligence.

In Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d 139, we held a physician owed his patient the duty of disclosure, with certain exceptions not material here, and that a doctor who failed to comply with that obligation was guilty of malpractice.

In Wheatley v. Heideman, 251 Iowa 695, 704, 102 N.W.2d 343, and citations, after holding malpractice could consist of an improper diagnosis as well as improper treatment, we noted the doctor had told the minor patient’s mother the eye was not hurt. This was grossly inaccurate and was the result of a negligent diagnosis. Again the misrepresentation did not supersede that negligence as the basis for recovery. It was merely one circumstance in the charge of malpractice against the physican.

I take it there is no doubt that a veterinarian’s duty in his specialty is the same as that of a dentist, physician, or lawyer in his. Morrison v. Altig, 157 Iowa 265, 138 N.W. 510.

Statements to like effect may be found in other jurisdictions. In Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 525, appears this, “A physician who misleads a patient by not only failing to give a warning of reasonable and recognized risks * * * but by affirmatively assuring her that there are no risks, knowing such statement to be untrue, is liable for the harmful consequences * * *. Such a failure * * * [is] malpractice.”

Similarly in Calabrese v. Bickley, 208 Misc. 407, 143 N.Y.S.2d 846, 848, the court said in a case involving a fraudulent misrepresentation by which a physician attempted to conceal his negligent acts, “The gravamen is the malpractice and the concealment merely an item in [the] chain of circumstances causing the damage.”

In California the same principle was applied to a soil-tester who submitted an erroneous report based on a negligent test. It was held one who held himself out to be an expert and who failed to exercise the degree of skill and competence required of members of his profession was liable for his negligence. Incidentally it was there held plaintiff also had an action for misrepresentation. Gagne v. Bertran, 43 Cal.2d 481, 275 P.2d 15, 21.

None of these cases is cited because of any similarity factually to the one now before us, but only to demonstrate that such a claim as plaintiff asserts is not one which arises out of misrepresentation. Instead the misrepresentation has always been important only as bearing on the negligent conduct.

Any other result seems indefensible when it is pointed out that in most instances the services hired are worthless without the ultimate communication of results from the expert to the one who employed him. Usually that is the only purpose for engaging the expert in the first place. To draw a line on one side of which he is responsible for negligence in performing his investigative or diagnostic duties while on the other he is liable only because he told what he did is nothing less than casuistry. See Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 23 A.L.R. 1425.

I can find nothing in our Tort Claims Act which justifies creation of a new and heretofore unrecognized classification of what constitutes negligent misrepresentation. I find that to be repugnant to the avowed purpose of the Act as expressed in Graham v. Worthington, 259 Iowa 845, 860, 146 N.W.2d 626, 636. If an action such as the one now before us was held to be one arising out of the negligence of the wrongdoer, including his erroneous reports of his findings, before the Tort Claims Act was passed, it is still such an action.

The majority relies almost entirely on two federal cases, Hall v. United States, (10 Cir.), 274 F.2d 69, and United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614. It is true they say everything the majority claims of them. However, the majority concedes we are not bound by such decisions. Where, as here, their premise is patently false and their result totally indefensible, we should not follow them simply because they were there first. Later cases such as Hungerford v. United States and Ingham v. Eastern Airlines, Inc., both cited in the majority opinion, which make distinctions more fanciful than real serve to emphasize the confusion which will inevitably result from espousal of the federal rule.

Perhaps it is unnecessary to add I would reverse.

BECKER, J., joins in this dissent.