Todd A. Mulhern, Individually and as Representative of the Estate of Elizabeth M. Von Linden v. Catholic Health Initiatives A/K/A Catholic Health Initiatives Iowa Corp. D/B/A Mercy Franklin Center and/or Mercy Hospital and/or Mercy Psychiatric Services

IN THE SUPREME COURT OF IOWA
No. 08–1478
Filed June 24, 2011
TODD A. MULHERN, Individually and
as Representative of the Estate of
Elizabeth M. Von Linden,
Appellant,
vs.
CATHOLIC HEALTH INITIATIVES
a/k/a CATHOLIC HEALTH INITIATIVES
IOWA CORP. d/b/a MERCY FRANKLIN
CENTER and/or MERCY HOSPITAL
and/or MERCY PSYCHIATRIC SERVICES,
Appellee.
Appeal from the Iowa District Court for Polk County, Donna L.
Paulsen, Judge.
An estate appeals an adverse jury verdict in a medical negligence
action. AFFIRMED.
Andrew J. Stoltze and Bruce H. Stoltze of Stoltze & Updegraff, P.C.,
Des Moines, and Christopher A. Kragnes, Des Moines, for appellant.
Stacie M. Codr and Connie L. Diekema of Finley, Alt, Smith,
Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.
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WATERMAN, Justice.
Elizabeth Von Linden, a successful business executive, took her
own life three weeks after she was discharged as an inpatient from
defendant Mercy Hospital’s psychiatric ward and six days after her
outpatient office visit with Mercy’s psychiatrist. Her husband brought a
wrongful death action against Mercy, alleging negligent care. Mercy
raised defenses, including Von Linden’s comparative negligence. The
trial court allowed the jury to decide their negligence. The jury found
both Mercy and Von Linden negligent and allocated ninety percent of the
total fault to Von Linden and ten percent to Mercy, resulting in a defense
verdict. We are asked to decide whether our state’s comparative fault
act, Iowa Code chapter 668 (2003), permits a jury to compare the fault of
a noncustodial suicide victim with the negligence of the mental health
professionals treating her. We determine Von Linden owed a duty of self-
care as an outpatient, and the district court committed no reversible
error in allowing the jury to compare her fault. We therefore affirm the
judgment for Mercy.
“Suicide has long been the subject of intense religious, ethical,
legal and medical debate.” Brandvain v. Ridgeview Inst., Inc., 372 S.E.2d
265, 271 (Ga. Ct. App. 1988) (citing Victor E. Schwartz, Civil Liability for
Causing Suicide: A Synthesis of Law and Psychiatry, 24 Vand. L. Rev.
217 (1971)). “A medical provider treating a patient with suicidal ideas
presents a uniquely complex situation for comparative fault.”
Champagne v. United States, 513 N.W.2d 75, 78 (N.D. 1994). As
discussed below, courts have reached divergent conclusions on how to
allocate legal responsibility for suicide between the victims and the
mental health professionals treating them. Each case turns on its
uniquely tragic facts. Our resolution under Iowa law is based on the
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record made below and is guided by well-reasoned precedent from other
states where the overwhelming majority of courts allow juries to compare
the fault of a noncustodial patient who commits suicide.
I. Background Facts and Proceedings.
Elizabeth Von Linden, age forty, was in charge of consumer
marketing at a large media company. Her job involved substantial travel
and stress. She had a history of recurrent episodes of severe depression
with interepisode recovery throughout her adult life. During college, she
attempted suicide by slitting her wrists and overdosing on sleeping pills.
She dropped out of college and, for roughly twenty years, was a
functional alcoholic. After attending Alcoholics Anonymous, she stopped
drinking. Her sobriety followed a second suicide attempt by carbon
monoxide poisoning. She went many years with no medical treatment
for her depression.
In late 1999, Von Linden met Todd Mulhern. Mulhern moved in
with Von Linden in 2000. Mulhern and Von Linden were married in May
2002. Mulhern, Von Linden, and his ten-year-old daughter initially lived
in Von Linden’s home in Des Moines. Von Linden and Mulhern then
purchased a larger house on the same block and moved in, but had
difficulty selling her old house. The financial stress of owning two
houses largely fell on Von Linden as the primary breadwinner. This
financial stress coupled with work pressures worsened Von Linden’s
depression, culminating in a suicide attempt on June 6, 2003.
For the two preceding weeks, Von Linden had experienced suicidal
thoughts. That night she decided to take her own life. Von Linden, in
the middle of the night, went downstairs into the garage and taped a
vacuum hose from the tailpipe of her car to run into the back window.
She ingested prescription painkillers and Xanax, turned her car on, and
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fell asleep. The heat from the tailpipe melted the vacuum hose. Mulhern
awoke to the odor of car exhaust. He ran downstairs into the garage to
find Von Linden, responsive but lethargic, in her car. He took her to
Mercy Medical Center’s emergency room.
An emergency room physician assessed Von Linden, conducted lab
tests, and called Mercy Franklin Center—Mercy’s behavioral health
section—for a psychiatric evaluation. In the emergency room,
Von Linden continued to express suicidal ideations by stating, “I wish it
would end” and “I’m sorry I didn’t die.” Von Linden consented, however,
to being hospitalized.
Von Linden was admitted into the psychiatric ward in the early
afternoon of June 6 and spent the next two days there. The medical staff
placed Von Linden on a suicide watch upon her admission.
Dr. Charles Scott Jennisch, a psychiatrist, was her primary physician.
He had not treated her previously. Dr. Jennisch met with Von Linden on
June 6 for several hours. He diagnosed her with recurrent, severe major
depressive disorder and placed her on new medications. He educated
her about the nature of her illness and treatment options. She told him
she had never heard such detailed information before, and it gave her
hope. She asked to have a short hospital stay followed by outpatient
treatment. That night, Von Linden slept well, and the next morning
Dr. Jennisch noted she appeared brighter and more hopeful with
reduced anxiety.
Dr. Jennisch met with Von Linden and Mulhern again on June 7
and discussed in depth her illness and treatment recommendations.
Von Linden told Dr. Jennisch “none of the stressors related to the house
are worth dying for.” She denied any suicidal ideation that day. She
expressed regret for her suicide attempt and confidence about the
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potential to treat her illness. She reiterated she did not want inpatient
treatment. Both she and her husband asked that she return home that
day. Dr. Jennisch discouraged discharge and recommended she remain
hospitalized at least another day. She agreed. He discussed educational
support with her and the transition to outpatient services at his clinic.
He recommended that, after her release as an inpatient, Von Linden
participate in a “partial hospitalization” program from 9 a.m. to 3 p.m.
daily. She reported improvements in her symptoms and said she did not
feel she needed intense inpatient treatment or the partial hospitalization
program. Both she and her husband asked that she return to work as
quickly as possible.
On June 8, Dr. Jennisch met with Von Linden again. Her
condition had markedly improved, and she had met all inpatient
treatment goals. Von Linden and her husband asked that she go home.
Dr. Jennisch spoke with Von Linden about outpatient treatment plans
and gave her written discharge instructions. Von Linden was instructed
to remain on the medications and schedule follow-up visits with
Dr. Jennisch and with a psychologist for therapy. Finally, she was to
attend the “women and self-esteem” and “stress management” group
therapy sessions at Mercy Franklin Center. Dr. Jennisch went over
these instructions with Von Linden. She was given several emergency
numbers, including Dr. Jennisch’s and a Help Center number she was to
call day or night if her condition worsened. Dr. Jennisch “made it clear
to her” she was to call if she had any concerns. Von Linden told
Dr. Jennisch that, “if things changed or deteriorated as opposed to
actually attempting to take her life, . . . she would be very comfortable in
either coming to the Help Center . . . or in calling [his] clinic.” The
discharge summary states “[f]ollow-up and emergency services were
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discussed in detail,” Von Linden “has our emergency phone numbers,”
she is “aware of how to contact us if there are any problems or concerns
as well as the Help Center and emergency resources,” and she “readily
agrees to utilize those.” A nurse also went over the instructions with
Von Linden and Mulhern. Dr. Jennisch discharged Von Linden from the
hospital at 10:15 a.m., and she took those instructions home with her.
The next day, June 9, Von Linden returned to work and scheduled
follow-up appointments with Dr. Jennisch for June 23 and the
psychologist he recommended for July 2. On June 13, Von Linden called
Dr. Jennisch’s office and obtained permission to increase her medication.
Von Linden and Mulhern next met with Dr. Jennisch on June 23.
Dr. Jennisch noted Von Linden was doing better and had tolerated her
new medications without any difficulties. Von Linden reported that she
had only seen small changes since her discharge from the hospital but
had not had any suicidal thoughts. Mulhern reported that she seemed
brighter and better able to laugh and enjoy things. Dr. Jennisch spent
significant time discussing Von Linden’s illness and making
recommendations for her continued care. He discussed with her the
option of returning to the hospital for the intensive outpatient treatment
program, which she declined. Dr. Jennisch “again reviewed emergency
services . . . as well as stress management techniques.” He agreed to see
her again in two weeks and instructed her to call him in the interim if
she had any problems or concerns. Dr. Jennisch and plaintiff’s expert at
trial testified that, as of June 23, she could not be involuntarily
committed under Iowa law. Von Linden scheduled another appointment
to see Dr. Jennisch on July 7.
Meanwhile, Von Linden was attending work every day. Her
supervisor testified at trial that the last day he saw her, June 27, she
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was performing well at work and appeared to be “in a great mood.” Her
work calendar reflected she was planning future appointments. On
June 29, Mulhern left to go play a slow-pitch softball game. Mulhern’s
daughter was playing at a neighbor’s house. At approximately 12:15
p.m., while Mulhern was still gone, his son arrived at the house, let
himself in, made something to eat, and watched TV while he waited for
Mulhern to return. When Mulhern arrived back home, he asked his son
where Von Linden was, and they both began to search for her. His son
ran into the garage and found Von Linden. She had committed suicide
by hanging herself from a pipe using a chain and a rope. There is no
evidence or claim she called or attempted to use the emergency phone
numbers after seeing Dr. Jennisch on June 23.
Mulhern, individually and on behalf of Von Linden’s estate, filed a
petition against Catholic Health Initiatives d/b/a Mercy Franklin Center,
and/or Mercy Hospital and/or Mercy Psychiatric Services (Mercy),
alleging that Mercy’s negligence was a proximate cause of Von Linden’s
death. Mercy alleged as an affirmative defense that Von Linden’s
conduct, in whole or in part, proximately caused her death. Mercy’s
answer affirmatively stated, “[T]his action is governed by Chapter 668 of
the Code of Iowa.”
The case proceeded to trial. The evidence included conflicting
expert testimony regarding whether the brevity of Von Linden’s
hospitalization and the quality of care she received while hospitalized
contributed to her ultimate suicide. At the close of the evidence, the
estate objected to the court instructing the jury that it could compare
Von Linden’s fault to the fault of Mercy. It also objected to the court
giving a sole proximate cause instruction. The court overruled these
8
objections. Accordingly, on the verdict form, the jury was permitted to
allocate a percentage of fault to Von Linden.
The estate also requested three jury instructions that the court
declined to submit: an “eggshell plaintiff” instruction, a second
instruction that would allow the jury to consider the result of treatment
as evidence of negligence, and a third on the lost-chance-of-survival
doctrine.
The estate did not name Dr. Jennisch as a defendant, but claimed
Mercy was vicariously liable for his acts because he was Mercy’s agent
when he treated Von Linden. The court submitted a special interrogatory
on this issue.
The jury found Mercy, Dr. Jennisch, and Von Linden negligent and
their negligence proximately caused the estate’s damages. It found that
Von Linden’s suicide was not the sole proximate cause of the estate’s
damages. The jury allocated ninety percent of the total fault to
Von Linden and five percent each to Mercy and Dr. Jennisch. The jury
found Dr. Jennisch to be Mercy’s agent. The district court entered
judgment in favor of Mercy because the jury found Von Linden’s fault
exceeded fifty percent of the total fault.
The estate moved for a new trial based on instructional errors. The
district court overruled the motion, and the estate appeals.
II. Issues.
The estate raises five issues for our review. First, the estate argues
the district court erred by instructing the jury it could compare the fault
of Von Linden with the fault of Mercy. Second, the estate claims the
district court erred by instructing on sole proximate cause. Third, the
estate argues the district court erred in failing to submit its “result of
treatment” instruction. Fourth, it contends the district court erred in
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failing to give the jury an “eggshell plaintiff” instruction. Finally, it
asserts the district court erred by failing to instruct the jury on the lost-
chance-of-survival doctrine.
III. Scope of Review.
We review a claim that the district court gave improper jury
instructions for correction of errors at law. Summy v. City of Des Moines,
708 N.W.2d 333, 340 (Iowa 2006). We review the related claim that the
district court should have given a party’s requested instructions for an
abuse of discretion. Id. “Error in giving or refusing to give a particular
instruction does not warrant reversal unless the error is prejudicial to
the party.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).
IV. Comparative Fault.
The primary issue is whether the district court committed
reversible error in submitting Mercy’s defense of the comparative fault of
Von Linden. The marshaling instruction (No. 16) for Mercy’s comparative
fault defense stated:
The defendant claims the conduct of Elizabeth
Von Linden in taking her own life was a proximate cause of
plaintiff’s damages. In order to establish this defense the
defendant must prove all of the following propositions.
1. Elizabeth Von Linden was at fault in the taking of
her own life.
2. The conduct of Elizabeth Von Linden was a
proximate cause of plaintiff’s damages.
If the Defendant has failed to prove either of these
propositions, the Defendant has not proved its defense. If
the Defendant has proved both these propositions, then you
will assign a percentage of fault against the Plaintiff and
include the Plaintiff’s fault in the total percentage of fault
found by you in answering the special verdicts.
Instruction No. 8 stated, “Fault means one or more acts or
omissions towards the person of the actor or of another which
constitutes negligence.” Instruction No. 9 stated:
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“Negligence” means failure to use ordinary care.
Ordinary care is the care which a reasonably careful person
would use under similar circumstances. “Negligence” is
doing something a reasonably careful person would not do
under similar circumstances, or failing to do something a
reasonably careful person would do under similar
circumstances. 1
The estate objected to the instructions and submission as follows:
Plaintiff objects to the giving of Instruction Nos. 16,
16A, 16B, and 17 dealing with proximate causation of
plaintiff’s damages being caused by the decedent Elizabeth
Von Linden. In that — and the sole proximate cause in
those instructions fail to take into consideration and fail —
and should not be given because in this record the evidence
is that this conduct of the defendant is the one that caused
this to happen and that anything that Elizabeth Von Linden
did thereafter is a result and cumulative upon the conduct of
the defendant — of the defendant in this case. Therefore, it’s
inappropriate to be instructing the jury in connection with
that or any kind of comparative fault concepts in this case.
Furthermore, Your Honor, we object to the jury verdict
form to the extent that the verdict form submits the issue of
fault of Elizabeth Von Linden as being comparative or being
a proximate cause and do not believe that there should be
anything in Question No. 9 assessing fault to Elizabeth
Von Linden.
The trial court overruled the estate’s objection. The jury was
informed, as required by Iowa Code section 668.3(5), that the estate
would be barred from recovery if Von Linden was found more than fifty
percent at fault. The jury ultimately found Von Linden ninety percent at
fault, resulting in entry of judgment in Mercy’s favor.
The estate’s brief supporting its motion for new trial and its
appellate briefing clarify the reasons it argues the district court erred in
submitting Von Linden’s comparative fault. First, the estate contends
that suicide is an intentional act that cannot be compared under Iowa
1Mercy did not request submission of a specification of fault or instruction on
Von Linden’s recklessness, unreasonable assumption of risk, failure to avoid an injury,
or to mitigate damages.
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Code chapter 668 with Mercy’s negligence. Second, relying on case law
from other jurisdictions, the estate contends “there can be no
comparative negligence where the defendant’s duty of care includes
preventing any self-abusive or self-destructive acts that cause the
plaintiff’s injury.” Third, the estate argues Von Linden lacked the mental
capacity to be found negligent or responsible for her actions at the time
of her suicide. We address that issue first because, if the estate is
correct, it would be unnecessary to decide the other challenges to the
submission of Von Linden’s fault.
A. Did the Estate Establish Von Linden Lacked the Mental
Capacity to Be Found Negligent? The estate contends the district
court erred in submitting Von Linden’s comparative negligence because,
at the time of her suicide, she lacked the mental capacity to be found
negligent. Mercy contends the estate failed to preserve error on this
“mental incapacity” argument that the estate raised for the first time in
its motion for a new trial. The estate’s general objection to the
submission of comparative fault did not specifically urge that Von Linden
lacked the mental capacity to be found negligent, nor did the estate
request a jury instruction on her incapacity or diminished capacity.
Although we have doubts whether error was preserved on this issue, we
decide it on the merits.
Whether a person suffering from a mental disease lacks the
capacity to be found negligent is generally a question of fact. See
Borchard v. Anderson, 542 N.W.2d 247, 249 (Iowa 1996) (“The issue
whether a person is mentally ill for purposes of the tolling statute is
factual.”); cf. Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682,
684–85 (Iowa 1993) (whether a child older than age three is capable of
negligence is a factual determination). The estate argues the very fact of
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Von Linden’s suicide establishes her mental incapacity because a person
who is a danger to herself can be involuntarily committed. Iowa R. Crim.
P. 2.22(8)(b), (e). Her suicide alone, however, does not preclude a finding
of comparative negligence, as the Illinois Supreme Court recognized in
Hobart v. Shin:
[P]eople generally have a duty to exercise ordinary care for
their own safety. We are not prepared to hold . . . that this
principle is inapplicable to all patients who commit suicide
while under treatment for suicidal tendencies. Rather, we
believe the better-reasoned approach is as another court has
written on this subject:
“[T]he issue of contributory negligence of a mentally
disturbed person is a question of fact; unless, of course, the
evidence discloses that the person whose actions are being
judged is completely devoid of reason. If he is so mentally ill
that he is incapable of being contributorily negligent, he
would be entitled to have the jury so instructed . . . . But
only in those cases in which the evidence would admit to no
other rational conclusion would plaintiff be entitled to have
the issue determined as a matter of law.”
705 N.E.2d 907, 910–11 (Ill. 1998) (quoting De Martini v. Alexander
Sanitarium, Inc., 13 Cal. Rptr. 564, 567 (Ct. App. 1961) (citation
omitted)).
We conclude the estate failed to establish that Von Linden was so
mentally incapacitated she was incapable of being found negligent as a
matter of law. At the time of her death, Von Linden was being treated as
an outpatient and working at her executive-level job. Her suicide
occurred three weeks after her discharge from the hospital and six days
after her office visit with Dr. Jennisch. This scenario is unlike custodial
cases involving the death or injury of an institutionalized patient
incapable of self-care. See Tomfohr v. Mayo Found., 450 N.W.2d 121, 125
(Minn. 1990) (holding on the facts of that case that the mentally ill
patient admitted to locked hospital ward for suicidal ideations “lacked
the capacity to be responsible for his own well being”). Plaintiff’s own
13
expert testified that, at the time of her last visit with Dr. Jennisch on
June 23, Von Linden was not a candidate for involuntary civil
commitment. Indeed, her supervisor testified that on June 27, two days
before her suicide, she was performing her job well. See Borchard, 542
N.W.2d at 249–50 (holding as a matter of law plaintiff failed to establish
mental disability to toll statute of limitations while she was holding a job
and raising children).
Other courts have recognized that juries should be instructed to
consider the diminished mental capacity of the suicidal patient. Maunz
v. Perales, 76 P.3d 1027, 1035 (Kan. 2003) (jury should consider mental
capacity of suicide victim in evaluating comparative fault). We need not
determine whether the estate would have been entitled to a jury
instruction on Von Linden’s diminished mental capacity, however,
because the estate never requested such an instruction at trial.
Accordingly, the estate is not entitled to a new trial on grounds of
Von Linden’s mental incapacity.
B. Does Iowa Chapter 668 Allow a Comparative Fault Defense
Based on an Act of Suicide? The estate argues suicide is an intentional
act that cannot be compared with Mercy’s negligence because intentional
torts were omitted from the definition of “fault” in Iowa Code section
668.1(a). Specifically, the estate argues in this appeal:
As negligence and an intentional tort cannot be compared, a
comparative fault instruction should not have been
submitted in this case. Negligence is not a defense to an
intentional tort. Tratchel v. Essex Group, Inc., 452 N.W.2d
171, 180–81 (Iowa 1990). A suicide likewise is not an
appropriate basis for an assessment of comparative fault to
be compared with treating mental health professionals’
deviation from the standard of care with regard to a
plaintiff’s mental health condition. In this medical
negligence case, an intentional act of suicide is not a proper
factual basis upon which to submit comparative fault.
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The estate’s objection to the submission of Von Linden’s comparative
fault at trial did not include this specific argument. Mercy’s appellate
brief, however, concedes error was preserved, so we will decide this
question on the merits.
Whether Iowa Code chapter 668 allows mental health professionals
to raise a comparative fault defense based on their patient’s act of suicide
is a question of first impression in Iowa. The answer is a matter of
statutory interpretation.
The purpose of statutory interpretation is to determine the
legislature’s intent. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).
“The first step in ascertaining the true intent of the legislature is to look
at the statute’s language.” Estate of Ryan v. Heritage Trails Assocs., Inc.,
745 N.W.2d 724, 729 (Iowa 2008). When the statute’s language is plain
and unambiguous, we will look no further. Id. at 730. We determine the
legislature’s intent by the words the legislature chose, not by what it
should or might have said. State v. Wiederien, 709 N.W.2d 538, 541
(Iowa 2006). We also consider the legislative history of a statute when
ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366 (Iowa
2006). We may not extend, enlarge, or otherwise change the meaning of
a statute under the guise of construction. Auen v. Alcoholic Beverages
Div., 679 N.W.2d 586, 590 (Iowa 2004). In construing our comparative
fault act, “[w]e seek a reasonable construction that will accomplish the
purpose of the legislation and avoid absurd results.” Hagen v. Texaco
Ref. & Mktg., Inc., 526 N.W.2d 531, 542–43 (Iowa 1995).
We begin with a review of the history of chapter 668 to put the
operative statutory language in context. At common law, a plaintiff’s
contributory negligence was a complete bar to recovery. Goetzman v.
Wichern, 327 N.W.2d 742, 744 (Iowa 1982), superseded by statute, Iowa
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Code ch. 668. In Goetzman, we replaced the common law bar with the
doctrine of pure comparative negligence “under which an injured party’s
recovery is diminished in proportion to that party’s contributory
negligence, and recovery is not barred unless the injured party’s
negligence is the sole proximate cause of the damages.” Id. The
legislature responded the following year by enacting the Comparative
Fault Act, Iowa Code chapter 668. 1984 Iowa Acts ch. 1293. We have
noted “[b]y its terms, the purpose of the comparative fault act is to
establish ‘comparative fault as the basis for liability in relation to claims
for damages arising from injury to or death of a person or harm to
property.’ ” Waterloo Sav. Bank v. Austin, 494 N.W.2d 715, 717 (Iowa
1993) (quoting 1984 Iowa Acts ch. 1293). We have described the
legislative intent underlying chapter 668 as follows:
In general, the purpose of section 668.3 is to make
defendants pay in proportion to their fault. Correspondingly,
any reduction in a plaintiff'’s recovery represents a way of
making the plaintiff “pay” for his or her proportional
responsibility. In other words, section 668.3(1) prevents a
plaintiff from being compensated for fault that he or she
should fairly bear.
Godbersen v. Miller, 439 N.W.2d 206, 208 (Iowa 1989) (citation omitted).
Here, the estate seeks a full recovery from Mercy for Von Linden’s
self-harm, without any reduction for her own responsibility. We find no
support for that outcome in the text, history, or purpose of chapter 668.
1. Does suicide fall within the definition of fault in section 668.1(1)?
The fighting issue is whether Von Linden’s suicide can be considered as
fault under chapter 668. The legislature defined fault as
one or more acts or omissions that are in any measure
negligent or reckless toward the person or property of the
actor or others, or that subject a person to strict tort
liability. The term also includes breach of warranty,
unreasonable assumption of risk not constituting an
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enforceable express consent, misuse of a product for which
the defendant otherwise would be liable, and unreasonable
failure to avoid an injury or to mitigate damages.
Iowa Code § 668.1(1) (emphasis added).
Because Von Linden’s fault was submitted under a negligence
theory, we must decide whether her act of taking her own life is an “act[]
or omission[] that [is] in any measure negligent” within the meaning of
section 668.1(1). The Iowa legislature adopted the definition of fault
verbatim from the Uniform Comparative Fault Act, section 1. The
Uniform Act and its Iowa counterpart omit intentional torts from the
definition of fault. The comment to the Uniform Act states the act does
not apply “in a case in which the defendant intentionally inflicts the
injury on the plaintiff.” Unif. Comparative Fault Act § 1 cmt., 12 U.L.A.
125, 126 (2008). No comment addresses a plaintiff’s intentional self-
harm.
It is important to note that the jury was not asked to compare
Mercy’s negligence with an intentional tort by Von Linden, such as
battery. Rather, Mercy based its defense on Von Linden’s negligence.
The estate is not permitted to change how Mercy framed its defense from
one of negligence to an intentional tort in order to bar the defense. The
estate argues Von Linden’s suicide cannot be considered negligent
because it is an intentional act. This argument rests on a false
premise—that negligent conduct cannot include intentional self-harm.
The district court correctly defined “negligence” in jury instruction No. 9:
“Negligence” means failure to use ordinary care. Ordinary
care is the care which a reasonably careful person would use
under similar circumstances. “Negligence” is doing
something a reasonably careful person would not do under
similar circumstances, or failing to do something a
reasonably careful person would do under similar
circumstances.
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Clearly, a reasonably careful person would not hang herself. We
hold the act of suicide can be found “negligent” within the meaning of
section 668.1(1). Support for our conclusion that negligence
encompasses intentional conduct is found in the Restatement (Third) of
Torts: Apportionment of Liability. “Plaintiff’s negligence can include
conduct that is reckless, grossly negligent, or intentional.” Restatement
(Third) of Torts: Apportionment of Liability § 3, cmt. a, at 29 (2000). The
concept of negligence contemplates that every person must act as a
reasonable person would have acted under the same or similar
circumstances. Id. § 3, at 29. The same standard of care that applies to
a defendant also applies to a plaintiff when assessing contributory
negligence. Id. § 3, cmt. a, at 29–30. If a person acts with intent to
cause harm, the person necessarily breaches a duty to act as a
reasonable person. Accordingly, within the context of a claim for
damages based on negligence, conduct by the plaintiff that was intended
to cause self-harm constitutes an act that is “in any measure negligent
. . . toward the . . . actor” because a person who intentionally causes
harm also fails to act as a reasonable person. Iowa Code § 668.1(1).
The drafting history of chapter 668, based on the Uniform
Comparative Fault Act, provides further support for our conclusion that
the intentional nature of conduct does not preclude a comparative fault
defense when “one or more acts or omissions” of the party “in any
measure” fall within a form of fault expressly included in section
668.1(1). Suicide falls easily within the term “unreasonable assumption
of risk” found in section 668.1(1). Our court has relied on the drafter’s
comments to the Uniform Act in construing the Iowa act. See, e.g.,
Baldwin v. City of Waterloo, 372 N.W.2d 486, 493 (Iowa 1985). The
drafters of the Uniform Act said this about assumption of risk:
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“Assumption of risk” is a term with a number of different
meanings—only one of which is “fault” within the meaning of
this Act. This is the case of unreasonable assumption of
risk, which might be likened to deliberate contributory
negligence and means that the conduct must have been
voluntary and with knowledge of the danger.
Unif. Comparative Fault Act § 1 cmt., 12 U.L.A. 125, 126 (2008). The
drafters thereby equate “assumption of risk” with “deliberate
contributory negligence,” encompassing voluntary conduct undertaken
with knowledge of the danger.
The Washington Comparative Fault Act’s definition of “fault” is
identical to Iowa’s. Wash. Rev. Code § 4.22.015 (2005). Yet despite the
omission of intentional torts from that definition, in Gregoire v. City of
Oak Harbor, five of nine justices on the Washington Supreme Court
concluded a suicidal inmate’s fault could be compared with his negligent
jailer’s, if on remand the jury did not find the jail assumed plaintiff’s duty
of self-care during his incarceration. 244 P.3d 924, 937 (Wash. 2010)
(Madsen, C.J., concurring in part, dissenting in part) (“[A]bsent proof
that the jail assumed Gregoire’s duty of self-care, the trial court on
remand should be free to consider whether to instruct the jury on
comparative fault.”); id. at 938 n.1 (Alexander, J., dissenting) (same).
The four-justice plurality concluded that the jailer’s special duty to an
inmate precluded submission of comparative fault defenses, without
attributing that result to the omission of intentional torts from the
comparative fault act. Id. at 932.
Our conclusion that suicide may constitute negligence within the
meaning of section 668.1(1) is supported by the majority of jurisdictions
holding that, notwithstanding the intentional nature of the act of suicide,
the jury is permitted to compare the negligence of the noncustodial
suicide victim with the fault of the defendant medical professional
19
treating her. See, e.g., Sheron v. Lutheran Med. Ctr., 18 P.3d 796, 801
(Colo. App. 2000) (“[W]e hold that a patient who is treated by health care
providers for suicidal ideations, and who later commits suicide, may be
found comparatively negligent or at fault . . . .”); Brandvain, 372 S.E.2d
at 275 (holding comparative fault of suicidal patient was a question for
the jury); Hobart, 705 N.E.2d at 911 (finding “the better-reasoned
approach” is to allow physician to raise defense of the patient’s
negligence when mental capacity is a question of fact); Maunz, 76 P.3d at
1035 (holding trial court correctly submitted defense of comparative
negligence in malpractice action against psychiatrist arising from suicide
several days after discharge from hospital); Champagne, 513 N.W.2d at
79 (“Comparison of fault between a suicide victim and a defendant, who
has a duty of medical care toward that victim, is generally for the trier of
fact.”). These jurisdictions compared the fault of the noncustodial
suicidal patient regardless of whether the respective state law allows a
comparative fault defense to intentional torts. 2
The lone outlier is the Tennessee Supreme Court’s decision in
White v. Lawrence, 975 S.W.2d 525, 531–32 (Tenn. 1998) (physician’s
“liability may not be reduced by comparing his negligent conduct with
2The North Dakota Comparative Fault Act expressly includes “willful conduct” in
its definition of fault. Champagne, 513 N.W.2d at 79 (“ ‘Fault’ now includes an
intentional act.”). The other jurisdictions, like Iowa, hold that comparative negligence is
not a defense to an intentional tort. Slack v. Farmers Ins. Exch., 5 P.3d 280, 285 (Colo.
2000) (noting Colorado’s “comparative negligence statute refers only to the negligence of
the victim and the negligence of the tortfeasor”); Terrell v. Hester, 355 S.E.2d 97, 98
(Ga. Ct. App. 1987) (holding comparative fault instruction as to plaintiff’s negligence
was inappropriate where plaintiff was battered); Mother Earth, Ltd. v. Strawberry Camel,
Ltd., 390 N.E.2d 393, 405 (Ill. App. Ct. 1979) (“[I]t is well-settled that an action for an
intentional tort cannot be defeated by an assertion of negligence on the part of the
plaintiff.”); Lynn v. Taylor, 642 P.2d 131, 135 (Kan. Ct. App. 1982) (noting there is “no
authority for including an intentional tort such as fraud within the ambit of
comparative fault principles”). Nevertheless, the courts in those jurisdictions allow
juries to compare the fault of the noncustodial suicidal patient.
20
the decedent’s intentional act of committing suicide”). White is the only
noncustodial suicide case cited by the estate in support of the position
the district court erred in submitting the comparative fault defense. In
White, a depressive alcoholic shot himself four hours after leaving an
emergency room. Id. at 527–28. A narrow majority of three justices
relied exclusively on custodial cases to disallow a comparative fault
defense based on harm the psychiatrist had a duty to prevent,
concluding the “same principles” applied “with equal force” to the
outpatient suicide. Id. at 531. The majority noted practical difficulties
“allocating fault between negligent and intentional acts [that] are
different in degree, in kind, and in society’s view of the relative culpability
of each act.” Id.
Two justices dissented in part. Justice Drowata stated:
I disagree, however, with the majority’s conclusion that
the decedent’s intentional act of committing suicide may not
be considered in determining relative degrees of fault. The
majority’s holding that the negligence of the defendant may
not be compared with the intentional conduct of the
decedent in taking his own life in assessing fault is
inconsistent with the fundamental principle of comparative
fault of linking liability with fault. Therefore, I respectfully
dissent from the majority’s decision.
Id. at 532 (Drowata, J., concurring in part, dissenting in part). Similarly,
Justice Holder dissented to the extent the majority opinion is read to
preclude a comparative negligence defense in an appropriate case,
stating “[a] patient’s negligent acts or omissions have always been
available as a defense.” Id. at 534 (Holder, J., concurring in part,
dissenting in part).
The Kansas Supreme Court expressly declined to follow White for
reasons we find persuasive. See Maunz, 76 P.3d at 1033. The Maunz
court concluded custodial cases are “of dubious value” in adjudicating
21
comparative fault in an outpatient setting. Id. at 1032. The Maunz court
aptly observed that, when a “known, actively suicidal patient is
hospitalized, the hospital and health care providers assume the patient’s
duty of self-care.” Id. By contrast, patients who are treated on an
outpatient basis “generally have a duty to exercise ordinary care for their
own safety.” Id.
We find the Maunz court’s approach to be a better fit with Iowa’s
law of comparative fault. The Maunz court recognized a comparative
fault defense in a noncustodial suicide case in part because the “state
legislature has statutorily established a policy of comparing the
negligence of all persons involved in a civil wrong, in one trial, and
awarding damages in tort based on comparative fault.” Id.; see also
Sheron, 18 P.3d at 801 (to withhold defense of patient’s comparative
negligence “would ignore the strong policy in Colorado of apportioning
fault in tort actions”); Hobart, 705 N.E.2d at 910–11 (relying on Illinois
comparative fault statute to conclude suicidal plaintiff owed duty of care
for her own safety). Similarly, “Iowa’s comparative fault statute expressly
states that the fault of other parties is to be compared in cases of
negligence, recklessness, and strict liability.” Jahn v. Hyundai Motor Co.,
773 N.W.2d 550, 560 (Iowa 2009) (declining to find an exception to the
application of comparative fault principles in product liability enhanced
injury cases because “the legislature has not provided for such an
exception”).
We recognize policy arguments exist for creating an exception to
the comparative fault approach when the defendant owed the plaintiff a
duty to protect the plaintiff from harm. We declined to recognize an
exception in Jahn, even though a similar policy argument supported
denying the motor vehicle manufacturer in a crashworthiness case a
22
comparative fault defense based on the driver’s negligence. A reasonable
legislator could conclude that vehicle manufacturers must foresee and
protect against collisions and that their incentive to build in safety
should not be diluted by allowing jurors to compare the fault of careless
drivers. Similarly, a reasonable legislator could conclude that mental
health practitioners with a duty to prevent suicide should be denied a
comparative fault defense when the patient kills herself. The legislature,
however, created no such exceptions in the Iowa Comparative Fault Act,
and it is not our prerogative to rewrite the statute to do so.
Accordingly, we construe chapter 668 to permit a comparative fault
defense in a medical malpractice action arising from a noncustodial
suicide.
2. Does the Tratchel rule require a new trial? In Tratchel, we held
chapter 668 did not allow a comparative fault defense to an intentional
tort claim of fraud. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 180–
81 (Iowa 1990), abrogated on other grounds by Comes v. Microsoft Corp.,
775 N.W.2d 302, 310 (Iowa 2009). The estate contends that the Tratchel
rule precludes Mercy from raising a comparative fault defense to
Von Linden’s intentional act of suicide. Tratchel remains good law for the
proposition that an intentional tortfeasor cannot reduce his liability by
raising a defense of the victim’s comparative negligence. Tratchel,
however, does not support the result sought by the estate.
Tratchel arose from a liquid petroleum gas explosion. Id. at 173.
Carl Tratchel purchased a gas furnace equipped with a gas control unit
manufactured by Essex. Id. The gas was turned off for a period when
the house was vacant. Id. Carl returned on a cold autumn day and lit a
match to start the furnace, resulting in an explosion that badly burned
23
Carl and his mother. Id. The Tratchels sued multiple defendants; all but
Essex settled. The case went to the jury as follows:
At the close of the evidence, the trial court submitted
special verdicts and interrogatories which incorporated
plaintiffs’ three theories of liability against Essex. Plaintiffs
alleged Essex manufactured a defective gas control unit and
sought recovery based on: (1) strict liability; (2) negligence;
and (3) fraud due to the withholding of facts about known
product defects which misled defendant’s customers and
ultimately the consumers. On the strict liability and
negligence counts, the court submitted a special verdict
allocating fault to Essex, Carl and the settling defendants.
The jury returned verdicts in favor of the plaintiffs on all
three theories of liability, allocating fifty percent of the fault
to Essex, one percent to Carl and the remaining forty-nine
percent to the settling defendants except Fisher Controls,
which was found faultless.
Id. at 174. The district court entered judgment against Essex on the
fraud theory for 100% of plaintiffs’ damages without any reduction for
the comparative fault of Carl or the settling defendants. Id. The district
court allowed a pro tanto (dollar for dollar) setoff for the amounts
recovered by the Tratchels from the settling defendants. We affirmed. Id.
at 181. We noted that “the tort of fraud is not mentioned in chapter
668.” Id. at 180. In holding the district court “correctly rejected the
application of comparative fault to the fraud claim,” we observed:
Prior to the adoption of chapter 668, our case law held that
negligence is not a defense to fraud or to an intentional tort.
Had the legislature intended chapter 668 to cover fraud
actions, it could have easily included fraud in section 668.1.
Id. at 180–81 (citations omitted).
Tratchel teaches that claims outside the scope of chapter 668 are
governed by Iowa common law. For that reason, Tratchel allowed the
nonsettling defendant, Essex, a complete setoff of the settlement
amounts under the common law pro tanto rule instead of applying
24
chapter 668 to reduce plaintiffs’ fraud recovery by the forty-nine percent
of fault the jury attributed to the settling defendants. Id. at 181.
This “default to the common law” approach is also illustrated in
Carson v. Webb, 486 N.W.2d 278, 280 (Iowa 1992), holding section
668.14, the statutory modification of the collateral source rule, did not
apply to an action for assault and battery because intentional torts are
not included in section 668.1(1)’s definition of fault. We concluded the
district court erred in allowing evidence of medical insurance payments
under that section because the common law collateral source rule
governed in intentional tort cases. Id. In other words, if chapter 668 is
inapplicable to a particular tort claim, the common law governs. This
does not help the estate because Iowa common law allowed no recovery
for intentional self-harm absent a special custodial relationship. See
Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 182 (Iowa 1991)
(“Traditionally suicide has been considered an intentional or intervening
act for which the tortfeasor cannot be held responsible”—noting
exception “where the decedent is confined in a hospital or jail.”).
The drafters of the Uniform Act, and in turn the Iowa legislature,
chose to refrain from giving intentional wrongdoers—who are 100% liable
for their harm under common law—a break by allowing them to raise a
statutory defense of their victim’s negligence. See Flood v. Southland
Corp., 616 N.E.2d 1068, 1071–72 (Mass. 1993) (concluding intentional
torts were omitted from that state’s comparative fault act because a
“contrary conclusion would result in [comparative negligence] reducing
plaintiffs’ recoveries in cases to which the concept of contributory fault
had no common law application, an unlikely legislative intention”). This
leaves the common law outcome intact—a party is fully responsible for
intentional harm notwithstanding the opposing party’s negligence. The
25
Iowa legislature is presumed to know the state of the law at the time of
enactment. Slager v. HWA Corp., 435 N.W.2d 349, 353–54 (Iowa 1989)
(holding dram defendant not entitled to a comparative fault defense
under chapter 668 because negligence was not a defense to the dram
statute when the comparative fault act was enacted).
We find no comment or indication in the Uniform Act that the
drafters intended the omission of intentional torts to allow a plaintiff a
full recovery for her own intentional harm. This legislative choice—to
withhold the benefits of the comparative fault act from intentional
wrongdoers—is a far cry from the estate’s position that a plaintiff
committing an intentional act is to be exonerated from any accountability
for the resulting self-harm in her action against a negligent defendant.
The estate cites no Iowa case, nor have we found one, that bars a
negligent defendant from raising a defense based on the plaintiff’s own
intentional act. The estate’s argument would lead to a “heads I win, tails
you lose” situation in which a defendant who commits an intentional tort
could not raise the plaintiff’s fault, but a plaintiff who commits an
intentional tort could not have its own fault raised against it.
Significantly for present purposes, the Iowa legislature adopted a
modified system of comparative fault under which a plaintiff found over
fifty percent at fault was barred from recovery. Iowa Code § 668.3(1)(b).
Chapter 668 legislatively overruled Goetzman’s “pure” comparative fault
system under which a plaintiff found ninety percent at fault could still
recover ten percent of his damages. The Iowa legislature thus made a
conscious policy choice that a plaintiff whose negligence is found to
exceed fifty percent of the total fault cannot recover any damages from a
negligent defendant. We conclude that the same legislature did not
26
intend the same statute to require a negligent defendant to pay 100% of
the damages a plaintiff intentionally inflicts.
We refrain from construing our comparative fault act to reach an
absurd result. Hagen, 526 N.W.2d at 542–43. Under the estate’s
interpretation of the Act, a plaintiff who intentionally causes damage
could recover in full, even though a merely negligent plaintiff found over
fifty percent at fault would be barred from any recovery. This leads to
absurd results. For example, a plaintiff who carelessly, but accidentally,
sets her home ablaze would have her recovery against a negligent fire
protection service barred or reduced by her own comparative fault; yet a
homeowner who intentionally sets her dwelling ablaze could recover in
full.
The estate’s position is not supported by Stevens v. Des Moines
Independent Community School District, 528 N.W.2d 117 (Iowa 1995).
That case merely held the district court erred in submitting an all-or-
nothing instruction on superseding cause in the plaintiff-student’s
negligence action against a school for failing to prevent a foreseeable
assault by another student. Id. at 120–21. The case did not adjudicate
or even discuss comparative fault, nor is chapter 668 even mentioned.
The case law involving intentional acts of third parties is equally
inapposite. Those cases are distinguishable because the comparative
fault at issue here is the plaintiff’s, not a nonparty or third-party
tortfeasor blamed for intentionally causing the plaintiff’s harm.
For the foregoing reasons, if suicide is outside the scope of chapter
668, the estate would not be entitled to a new trial because recovery for
Von Linden’s intentional self-harm is barred at common law. Tratchel
does not require a new trial.
27
C. Does the Treater’s Duty to Prevent Suicide Preclude a
Comparative Fault Defense Based on That Occurrence? The estate
contends Mercy was negligent in allowing Von Linden’s premature
discharge from her initial hospitalization and should not be permitted to
raise a defense based on the very occurrence of the suicide it had a duty
of care to prevent. Mercy, however, presented credible expert testimony
Von Linden’s discharge from the hospital on June 8 was medically
appropriate. Von Linden remained an outpatient until her suicide on
June 29. Experts for both sides agreed that, as of June 23, her last
outpatient visit with Dr. Jennisch, Von Linden was not a candidate for
involuntary civil commitment. To outward appearances, she was doing
well and, indeed, was performing her executive-level job. Accordingly,
this case is readily distinguishable from custodial suicide cases involving
the death of an institutionalized patient or inmate.
Courts in other jurisdictions have withheld a comparative fault
defense in custodial suicide cases because the hospital had assumed the
patient’s duty of self-care. See, e.g., Tomfohr, 450 N.W.2d at 125 (noting
the patient “cannot be held responsible in whole or in part for the breach
of the duty to exercise care for his own well-being because the hospital
had already assumed that duty”). The Tomfohr court expressly limited its
holding to the custodial setting:
[W]e wish to stress that this ruling is limited to the type of
factual situation presented by this case, to-wit, an attempted
suicide committed by a mentally ill patient admitted to a
locked hospital ward where the medical staff was aware of
his suicidal ideations.
Id. As noted above, the overwhelming majority of cases involving
noncustodial suicide have held that the outpatient owes a duty of self-
28
care. The North Dakota Supreme Court rejected the very argument made
by the estate here:
We are not persuaded by the Champagnes’ argument
that, when a patient’s act of suicide is a foreseeable result of
a medical provider’s failure to treat reasonably to prevent the
suicide, it is never appropriate to compare the victim’s act of
suicide with the medical provider’s fault. Rather, if the
evidence shows that the patient is incapable of being
responsible for his own care and that the medical provider
has undertaken the duty of care for the patient’s well-being,
there would be no allocation of fault to the patient. If the
medical provider has taken on the duty of caring for a
patient with a diminished capacity, and if the patient is
capable of being responsible for his own care, allocation of
fault is in order.
Champagne, 513 N.W.2d at 80 (citations omitted); Maunz, 76 P.3d at
1033–34 (same); see also Sheron, 18 P.3d at 801 (rejecting blanket rule
disregarding suicidal patient’s comparative fault because “such a rule
would fail to account for the nearly limitless different factual scenarios
involved in these cases, many of which could well involve some fault by
the patient”); Birkner v. Salt Lake County, 771 P.2d 1053, 1060 (Utah
1989) (noting that mental impairments in emotional disorders come in
infinite degrees and concluding that categorical rule that no patient
seeking help for a mental or emotional disorder can be charged with
negligence would be unrealistic and cause damage to the principle of
comparative negligence).
We recognize a comparative fault defense to a medical malpractice
action when the plaintiff fails to follow the doctor’s instructions as to
follow-up care. See DeMoss v. Hamilton, 644 N.W.2d 302, 306 (Iowa
2003) (“[A] patient’s failure to cooperate with or follow reasonable
directions for the treatment of an ailment may be relevant in the
appropriate case” as evidence of comparative fault.). Von Linden was
instructed when she was discharged from the hospital on June 8 to call
29
the Help Center or return for care if her condition worsened. When she
met with Dr. Jennisch on June 23, he told her to call him if she had any
problems or concerns in the interim before her next appointment in two
weeks. She failed to call Dr. Jennisch or the Help Center or return for
any further care over the next six days before her suicide on June 29. A
reasonable jury could find Von Linden negligent in this regard. Indeed,
this jury found Von Linden ninety percent at fault.
The estate did not object to the district court’s submission of her
comparative fault on grounds the jury instructions failed to specify acts
or omissions of negligence apart from taking her own life. Rather,
plaintiff’s counsel simply objected
to the verdict form to the extent that the verdict form
submits the issue of fault for Elizabeth Von Linden as being
comparative or as being a proximate cause and does not
believe that there should be anything in question in No. 9
assessing any fault to Elizabeth Von Linden.
We encourage the bench and bar to include factual specifications that
explicitly set forth the particular acts or omissions constituting
negligence. See Coker v. Abell-Howe Co., 491 N.W.2d 143, 151 (Iowa
1992) (stating the purpose of requiring jury to consider specifications of
negligence is to limit the determination of factual questions to only those
acts or omissions upon which a particular claim is based and to allow
the court the opportunity to make a preliminary determination of the
sufficiency of the evidence to generate a jury question). We also
encourage trial counsel to be specific in objections to jury instructions to
give the district court and opposing counsel the opportunity to correct
the instructions before they are read to the jury. If the estate’s counsel
had challenged the comparative fault instruction on grounds of lack of
specificity at the instruction conference, Mercy could have added factual
30
specifications of Von Linden’s negligence, consistent with the evidence,
including her failure to follow medical advice to call the Help Center or
return for care if her condition worsened. The estate is not entitled to a
new trial based on lack of specificity when it failed to object on that
basis.
In any event, independent of any failure to follow medical advice,
the jury could find Von Linden’s ultimate act of suicide of itself breached
her duty of ordinary care for her own safety. We conclude that
Von Linden’s comparative fault was a question of fact for the jury. The
estate, in effect, seeks an adjudication that Von Linden was not
comparatively negligent as a matter of law. “It is only in the plainest
cases, in which reasonable minds could come to no other conclusion,
that we decide a question of contributory negligence as a matter of law.”
Peters v. Howser, 419 N.W.2d 392, 394 (Iowa 1988) (citing Iowa R. App.
P. 14(f)(10) (now Iowa R. App. P. 6.904(3)(j))).
We also agree with the conclusion of the Illinois Supreme Court in
Hobart that a rule eliminating a comparative fault defense in
noncustodial suicide cases would make bad public policy. The Hobart
court aptly observed:
The consequence of such a ruling would be that no health
care provider would want to risk the liability exposure in
treating such a patient and, thus, suicidal persons would be
denied necessary treatment. Public policy cannot condone
such a result.
705 N.E.2d at 911. Not only would the rule sought by the estate deter
some doctors from treating suicidal patients, such a rule would also
encourage other doctors to practice defensive medicine by lengthening a
mental patient’s hospitalization beyond what is medically necessary.
31
This would increase costs at a time of scarce resources for mental health
care in our state.
V. Other Issues Raised on Appeal.
A. Sole Proximate Cause. The estate claimed it was error for the
district court to instruct the jury to decide whether the conduct of
Von Linden in taking her own life was the sole proximate cause of the
estate’s damages. “ ‘Sole proximate cause means the only proximate
cause.’ ” Summy, 708 N.W.2d at 342 (quoting Johnson v. Interstate
Power Co., 481 N.W.2d 310, 323 (Iowa 1992)). The concept of sole
proximate cause is problematic at best in a medical malpractice action
against a mental health professional treating a suicidal patient. The
North Dakota Supreme Court stated, “[W]hen a patient’s suicide is a
foreseeable consequence of the medical provider’s negligent care, the act
of suicide cannot be deemed a superseding intervening cause.”
Champagne, 513 N.W.2d at 81 (allowing comparative fault defense).
Similarly, our own cases have held juries should not be instructed on
sole proximate cause or superseding cause based on the foreseeable
negligence of third parties when the defendant owed a duty to protect
plaintiff from such harm. See, e.g., Summy, 708 N.W.2d at 343
(nonparty golfer’s errant shot that struck plaintiff in eye “cannot, as a
matter of law, be the sole proximate cause of the plaintiff’s injury” in
negligence action against golf course owner for unsafe layout of tees);
Stevens, 528 N.W.2d at 120–21 (reversible error to submit superseding
cause instruction based on assault by nonparty in plaintiff student’s
negligent supervision action against school district).
In this case, the estate was not prejudiced by any error in
submitting the sole proximate cause defense because the jury found
Von Linden’s conduct was not the sole proximate cause of the estate’s
32
damages. Accordingly, the estate is not entitled to a new trial on this
ground. See Herbst, 616 N.W.2d at 585 (reversal required only if
instructional error is prejudicial).
B. Result of Treatment Instruction. The estate also claims the
district court abused its discretion in failing to give an instruction
allowing the jury to consider Von Linden’s suicide as evidence of Mercy’s
negligence. The estate’s proposed instruction stated:
While the result of the treatment administered to Elizabeth
Von Linden, by the Defendants is not in itself evidence of
negligence, it is a circumstance which may be considered by
you in determining whether the result was caused by
Defendants’ negligence.
(Emphasis added.) This instruction is substantially similar to the “result
of treatment” instruction we disapproved in Smith v. Koslow, 757 N.W.2d
677 (Iowa 2008). The Koslow plaintiff’s proposed instruction stated:
While the result alone is not, by itself, evidence of negligence,
yet the same may nevertheless be considered, together with
other facts and circumstances disclosed by the evidence in a
given case in determining whether or not such result is
attributable to negligence or want of skill.
Id. at 679. We held the district court properly rejected this instruction as
an incorrect rule of law for a medical malpractice action requiring expert
testimony, stating:
Smith did not seek an additional instruction that would have
informed the jury that a bad result could be considered by
an expert witness in formulating his or her opinion. Instead,
she sought an instruction that would permit the jury to do so
in a case that required expert testimony. Under Iowa law, a
court must give a requested instruction when it states a
correct rule of law applicable to the facts of the case and is
not embodied in other instructions. Under the
circumstances of this case, the district court did not abuse
its discretion in refusing to give the requested instruction
because the instruction was not applicable to the facts of
this case.
Id. at 682–83 (citation omitted).
33
Expert testimony was required in this case to generate a jury
question as to Mercy’s negligence. See, e.g., Donovan v. State, 445
N.W.2d 763, 766 (Iowa 1989) (stating “highly technical questions of
diagnoses and causation which lie beyond the understanding of a
layperson require introduction of expert testimony”); Wilkins v. Lamoille
County Mental Health Servs., Inc., 889 A.2d 245, 252–53 (Vt. 2005)
(Expert testimony is required to generate a jury question in a medical
malpractice action for suicide because the claims “all involve complex
psychiatric/medical issues relating to the causes, warning signs, and
prevention of suicide. These are plainly not issues within a lay juror’s
common knowledge and experience.”).
We decline to overrule Koslow, which is controlling here. The
estate’s “result of treatment” instruction contains the same flaw
identified in Koslow—the instruction permitted the jury, rather than the
expert, to consider the outcome as evidence of medical negligence. The
instructions given by the district court correctly set forth the elements of
proof for the estate’s medical malpractice claims. Accordingly, we hold
the district court did not abuse its discretion in declining to give the
“result of treatment” language requested by the estate.
C. The Estate’s Requested Instruction on Damages Theories.
Because we affirm the district court’s judgment in favor of Mercy on
liability, we do not reach the remaining issues as to whether the district
court correctly refused to give the estate’s requested jury instructions on
the “eggshell plaintiff” theory or the “lost chance of survival” doctrine.
VI. Summary and Disposition.
We conclude the district court correctly submitted the issue of
Von Linden’s comparative fault and did not abuse its discretion in
declining to give the estate’s “result of treatment” instruction. We affirm
34
the judgment in favor of Mercy based on the jury verdict finding her
ninety percent at fault.
AFFIRMED.
All justices concur except Wiggins and Appel, JJ., who dissent
separately, and Hecht, J., who joins both dissents.
35
#08–1478, Mulhern v. Catholic Health Initiatives
WIGGINS, Justice (dissenting).
I dissent. The majority attempts to reach what it deems a fair
result in deciding the case by misconstruing chapter 668 of the Iowa
Code. The majority then uses a fallback position that was not tried
below or raised on appeal to affirm the judgment. At its best, the
majority decision is wrong; at its worst, it usurps the power of the
legislature by redefining the legislative policy of chapter 668.
It is well-settled law that our court will not review a case on a
theory different from that on which the parties tried the case in the
district court. Dormoy v. Knower, 55 Iowa 722, 724, 8 N.W. 670, 671
(1881). The parties tried this case as a comparative fault case governed
by Iowa Code chapter 668. Furthermore, the defendants only requested
an instruction asking the jury to find the estate at fault because
“Elizabeth Von Linden was at fault for taking her own life.” Moreover,
these are the only theories the parties argue on appeal. Thus, these are
the only issues we can decide in this appeal.
Iowa adopted its comparative fault act, chapter 668, in 1984.
1984 Iowa Acts ch. 1293. The explanation to the bill states, “This bill
would enact the Uniform Comparative Fault Act as promulgated by the
conference of commissioners on uniform state laws.” H.F. 2487,
Explanation, 70th G.A., Reg. Sess. (Iowa 1984). Explanations attached
to bills are evidence of legislative intent. City of Cedar Rapids v. James
Props., Inc., 701 N.W.2d 673, 677 (Iowa 2005). This explanation makes it
clear the legislature intended to follow the Uniform Comparative Fault
Act.
The Uniform Comparative Fault Act contains the same definitions
of fault as appears in Iowa Code section 668.1. Uniform Comparative
36
Fault Act § 1(b), 12 U.L.A. 125 (2008). The Uniform Comparative Fault
Act states, “The Act does not include intentional torts.” Id. § 1, cmt. at
126. While some states have included intentional acts within the
definition of fault, Iowa chose not to do so. Compare Ind. Code § 34-6-2-
45 (2008), with Iowa Code § 668.1 (2003). Therefore, the first question
we need to answer is whether chapter 668 covers defendants’
specification of negligence.
The court submitted one specification of comparative fault stating,
“Elizabeth Von Linden was at fault in the taking of her own life.” The
estate argues under the facts of this case, suicide is not comparable to
Mercy’s negligence under Iowa Code section 668.1. Chapter 668 of the
Code controls Iowa’s comparative fault scheme. For purposes of chapter
668, the legislature defined fault as:
one or more acts or omissions that are in any measure
negligent or reckless toward the person or property of the
actor or others, or that subject a person to strict tort
liability. The term also includes breach of warranty,
unreasonable assumption of risk not constituting an
enforceable express consent, misuse of a product for which
the defendant otherwise would be liable, and unreasonable
failure to avoid an injury or to mitigate damages.
Iowa Code § 668.1(1).
The language we need to focus on is “one or more acts or
omissions that are in any measure negligent or reckless toward the
person or property of the actor or others.” Id. The common meaning of
suicide is “the act or an instance of taking one’s own life voluntarily and
intentionally.” Webster’s Third New International Dictionary 2286 (unabr.
ed. 2002); see also Iowa Code § 707A.1 (defining suicide for the purpose
of the assisted suicide statute as “the act or instance of taking a person’s
own life voluntarily and intentionally”). By definition, suicide is an
intentional act. The act of committing suicide is neither negligent nor
37
reckless. Accordingly, suicide is not an act included in the definition of
fault in chapter 668.
We have previously held, when an act of a party is not included in
the definition of fault contained in the comparative fault statute, the
comparative fault statute does not apply to the excluded conduct. See,
e.g., Carson v. Webb, 486 N.W.2d 278, 280 (Iowa 1992); Tratchel v. Essex
Group, Inc., 452 N.W.2d 171, 180–81 (Iowa 1990), abrogated on other
grounds by Comes v. Microsoft Corp., 775 N.W.2d 302, 310 (Iowa 2009);
Slager v. HWA Corp., 435 N.W.2d 349, 352–53 (Iowa 1989). In Carson,
we held an intentional act, such as assault and battery, is not included
in the definition of fault; therefore, the collateral source rule contained in
section 668.14 was not applicable to the plaintiff’s claim. 486 N.W.2d at
280. In Trachtel, we decided fraud is not included in the definition of
fault contained in section 668.1(1). 452 N.W.2d at 180–81. Accordingly,
we did not allow the jury to compare the negligence of one party with the
fraud of another. Id. In Slager, we refused to allow the finder of fact to
compare a corporation’s dramshop liability with a patron’s negligence
because dramshop liability is not fault as defined by the legislature in
section 668.1(1). 435 N.W.2d at 352–54.
To be consistent with our prior case law, we should not apply the
provisions of chapter 668 to acts not included in the definition of fault
found in section 668.1(1). Because suicide is not an act included in the
definition of fault, the defendants were not entitled to compare the
intentional act of Von Linden committing suicide to its negligence. Thus,
I would find the court erred in instructing the jury that it must assign a
percentage of fault against Von Linden if it concluded Von Linden was at
fault for taking her own life.
38
The majority also relies on the rule of statutory construction
directing the court to avoid construing a statute in a manner leading to
an absurd result. The majority’s reliance on this rule of construction is
flawed in a number of ways. First, before we can rely on the rule, we
must find the statute is ambiguous. Andover Volunteer Fire Dep’t v.
Grinnell Mut. Reins. Co., 787 N.W.2d 75, 81 (Iowa 2010). If the statute is
not ambiguous, we must apply it as written. Iowa Comprehensive
Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606
N.W.2d 376, 379 (Iowa 2000). The majority finds no ambiguity in the
statute, which on its face clearly does not apply to intentional acts.
The second flaw in the majority’s argument is the use of its
example stating, “a plaintiff who carelessly, but accidentally, sets her
home ablaze would have her recovery against negligent firefighters barred
or reduced by her own comparative fault; yet a homeowner who
intentionally sets her dwelling ablaze could recover in full.” Comparing
the act of a person committing suicide to the act of a person intentionally
setting a fire is illogical. The person who set the fire is not under the
care of the fire department to prevent that person from setting the fire.
In this case, the jury found that Von Linden was under the care of the
physician to treat a mental illness that made her more susceptible to
commit suicide, and the physician was negligent in treating her.
A plain reading of the statute does not allow the majority to
conclude the jury can compare an intentional act to a negligent act when
it determines fault. For this reason, I disagree with the majority’s
analysis.
As a fallback position, the majority retries the case and finds that
the jury could find Von Linden negligent for her failure to call the suicide
hotline or the doctor’s office before she committed suicide. The problem
39
with this position is that the parties did not try the case under this
theory or raise this argument on appeal. I agree our statute allows the
submission of comparative fault when there is evidence a suicide victim’s
negligence or “fault” contributed to the person taking his or her own life.
See, e.g., Sheron v. Lutheran Med. Ctr., 18 P.3d 796, 801 (Colo. App.
2000) (allowing suicide victim to be found comparatively negligent when
there was evidence he was not completely truthful or forthcoming in his
statements to medical care providers and when he failed to keep a follow-
up mental health appointment). The flaw in the majority’s argument is
that the parties never tried the issue involving Von Linden’s negligence in
failing to call the suicide hotline or the doctor before committing suicide.
In fact, the parties did not argue on appeal whether such conduct on the
part of Von Linden constituted fault.
I agree there was evidence in the record regarding the existence of
a suicide hotline and evidence that Von Linden’s doctor instructed her to
call the doctor’s office if she had any problems. However, there was no
evidence at trial that she failed to call the suicide hotline or the doctor’s
office after her discharge from the hospital. Additionally, the defendant
did not introduce any evidence that the failure to call the suicide hotline
or the doctor’s office before she committed suicide was within the scope
of the defendant’s liability. The failure of the defendant to introduce this
evidence and ask for a specific instruction to find Von Linden was
negligent for failing to call the suicide hotline or the doctor’s office makes
it clear to me that this issue was not tried in the district court. In effect,
the majority has stated that the mere fact that the evidence contained a
reference to the suicide hotline or that she was told to call the doctor’s
office if she had any problems was enough for the jury to find that she
was at fault. I disagree.
40
For the defendants to succeed on appeal with this argument, they
would first have had to ask for a jury instruction claiming this
specification of fault. The only specification of fault requested by the
defendant was “Elizabeth Von Linden was at fault in the taking of her
own life.” This court should not decide this case on a theory that was
not tried in the district court. Dormoy, 55 Iowa at 724, 8 N.W. at 671.
The defendants offered no evidence tending to show that Von Linden’s
actions in not making a call for help had anything to do with her suicide.
In the recent opinion of Doe v. Central Iowa Health System, 766 N.W.2d
787 (Iowa 2009), we held expert testimony must be produced to engender
a fact question on the issue of whether conduct caused emotional harm.
Doe, 766 N.W.2d at 794.
By using Von Linden’s conduct on a theory of fault not presented
to the jury to reach a fair result, the majority would allow the jury to
speculate whether a failure to call, if such a failure in fact occurred, was
a proximate cause of Von Linden’s suicide. Had Von Linden’s attorney
known this might become a viable issue in this case, he could have
objected to its submission to the jury for lack of evidentiary support. By
using a theory that was not submitted to the jury as a justification of the
outcome, the majority allows trial by ambush.
The bottom line is that, if a physician is negligent in the treatment
of a patient, the physician is responsible for the damages within the
scope of the physician’s liability. It is clear to me that the majority
believes it would be absurd and unfair to allow the estate of one who
commits suicide to recover damages from medical providers. But a
judge’s personal opinion as to whether a person who commits suicide
should or should not recover damages does not give the judge license to
rewrite the comparative fault statute to achieve a desired result.
41
Our job as judges is not to write a decision to avoid an unfair
result. Our job is to apply the law passed by the legislature. The
legislature makes the policy of this state and decides what is fair or not
fair. In the absence of ambiguity, our duty is to apply a statute as
written so long as it is constitutional. The legislature made a policy
decision not to include intentional acts in the definition of fault. I cannot
join in the majority’s recasting of the statute to achieve what it deems a
fair result because to do so would usurp the power of the legislature.
Accordingly, I would reverse the judgment of the district court.
Hecht, J., joins this dissent.
42
#08–1478, Mulhern v. Catholic Health Initiatives
APPEL, Justice (dissenting).
I respectfully dissent.
The majority opinion primarily rests on two legal conclusions.
First, the majority opinion holds that, under Iowa Code chapter 668, a
plaintiff’s intentional misconduct in committing suicide may be
compared against the negligence of a defendant in a case in which the
defendant has a duty to act reasonably to prevent the plaintiff from self-
harm. Second, the majority concludes in the alternative that the
defendant, in any event, raised the issue of negligence and presented
sufficient evidence of negligence to support the verdict under Iowa Code
chapter 668.
In my view, both holdings are incorrect.
I. Applicability of Comparative Fault Act to Intentional
Misconduct.
Iowa Code chapter 668 provides legislative codification of
comparative fault principles. The chapter followed this court’s decision
in Goetzman v. Wichern, 327 N.W.2d 742, 754 (Iowa 1982), superseded
by statute, Iowa Code ch. 668, in which the court, as a matter of
common law, abandoned contributory negligence in favor of comparative
fault principles.
A significant issue in any statutory scheme of comparative fault is
whether the intentional acts of parties may be compared against
negligent acts of parties. At least six states have concluded that
intentional misconduct should be so compared. Specifically, Alaska law
provides that fault includes “acts or omissions that are in any measure
negligent, reckless, or intentional”; Idaho law broadly provides for
allocation of “negligence or comparative responsibility”; Indiana law states
43
that fault “means an act or omission that is negligent, willful, wanton,
reckless, or intentional”; Michigan law reads that fault includes “an act,
an omission, conduct, including intentional conduct”; New York law
provides for comparison of “culpable conduct”; and North Dakota law
allows allocation for “willful conduct.” See Alaska Stat. Ann. § 09.17.900
(2010) (emphasis added); Idaho Code Ann. § 6-803(3) (2010) (emphasis
added); Ind. Code Ann. § 34-6-2-45 (2008) (emphasis added); Mich.
Comp. Laws Ann. § 600.6304 (2000); N.Y. C.P.L.R. § 1411 (McKinney
1997); N.D. Cent. Code Ann. § 32-03.2-02 (2010).
Unlike these states, the Iowa legislature made a different choice on
the question of intentional acts and omissions. Specifically, Iowa Code
section 668.1 defines fault as “one or more acts or omissions that are in
any measure negligent or reckless toward the person or property of the
actor or others, or that subject a person to strict tort liability. . . .” Iowa
Code § 668.1(1). Remarkably, the definition of fault in Iowa law does not
include intentional misconduct or any broad phrase that might
reasonably be construed to include it. See id.
The majority opinion thus lacks textual support. In defining
“fault,” the legislature provided a laundry list of items to be included or
considered in the comparative process. See id. The legislature included
“negligence,” “recklessness,” and acts or omissions giving rise to “strict
liability,” among other things. Id. The legislature did not include
“intentional misconduct.” Id.
Ordinarily, when the legislature supplies a list, we do not expand
upon the list through creative interpretation. Marcus v. Young, 538
N.W.2d 285, 289 (Iowa 1995); State v. Flack, 251 Iowa 529, 533, 101
N.W.2d 535, 538 (1960). We ordinarily construe a statute based upon
the language chosen by the legislature, not based on what it should have
44
said or might have said. Auen v. Alcoholic Beverages Div., 679 N.W.2d
586, 590 (Iowa 2004); Painters & Allied Trades Local Union v. City of
Des Moines, 451 N.W.2d 825, 826 (Iowa 1990).
Further, the statute does not use open-textured terms that require
judicial development. Negligence, recklessness, strict liability, and all
the rest of the words and phrases in the legislature’s definition of “fault”
are well defined and do not include within their scope intentional acts.
See Farmer’s State Bank of Darwin v. Swisher, 631 N.W.2d 796, 801
(Minn. 2001) (holding language similar to Iowa statute does not include
intentional acts or omissions); Welch v. Southland Corp., 952 P.2d 162,
164–65 (Wash. 1998) (stating the phrase “acts or omissions . . . that are
in any measure negligent or reckless” is not ambiguous under
comparative fault statute).
The majority opinion lacks historical support. It cites nothing in
the legislative history of the Iowa Comparative Fault Act to support its
position. My independent research has not uncovered any historical
materials supporting the majority opinion.
The majority does not offer a convincing structural argument to
support its interpretation. Specifically, the Iowa Comparative Fault Act
can easily be interpreted, consistent with the statutory language, as not
allowing the comparison of intentional misconduct with negligent
misconduct. Indeed, it is perfectly sensible to limit the scope of the Iowa
Comparative Fault Act to cases involving “fault” as defined by Iowa Code
section 668.1 and allow the common law to deal with the cases involving
parties who do not have “fault” as defined in that section. Indeed, many
courts seem to have come to this conclusion, at least with respect to
intentional misconduct of potential defendants. See, e.g., Hennis v. City
Tropics Bistro, Inc., 1 So. 3d 1152, 1154–57 (Fla. Dist. Ct. App. 2009);
45
Brandon ex rel. Estate of Brandon v. Cnty. of Richardson, 624 N.W.2d
604, 619–20 (Neb. 2001); Welch, 952 P.2d at 165.
The majority does not have doctrinal support in our case law.
Indeed, the case law runs in the opposite direction. We have held, for
instance, that intentional misconduct of third parties cannot be
compared against negligent defendants. See, e.g., Freeman v. Ernst &
Young, 516 N.W.2d 835, 837 (Iowa 1994); see also Tratchel v. Essex
Group, Inc., 452 N.W.2d 171, 180–81 (Iowa 1990), abrogated on other
grounds by Comes v. Microsoft Corp., 775 N.W.2d 302, 310 (Iowa 2009).
It would be odd to suggest that intentional misconduct of defendants
cannot be compared, while the intentional misconduct of the plaintiff
may. 3 Indeed, the fact that intentional misconduct of third parties could
not be compared by a negligent party under Tennessee law was a
significant factor that led to the decision in White v. Lawrence, 975
S.W.2d 525 (Tenn. 1998).
The majority seizes upon the fact that, in this case, the plaintiff
was receiving outpatient rather than inpatient care. It is suggested that,
3Under the majority approach, a psychiatrist may be liable to a nurse who is
assaulted by his patient without being able to compare the intentional acts of the
patient. It lacks symmetry to suggest that when the actor is a plaintiff, the intentional
acts may be compared against other parties, but not when the intentional tortfeasor is a
defendant. There either is a duty to protect against intentional misconduct or there is
not.
This logic is recognized in the case law. For instance, in Tennessee, the
supreme court in Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn. 1997), held that the
intentional acts of a psychiatrist’s patient could not be compared to the negligence of a
psychiatrist in a medical malpractice action arising from an assault by the patient on
the plaintiff. This case was a driving force in White v. Lawrence, 975 S.W.2d 525, 531
(Tenn. 1998), which held that the decedent’s intentional act of a suicide could not be
compared against the negligence of the decedent’s treating physician in a medical
malpractice action.
Similarly, in Iowa, we concluded in Freeman that the intentional act of a third
party could not be compared against the negligence of the defendant. See Freeman, 516
N.W.2d at 837. As in Tennessee, the Freeman case provides a strong impetus in this
case.
46
with the exception of White, the cases involving tort liability in suicide
cases against physicians and hospitals arise out of custodial settings.
See, e.g., McNamara v. Honeyman, 546 N.E.2d 139, 146–47 (Mass. 1989);
Cowan v. Doering, 545 A.2d 159, 160 (N.J. Super. Ct. App. Div. 1988).
The distinction between custodial and noncustodial care, however, has
no relevance to the meaning of “fault” in the language contained in Iowa
Code section 668.1. Instead, the distinction between custodial and
noncustodial care could be an important factor in determining whether a
defendant had a duty or breached a duty of care toward a patient. King
v. Smith, 539 So. 2d 262, 264 (Ala. 1989) (holding psychiatrist had no
duty of care in light of the outpatient character of the relationship
between the psychiatrist and his patient); Bellah v. Greenson, 146 Cal.
Rptr. 535, 538 (Ct. App. 1978) (observing that the duty imposed on those
responsible for the care of a patient in an institutional setting differs
from the duty imposed in a case involving an outpatient); Estate of Haar
v. Ulwelling, 154 P.3d 67, 72–73 (N.M. Ct. App. 2007) (finding no duty
between psychiatrist and patient based on lack of sufficient control of
patient); see generally Charles J. Williams, Fault and the Suicide Victim:
When Third Parties Assume a Suicide Victim’s Duty of Self-Care, 76 Neb.
L. Rev. 301, 310–11 (1997) (discussing custodial/noncustodial
distinction as one of duty). These duty issues, however, are not raised in
this appeal. 4 Further, whether the patient was receiving outpatient or
4The majority also seems to imply that the suicide amounts to an intervening or
superseding cause that would defeat liability of health care providers. See Jain v. State,
617 N.W.2d 293, 300 (Iowa 2000). But the intervening-cause rationale makes no sense
in cases where there is a special relationship to prevent the very harm that was
incurred. See id.; see also Edwards v. Tardif, 692 A.2d 1266, 1269–70 (Conn. 1997).
Moreover, as with duty issues, the intervening/superseding cause issue has nothing to
do with the statutory interpretation question before the court.
47
inpatient care has nothing whatsoever to do with whether Iowa Code
section 668.1 includes intentional misconduct within its scope.
In short, the majority appears to be adding a complex sentence to
the definition of “fault” in Iowa Code section 668.1. That additional
sentence is: “By the way, the term ‘negligence’ includes intentional
misconduct of a plaintiff, which may be compared against the negligence
of a defendant, but the intentional misconduct of a third-party defendant
may not be compared against other culpable parties.”
How is it that the majority adds this additional sentence without
substantial support in the statutory text, in the legislative history, in
structural imperatives, or in existing doctrine? The result is driven by
public policy. Judicial perception of public policy, while often crucial in
common law development, does not give this court license to redraft the
statute.
Further, there are plausible public policy arguments contrary to
those asserted by the majority. It could be argued, for instance, that in
cases of suicide, a hospital or physician should not be allowed to
compare the plaintiff’s intentional act of suicide because that is the very
act that the health care professionals have a duty to prevent. See
McNamara, 546 N.E.2d at 146 (“We join a number of courts in holding
there can be no comparative negligence where the defendant’s duty of
care includes preventing the self-abusive or self-destructive acts that
caused the plaintiff’s injuries.”); Cowan, 545 A.2d at 164–65 (“[T]he acts
which plaintiff’s mental illness allegedly caused him to commit were the
very acts which defendants had a duty to prevent, and these same acts,
cannot as a matter of law, constitute contributory negligence.”); see also
Kan. State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 819 P.2d
587, 606 (Kan. 1991) (“Negligent tortfeasors should not be allowed to
48
reduce their fault by the intentional fault of another that they had a duty
to prevent.”); Veazey v. Elmwood Plantation Assocs., Ltd., 650 So. 2d 712,
719 (La. 1994) (same); Lisa A. Mecklenberg, Case Comment, Negligence—
Mental Health: Why Is It My Fault When I’m the One Who’s Dead? North
Dakota Comparative Fault in a Suicide Victim/Caregiver Context, 71 N.D.
L. Rev. 1105, 1122 (1995) (suggesting no fault should be assigned to a
person who commits suicide in an action against one who failed to help
her); Allen C. Schlinsog, Jr., Comment, The Suicidal Decedent: Culpable
Wrongdoer, or Wrongfully Deceased?, 24 J. Marshall L. Rev. 463, 477–89
(1991) (asserting that modern psychiatry repudiates the notion of
culpability in suicide cases and that the test of liability for caregivers is
whether breach of duty was a substantial factor in bringing about death);
Victor E. Schwartz, Civil Liability for Causing Suicide: A Synthesis of Law
and Psychiatry, 24 Vand. L. Rev. 217, 255 (1971) (declaring “person who
commits suicide is not a blameworthy person and should not be regarded
as such”). Similarly, a leading treatise declares that “[t]here can be no
comparative negligence on the part of a patient who commits suicide
where the psychiatric staff’s duties include preventing the self-
destructive act that causes the patient’s death.” Richard M. Patterson,
Harney’s Medical Malpractice, § 10.3, at 285 (4th ed. 1999).
By citing these cases and authorities, I do not mean to suggest
that the best or only approach is to disallow comparison of the
intentional acts of a plaintiff who commits suicide. These cases and
authorities merely demonstrate that applying the plain language of Iowa
Code section 668.1 to preclude the comparison of the plaintiff’s
intentional acts against the negligence of a health care provider who had
a duty to protect the plaintiff from self-harm has a plausible policy
footing and is not absurd or irrational.
49
The approach utilized by the majority is inconsistent with cases in
which we decline to allow judicial perceptions of public policy to override
the terms or structure of statutes. For instance, in Jahn v. Hyundai
Motor Co., 773 N.W.2d 550, 560 (Iowa 2009), we held that comparative
fault principles would apply in crashworthiness cases under the
language of Iowa Code chapter 668, even though there were policy
reasons that could support another result. Similarly, in Andover
Volunteer Fire Department v. Grinnell Mutual Reinsurance Co., 787 N.W.2d
75, 87 (Iowa 2010), we concluded that, under the language of the statute,
a volunteer firefighter must be called to duty by a third party authorized
by the fire chief to be covered by workers’ compensation notwithstanding
policy arguments to the contrary. We should not employ inconsistent
approaches to statutory interpretation.
II. Negligence.
As a backup to its theory that the phraseology that “fault includes
intentional misconduct by a plaintiff but not by a third-party defendant,”
the majority suggests in the alternative that, because there was adequate
evidence the plaintiff was negligent, negligent acts of the plaintiff may be
compared.
The problem with this theory is that, upon my review of the record,
it is apparent that the issue of negligence was not joined in this trial.
Indeed, remarkably, the only specification of negligence in this trial made
against the plaintiff was “the act of suicide.” That is it. In this case, it
seems clear that the act of suicide was an intentional act. Sampson v.
Ladies of Maccabees of the World, 131 N.W. 1022, 1024 (Neb. 1911)
(noting that suicide is an intentional act); Falkenstein v. City of Bismarck,
268 N.W.2d 787, 790 (N.D. 1978) (same), abrogated on other grounds by
Minto Grain, LLC v. Tibert, 776 N.W.2d 549, 555 (N.D. 2009).
50
Further, on appeal, the defendant in its appellate brief notes that
the plaintiff “complied with all instructions.” This admission
demonstrates that the defendants did not put in issue the behavior of the
decedent prior to the “act of suicide” itself.
The majority trumps these limitations and admissions of the
defense—powerful aspects of the record—by suggesting that there was
evidence that leaked into the record when a mass of medical records was
introduced that might support a negligence theory. That may be barely
true, but should be inconsequential in light of the fact that the issue was
not joined by the parties. If the plaintiff had been aware that there were
specifications of negligence other than “the act of suicide,” a different
record may have been developed by the defendant. We cannot decide
this case on an issue that was not raised below and about which a much
different record may have been developed had the issue been joined. The
days of trial by ambush passed long ago, and I would not resurrect them
here.
The majority’s reaching out on this issue, like its interpretation of
the statute, is driven by policy considerations. But it is also inconsistent
with recent case law. In Feld v. Borkowski, 790 N.W.2d 72, 78 & n.4
(Iowa 2010), the majority of this court adopted a conservative approach
to issue preservation in order to prevent consideration of an issue that
may have led to abandonment of an antiquated special tort rule that
restricted liability. Specifically, in Feld, the majority stated:
[I]n the absence of the most cogent circumstances, we do not
create issues or unnecessarily overturn existing law
sua sponte when the parties have not advocated for such a
change. . . . [W]e are restrained to apply the controlling law
as advocated by the parties . . . .
Feld, 790 N.W.2d at 78 n.4.
51
Here, the majority takes a different approach. The parties litigated
the case as involving the question of whether “the act of suicide” may
give rise to some kind of fault to be compared to the negligence of
medical professionals. On appeal, the majority broadens the issue, even
though such broadening has not been advocated by the parties. The
situation, however, is aggravated because had the parties at trial known
that broader issues of negligence were at issue, a different factual record
might have been developed.
III. Problem of Intentional Misconduct at Common Law.
It is possible, perhaps, that the claim brought by the plaintiffs in
this case, because of the intentional acts, could be considered outside
the parameters of Iowa Code chapter 668 and, instead, within the
purview of common law. The problem with a common law approach to
this case, however, is that the parties did not try this as a common law
case. The fighting issue at the district court was over the meaning of
fault under Iowa Code section 668.1. No one suggested that chapter 668
did not apply to this case.
There may have been some good reasons why the parties accepted
the framework of Iowa Code chapter 668. They may have, of course,
simply concluded that it applied. Or, there may have been strategic
considerations. Iowa Code chapter 668 was not all bad news for the
defendants. Iowa Code chapter 668 is a modified comparative fault
statute. Under the legislature’s scheme of comparative fault, a plaintiff
found more than fifty percent at fault is barred from recovery, whereas at
common law there is no such bar. See Goetzman, 327 N.W.2d at 753
(adopting pure comparative negligence). The defendants thus could have
made a strategic choice to try the matter under Iowa Code chapter 668
and gain the benefit of modified comparative fault rather than take their
52
chances at common law. Conversely, the plaintiff may have been
satisfied with giving up pure comparative fault in light of the fact that
intentional acts are not within the definition of “fault” in Iowa Code
section 668.1.
Given the posture of the case, I see no alternative other than to
answer the question posed by the parties. I would simply hold that
under Iowa Code chapter 668, the intentional misconduct of the plaintiff
is not compared against the fault of the defendant. There may well be a
different answer at common law, but that question is not presented in
this appeal and cannot be decided now without reworking the tapestry of
the trial in this case.
IV. Conclusion.
I would hold that under Iowa Code chapter 668, the intentional
misconduct of the plaintiff cannot be compared against the fault of the
defendant. I would therefore reverse the judgment of the district court.
Hecht, J., joins this dissent.