John Doe Vs. Central Iowa Health System D/b/a Iowa Health Des Moines D/b/a Iowa Methodist Medical Center And D/b/a Iowa Lutheran Hospital

IN THE SUPREME COURT OF IOWA
No. 07–1017
Filed May 15, 2009
JOHN DOE,
Appellant,
vs.
CENTRAL IOWA HEALTH SYSTEM
d/b/a IOWA HEALTH DES MOINES
d/b/a IOWA METHODIST MEDICAL CENTER
and d/b/a IOWA LUTHERAN HOSPITAL,
Appellees.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
The plaintiff appeals a district court decision granting defendants’
motion for judgment notwithstanding the verdict, setting aside the jury
verdict, and dismissing plaintiff’s petition. AFFIRMED.
Gretchen R. Jensen and Jeffrey L. Goodman of Goodman &
Associates, P.C., West Des Moines, for appellant.
Frank B. Harty, Thomas W. Foley, and Hannah M. Rogers of
Nyemaster, Goode, West, Hansell & O’Brien, P.C., Des Moines, for
appellees.
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WIGGINS, Justice.
In this appeal, we must decide whether the district court was
correct when it granted the defendants’ motion for judgment
notwithstanding the verdict. Because the plaintiff failed to produce
sufficient evidence to support his claim that the disclosures of his mental
health records were the cause of his emotional distress, we affirm the
judgment of the district court.
I. Prior Proceedings.
John Doe, an employee of Central Iowa Health System, brought an
action against Central Iowa Health System, Iowa Health System, Iowa
Methodist Medical Center, and Iowa Lutheran Hospital1 alleging that in
2003 they unlawfully disclosed his medical and/or mental health
information to Doe’s coemployees. Doe alleged Iowa Health violated the
privacy rules of the Federal Health Insurance Portability and
Accountability Act, breached its fiduciary duty, and violated the privacy
rules of Iowa Code chapter 228 covering the disclosure of mental health
and psychological information. Doe further alleged these violations
caused him to suffer humiliation, embarrassment, mental anguish, fear
of social ostracism, fear regarding job security, and other severe
emotional distress.
The case proceeded to trial on the alleged violation of chapter 228.
The Code provides in relevant part:
1. Except as specifically authorized in section
228.3, 228.5, 228.6, 228.7, or 228.8, a mental health
professional, data collector, or employee or agent of a mental
health professional, of a data collector, or of or for a mental
health facility shall not disclose or permit the disclosure of
mental health information.
1These defendants will be collectively referred to as “Iowa Health.”
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2. Upon disclosure of mental health information
pursuant to section 228.3, 228.5, 228.6, 228.7, or 228.8, the
person disclosing the mental health information shall enter a
notation on and maintain the notation with the individual’s
record of mental health information, stating the date of the
disclosure and the name of the recipient of mental health
information.
The person disclosing the mental health information
shall give the recipient of the information a statement which
informs the recipient that disclosures may only be made
pursuant to the written authorization of an individual or an
individual’s legal representative, or as otherwise provided in
this chapter, that the unauthorized disclosure of mental
health information is unlawful, and that civil damages and
criminal penalties may be applicable to the unauthorized
disclosure of mental health information.
3. A recipient of mental health information shall
not disclose the information received, except as specifically
authorized for initial disclosure in section 228.3, 228.5,
228.6, 228.7, or 228.8. However, mental health information
may be transferred at any time to another facility, physician,
or mental health professional in cases of a medical
emergency or if the individual or the individual’s legal
representative requests the transfer in writing for the
purposes of receipt of medical or mental health professional
services, at which time the requirements of subsection 2
shall be followed.
Iowa Code § 228.2 (2003).
At the close of Doe’s case, Iowa Health moved for a directed verdict.
In their motion for a directed verdict they made the following claims:
(1) Iowa Code chapter 228 does not provide Doe with a private cause of
action; (2) if chapter 228 does provide a private cause of action, Iowa
Health did not violate chapter 228 because any disclosures made were
not in violation of chapter 228; (3) any disclosures made by Iowa Health
employees was done outside the scope of their employment; (4) Doe failed
to present substantial evidence that he suffered any emotional distress
caused by the actions of Iowa Health employees.
The court overruled the motion for a directed verdict. In doing so,
the court stated it believed chapter 228 created a private cause of action
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for emotional distress without a showing of physical injury or a showing
of outrageous conduct. However, the court did state that in its mind
“there is a huge issue in this case about the sufficiency of the evidence to
prove emotional distress.” The court reserved ruling on the sufficiency of
the evidence issue.
At the close of all the evidence, Iowa Health renewed its motion for
directed verdict. The court renewed the ruling it made at the end of
Doe’s evidence and decided to submit the case to the jury. The court
used the following marshalling instruction to instruct the jury on the
elements Doe had to prove to recover under a private cause of action
under section 228.2.
INSTRUCTION NO. 12
In order to recover on his claim of unlawful disclosure
of mental health information the Plaintiff must prove all of
the following propositions:
1. That an employee of the Defendant disclosed the
Plaintiff’s mental health information. The term
“disclosed” is defined in Instruction No. 13. The
term “mental health information” is defined in
Instruction No. 13.
2. That the employee who disclosed the Plaintiff’s
mental health information did so:
a. within the scope of his or her employment.
The phrase “within the scope of employment” is
defined in Instruction No. 14; or
b. with the authorization of a managerial
employee of the Defendant.
3. The disclosure was unlawful. The term
“unlawful” is defined in Instruction No. 15.
4. That the unlawful disclosure was the proximate
cause of emotional distress to the Plaintiff. The
term “emotional distress” is defined in
Instruction No. 16.
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5. The amount of damage.
If the Plaintiff has failed to prove any of these
propositions, the Plaintiff is not entitled to recover damages.
If the Plaintiff has proved all of these propositions, he is
entitled to recover some amount of damages as explained in
Instruction No. 17.
The court further instructed the jury that the only element of damages
upon which the jury could return a verdict was for Doe’s emotional
distress.
The jury found Doe proved all the elements as required by the
marshalling instruction and returned a verdict in favor of Doe for
$175,000. Iowa Health then filed a motion for judgment notwithstanding
the verdict or in the alternative a motion for new trial or remittitur. Iowa
Health raised the same issues as it raised in its motion for directed
verdict. The district court sustained Iowa Health’s motion for judgment
notwithstanding the verdict claiming the disclosures by four of Iowa
Health’s employees were not the proximate cause of any emotional
distress to Doe and there was not substantial evidence tending to prove
the fifth employee made any disclosure of mental health information
while acting within the scope of employment.
II. Issue.
Doe appeals the district court order granting Iowa Health’s
judgment notwithstanding the verdict. In response to Doe’s brief, Iowa
Health continues to raise the issue that chapter 228 does not imply a
private cause of action and Doe failed to establish that any violation by
Iowa Health of chapter 228 caused Doe’s emotional distress. Iowa
Health’s claim—Doe failed to establish that any violation by Iowa Health
of chapter 228 caused the emotional distress suffered by Doe—is
dispositive of this appeal. Therefore, for purposes of this appeal, we will
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assume without deciding, that Iowa Code section 228.2 implies a private
cause of action and that chapter 228 allows recovery for emotional
distress without physical injury or a showing of outrageous conduct. In
other words, we will assume the court properly instructed the jury on the
law and the instructions are the law of the case.
III. Scope of Review.
We review the district court’s grant of a motion for judgment
notwithstanding the verdict for correction of errors at law. Maxim Techs.,
Inc. v. City of Dubuque, 690 N.W.2d 896, 900 (Iowa 2005). Our task is to
determine whether substantial evidence exists to support the elements of
the plaintiff’s claim, justifying the court to submit the case to the jury.
Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). In
doing so, we review the evidence in the light most favorable to the
nonmoving party. Id. Evidence is substantial when reasonable minds
would accept the evidence as adequate to reach the same findings.
Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008).
IV. Analysis.
Examining the evidence in the light most favorable to Doe, we find
the evidence as follows. On December 4, 2003, Doe attempted suicide by
taking an overdose of aspirin. He wanted to die because he did not care
about life anymore and he thought it would be the best thing for him.
One cause of his emotional distress leading to his suicide attempt was
the fact his mother had just passed away of a massive heart attack.
Another cause was that his car was repossessed on the day he attempted
suicide.
After taking the overdose, Doe sent a text message to one of his
friends telling her goodbye. He also thought he might have called or sent
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a text message to another friend relaying the same information. Another
friend actually spoke to Doe and told him that he needed to get to the
hospital or she was going to call 911. Doe agreed to go to the hospital
and had his father take him. He was admitted to the mental health unit.
Doe then had his friends inform his supervisor that he would not be at
work because of his hospitalization.
Doe’s supervisor came to Lutheran Hospital and visited him in the
mental health unit. Doe gave his supervisor permission to tell two of his
coemployees that he was in the unit and they could come visit him. At
this point, at least two coemployees and his supervisor knew Doe was in
the mental health unit. Doe did not tell his coemployees that they were
not to disclose his situation or that he was in the mental health unit.
On December 15, his first day back at work, Doe received a phone
call from a former employee. This former employee was a sister of a
person who worked at Iowa Health. Based on this phone call, Doe had a
suspicion that an employee of Iowa Health accessed his records and told
this person about his mental health problems. Doe also became
suspicious that other people may have known about his hospitalization
by the way another employee treated him when he returned to his job at
Iowa Health. Based on his suspicions, Doe made a complaint to the
privacy officer at Iowa Health concerning the unauthorized access and
disclosure of his records.
The privacy officer conducted an investigation and determined six
people, who were not authorized to access Doe’s records, had accessed
his records. Each of those persons received a level three discipline. A
level three discipline is the highest level of discipline a person could
receive and is just shy of termination. Doe requested the privacy officer
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to confirm whether any Iowa Health employees accessed his records
without authorization. The privacy officer told him under Iowa Health’s
policy she was unable to confirm whether the records were accessed.
Doe was not aware of any unauthorized access of his records until after
he filed the lawsuit.
In February 2004, a coemployee made a sexual harassment
complaint against Doe. The complaint alleged Doe made graphic
remarks about wanting to have sex with the complainant. The complaint
was investigated by Iowa Health and determined to be founded. Iowa
Health disciplined Doe for violating its sexual harassment policies.
After receiving his discipline for the sexual harassment violation,
Doe transferred from Iowa Methodist to Iowa Lutheran Hospital. He
transferred to Lutheran Hospital partly because his coemployees at
Methodist made him feel uncomfortable and partly because of the sexual
harassment complaint. After his transfer, Doe received a note from one
of his coemployees. The note stated
[Doe], your pen is now mine. Do not – – I repeat – – do not
try to retrieve it. If you do you will suffer the utmost
excruciating pain you have ever experienced, except for that
one night when you thought it might be fun to experiment
with – – whoops, did I mention that? Sucka.
This note was from a coemployee who accessed Doe’s records without
authorization.
At trial, Doe told the jury he was not asking for any lost wages or
medical expenses, rather he was only asking for emotional distress. He
testified that after he learned someone had disclosed his records that he
became less social. He further stated he became more introverted,
because he did not share personal information as much as he had before
these disclosures. He also testified that after the disclosures his sex
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drive diminished significantly. He felt socializing with his fellow
employees after the disclosures triggered an increase in emotional
distress because he felt uncomfortable knowing that his coemployees
knew about his suicide attempt.
Doe further testified he did not seek professional treatment for his
condition because he figured he would have to go to a doctor connected
with Iowa Health and the privacy of his records would be at risk. The
only evidence presented at trial to corroborate Doe’s damage claim was
from one of his coemployees, who testified that when Doe returned to
work after his suicide attempt he was acting differently. This coworker
testified this change took place when he came back to work, but she did
not relate any change to the unauthorized disclosures of information.
Assuming Iowa Code section 228.2 implies a private cause of
action, section 228.2 creates the duty or standard of care a person must
follow. See Seeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35, 37 (Iowa
1982) (stating “[s]tatutory enactment is one of the means by which such
duty or standard of care may be created”); Restatement (Second) of Torts
§ 286 (1965). A breach of that duty is negligence and gives rise to a tort
action. Seeman, 322 N.W.2d at 37. As instructed by the district court, a
plaintiff in a tort action based on negligence can only recover damages
for those injuries suffered as a proximate cause of the defendant’s
negligence. See Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001) (listing
elements of a negligence action). Therefore, in order for Doe to succeed,
he must prove the unauthorized disclosures of his records caused the
emotional distress he testified to at trial. However, before the court can
submit his claim that the disclosures of his records caused his emotional
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distress to the jury, the record must contain substantial evidence to
support the submission. Gibson, 621 N.W.2d at 391.
The longstanding Iowa rule is that in a tort action the necessity of
expert testimony or the quality of necessary expert testimony determines
whether substantial evidence supports the submission of the causal
relationship between the act of the wrongdoer and the injury. Mark
McCormick, Opinion Evidence in Iowa, 19 Drake L. Rev. 245, 260 (1970).
We use the necessity of expert testimony or the quality of necessary
expert testimony to determine whether substantial evidence supports
causation of a medical condition because, for substantial evidence to
exist on causation, the plaintiff must show something more than the
evidence is consistent with the plaintiff's theory of causation. Ramberg v.
Morgan, 209 Iowa 474, 482, 218 N.W. 492, 497 (1928). The evidence
must show the plaintiff’s theory of causation is “reasonably probable—
not merely possible, and more probable than any other hypothesis based
on such evidence.” Id. The evidence, however, need not be conclusive of
causation. Soreide v. Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41,
43–44 (1956).
When the causal connection between the tortfeasor’s actions and
the plaintiff’s injury is within the knowledge and experience of an
ordinary layperson, the plaintiff does not need expert testimony to create
a jury question on causation. Stickleman v. Synhorst, 243 Iowa 872,
877–78, 52 N.W.2d 504, 507–08 (1952). In Stickleman, a physician
needed to stick a needle in the patient’s throat to inject an opaque oily
substance into the trachea so the substance would enter her lungs. Id.
at 874, 52 N.W.2d at 506. After the substance entered her lungs, the
physician was going to take an x-ray of the lungs to reveal her bronchial
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tubes. Id. On his first attempt, the physician missed her trachea. Id.
On the second attempt, he was successful in introducing the substance
into the trachea. Id. at 875, 52 N.W.2d at 506. Upon returning home,
the patient started to bleed profusely from the puncture wounds. Id. It
took three procedures and four pints of blood to stop her from bleeding
to death. Id. The physician claimed there was insufficient evidence to
submit the case to the jury because the patient failed to produce any
expert medical testimony to establish the puncture wounds on her neck
caused the excessive bleeding. Id. at 878, 52 N.W.2d at 508. Our court
disagreed. Id.
The court stated, “[i]t is sufficient if under the evidence and facts of
common knowledge plaintiff’s theory is reasonably probable, not merely
possible, and more probable than any other theory based thereon.” Id. at
877, 52 N.W.2d at 507 (emphasis added). The evidence showed that
several important arteries and veins are in the throat and they carry a
considerable amount of blood. Id. The court also found it is common
knowledge that if a person’s throat is cut, a person can suffer a serious
injury due to the danger from the loss of blood. Id. Consequently, our
court held there was no requirement that the cause of her throat injury
be shown by expert medical testimony. Id. at 878, 52 N.W.2d at 508.
When the causal connection between the tortfeasor’s actions and
the plaintiff’s injury is not within the knowledge and experience of an
ordinary layperson, the plaintiff needs expert testimony to create a jury
question on causation. Bradshaw v. Iowa Methodist Hosp., 251 Iowa
375, 382–83, 101 N.W.2d 167, 171 (1960). In Bradshaw, a patient
entered the hospital complaining that his back was very sore and that he
could not sleep. Id. at 378, 101 N.W.2d at 169. While in the hospital,
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the patient fell in the physiotherapy room. Id. at 377, 101 N.W.2d at
168. The patient brought an action against the hospital, and the jury
returned a verdict in his favor. Id. The hospital appealed the verdict. Id.
Approximately six months prior to the fall, the patient injured his
back in a work-related incident. Id. Because of his work-related injury,
doctors removed a protruding intervertebral disc at the fifth lumbar
interspace. Id. at 378, 101 N.W.2d at 168–69. Eight months after his
fall in the hospital, the Mayo Clinic removed a protruding degenerated
disc at the fourth lumbar space and fused his fourth and fifth lumbar
vertebrae. Id. at 379, 101 N.W.2d at 169. The patient claimed the fall at
the hospital was the cause of the condition treated at Mayo. Id. At trial,
the Mayo surgeon testified the fall at the hospital was possibly the cause
of the condition. Id. at 379, 101 N.W.2d at 170. The surgeon could not
testify the fall at the hospital was probably the cause of the condition.
Id.
Our court reversed the judgment of the district court. Id. at 390,
101 N.W.2d at 176. Our court held the causal connection between the
patient’s fall in the hospital and the condition Mayo treated him for was
not within the knowledge and experience of an ordinary layperson. Id. at
382–83, 101 N.W.2d at 171. The court also held that if the Mayo
surgeon’s testimony, expressed in the term of possibility, was
accompanied by lay testimony that the patient was not afflicted with a
back injury prior to the fall at the hospital, a jury question would be
generated as to the causation issue. Id. at 380, 101 N.W.2d at 170.
Absent this additional testimony, the patient was required to present
expert testimony in the term of probability causally relating the fall to the
condition treated at Mayo. Id. at 383, 101 N.W.2d at 171–72.
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We have applied the rule that a plaintiff needs expert testimony to
prove causation of emotional distress damages unless the causation is so
obvious that it is within the common knowledge and experience of a
layperson. Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 637 (Iowa
1990). In Vaughn, the plaintiff brought an action for intentional
infliction of emotional distress arising out of religious harassment. Id. at
630. The primary evidence of the plaintiff's emotional distress was his
own testimony and conclusions that the harassment at work caused him
to lose fifty pounds and become ill with colitis. Id. at 637. We held the
causal relationship between the harassment and the plaintiff's symptoms
was not within the common experience of a jury. Id. We further stated,
“[i]n many cases where we have held that a fact question was engendered
on the issue of emotional harm and causation, we have relied on the
testimony of physicians and psychiatrists.” Id. (citations omitted).
In the present case, Doe presented no expert witness to testify that
there was a connection between the unauthorized disclosures of his
records and the changes in his behavior. Therefore, we must determine
if the causation issue is within the knowledge and experience of an
ordinary layperson. However, before addressing that issue, we must
comment on Doe’s claim that Iowa Health did not raise the necessity of
expert testimony issue in the district court and is precluded from doing
so on appeal.
What Doe fails to realize is that the necessity or the quality of
necessary expert testimony determines whether the evidence is
substantial when dealing with the causation of a medical condition.
Mark McCormick, Opinion Evidence in Iowa, 19 Drake L. Rev. at 260. If
the causal connection is within the knowledge and experience of an
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ordinary layperson, expert testimony is not needed to generate a jury
question on causation. On the other hand, if the causal connection is
not within the knowledge and experience of an ordinary layperson, expert
testimony is necessary to generate a jury question on causation. Id.
Therefore, Iowa Health’s motion for directed verdict stating Doe failed to
present substantial evidence that he suffered any emotional distress
caused by the action of Iowa Health employees preserves the error.
On the merits of the issue, the evidence establishes Doe attempted
to commit suicide by taking an overdose of aspirin. Doe was suffering
from emotional distress at the time of his attempted suicide. His medical
condition was such that he needed to be hospitalized in a mental health
unit. The record does not disclose the extent to which the treatment Doe
received after the suicide attempt resolved or relieved his preexisting
emotional distress. We do not know the state of his mental condition on
his release from the hospital.
After the unauthorized disclosures of his records, Doe testified he
believed the disclosures caused him to become less social, more
introverted, and less sexually active. All the evidence of Doe’s emotional
distress claim consisted exclusively of his own conclusory statements.
He did not articulate at what point in time after the unauthorized
disclosures he became less social, more introverted, and less sexually
active. He did not testify if these conditions progressed or regressed over
time. He did not obtain any medication or treatment to combat his
condition. His friend testified that he was different after the
hospitalization, but did not attribute Doe’s change in condition to the
unauthorized disclosures of his records.
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Doe is not required to produce expert testimony to submit the
causation of his subjective complaints of emotional distress to the jury if
causation is so obvious that it is within the common knowledge and
experience of a layperson. The evidence here, however, is insufficient to
allow a layperson to determine whether the unauthorized disclosures of
the records caused Doe’s alleged emotional distress. Doe did not present
evidence as to his mental condition on his release from the mental health
unit. Doe did not reasonably and sufficiently explain the circumstances
and progression of his emotional distress. He merely relied on
conclusory statements to support his claim. The jury had no basis upon
which to determine if his emotional distress was caused by the
unauthorized disclosures of the records or by the preexisting condition
that led to his suicide attempt.
Applying the Bradshaw analysis, we conclude the lay jurors,
unaided by expert testimony, could not distinguish the emotional
distress, if any, arising from the unauthorized disclosures of Doe’s
records from the preexisting emotional distress. The only difference
between the facts in Bradshaw and the facts in this case is that the
plaintiff in Bradshaw suffered from a physical health condition while Doe
suffers from a mental health condition.
Therefore, we do not believe it is within the knowledge and
experience of ordinary lay jurors to determine which aspects of Doe’s
emotional distress were related to the unauthorized disclosures of his
records, and which were related to preexisting factors. Because of his
preexisting condition and the conclusory nature of his testimony, without
expert testimony relating Doe’s condition to the unauthorized disclosures
of his records, the jury was left to speculate as to what part of Doe’s
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emotional distress, if any, was actually related to the unauthorized
disclosures. Doe’s bare assertions of causation do not show his theory of
causation is reasonably probable—not merely possible, and more
probable than any other hypothesis based on the evidence. Accordingly,
substantial evidence did not exist to submit the issue of causation to the
jury.
V. Disposition.
Because substantial evidence does not support a finding that Doe
suffered emotional distress caused by the action of Iowa Health
employees, the district court should have granted Iowa Health’s
judgment notwithstanding the verdict. Therefore, we affirm the judgment
of the district court granting the motion for judgment notwithstanding
the verdict, setting aside the jury verdict, and dismissing Doe’s petition.
AFFIRMED.
All justices concur except Ternus, C.J., and Appel, J., who take no
part.