Plaintiff filed a medical malpractice action against Defendants (a doctor and medical facility that employed the doctor) after the doctor performed a vasectomy instead of a circumcision on the Plaintiff. Plaintiff advanced two theories of medical negligence: (1) failure to obtain Plaintiff’s informed consent and (2) negligent communication.
At trial and over the Defendants’ objection, the district court instructed the jury that it could consider whether the doctor was negligent in his communication with Plaintiff or in failing to obtain informed consent from Plaintiff. The jury returned a verdict, assigning 70 percent fault to the doctor and 30 percent to Plaintiff, and awarded two million dollars in total damages. Defendants moved for judgment notwithstanding the verdict, arguing that “the jury should not have been instructed on a negligent-communication claim as any such claim was subsumed by the informed-consent claim; and even if the negligent-communication claim was a separate claim than informed consent, it was not supported by substantial evidence because there was no expert testimony establishing a standard of care[.]” Defendants also moved for a new trial. The district court denied Defendants’ motions and they appealed.
The Iowa Court of Appeals held the district court erred in instructing the jury it could find the doctor liable under the negligent communication claim. The Court reasoned that Plaintiff’s “negligent-communication claim should not have gone to the jury, as there was neither expert testimony nor substantial evidence to support it.” Consequently, Defendants’ motion for judgment notwithstanding the verdict on this theory of negligence should have been granted. The Court found that Plaintiff’s informed-consent claim remained viable and ordered a new trial to address that theory of liability.
Zaw v. Birusingh, No. 20-0697 (Iowa Ct. App. Nov. 23, 2021).