ALAN ANDERSEN, Individually and as Injured Parent of CHELSEA ANDERSEN and BRODY ANDERSEN, and DIANE ANDERSEN, Wife of Alan Andersen, Appellants,
SOHIT KHANNA, IOWA HEART CENTER, P.C., and CATHOLIC HEALTH INITIATIVES IOWA CORP. d/b/a MERCY HOSPITAL MEDICAL CENTER, Appellees.
review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Michael D.
and his family seek further review of a court of appeals
decision affirming an adverse jury verdict.
S. Harding of Harding Law Office, Des Moines, for appellants.
J. Penner, Jennifer E. Rinden, and Robert D. Houghton of
Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for
patient and his family brought a medical negligence action
against a physician and the physician's employer. They
alleged specific negligence and the failure of the physician
to obtain informed consent. The district court granted
summary judgment in favor of the defendants on the claim of
informed consent based on the physician's failure to
disclose his lack of training and experience in performing
the particular procedure. During trial, the court refused to
allow the plaintiffs to proceed with their informed-consent
claim based on the physician's failure to disclose the
risk of the surgery considering the patient's bad heart.
case proceeded to trial on the specific negligence claim.
However, the court would not submit a specification of
negligence regarding the physician's lack of training or
experience. The jury returned a verdict for the defendants,
and the court entered judgment for the defendants. The
patient and his family appealed. We transferred the case to
the court of appeals, and it affirmed the judgment of the
district court. The patient and his family sought further
review, which we granted.
further review, we affirm the district court's judgment
on the specific negligence claim. However, we find the
district court erred when it removed the two informed-consent
claims from the case. Accordingly, we remand the case back to
the district court to allow the patient and his family to
proceed on their two informed-consent claims consistent with
Factual and Procedural Background.
January 2, 2004, Alan Andersen underwent a Bentall heart
procedure performed by Dr. Sohit Khanna, an employee of the
Iowa Heart Center, P.C. Khanna performed the procedure at the
Mercy Hospital Medical Center in Des Moines. At the time,
Khanna did not have any experience or training in performing
the particular Bentall procedure used on Andersen. There were
several complications with the procedure that resulted in
Andersen being in a coma, undergoing a second heart surgery,
and having a heart transplant.
September 2005, Andersen, his wife, and
children filed a petition against Khanna, Iowa
Heart, and Mercy. In addition to alleging negligence against
Khanna, Iowa Heart, and Mercy, Andersen alleged Khanna and
Mercy failed to obtain informed consent from Andersen prior
to surgery. The basis of the informed-consent allegation was
that Khanna, Iowa Heart, and Mercy failed to properly advise
Andersen of the risks and dangers of the procedure.
filed an amended petition in August 2008. In the amended
petition, he alleged Khanna and Iowa Heart did not obtain
informed consent because they failed to advise Andersen that
Khanna had limited experience in performing a Bentall
2010, Khanna and Iowa Heart filed a motion for partial
summary judgment on the informed-consent allegations in the
amended petition, claiming a physician does not have a duty
to disclose physician-specific characteristics or experience
in obtaining a patient's informed consent. Notably, the
motion for partial summary judgment did not explicitly
challenge Andersen's informed-consent claim to the extent
it was based on Khanna's and Iowa Heart's alleged
failure to disclose the risks and dangers of the procedure.
15, 2010, the district court agreed with Khanna and Iowa
Heart that under Iowa law a physician does not have a duty to
disclose physician-specific characteristics or experience in
obtaining informed consent. Therefore, the court granted
Khanna and Iowa Heart's motion for partial summary
judgment. The relevant part of the ruling stated,
The first motion the Court considers is Dr. Sohit Khanna and
the Iowa Heart Center's Motion for Partial Summary
Judgment in regard to the issue of informed consent. The
Court having read and reviewed the motion, the memorandum of
authorities in support of the motion for partial summary
judgment, the resistance filed by the Plaintiffs, the
affidavits and the entire court file and otherwise being duly
advised in the premises finds that the Motion for Partial
Summary Judgment should be, and is, hereby sustained. The
Court agrees with the Defendant Khanna and the Iowa Heart
Center that the informed consent for patients as defined
under Iowa law requires a disclosure to the patient of all
known material information concerning the procedure to be
performed which includes disclosing the material risks
concerning a particular procedure. The Court finds that Iowa
law does not include a duty to disclose personal
characteristics or the experience of a physician or doctor in
obtaining informed consent from a patient. Therefore,
pursuant to Iowa law, the Court finds that the motion for
summary judgment filed by Dr. Khanna and the Iowa Heart
Center regarding informed consent is hereby sustained.
ruling removed from the case the informed-consent claim based
on failure to disclose lack of experience. This ruling did
not remove the informed-consent claim based on failure to
advise Andersen of the risks and dangers of the procedure due
to his bad heart.
2011, Dr. Henri Cuenoud, one of the defendants' experts,
was deposed. In that deposition, Dr. Cuenoud opined
Andersen's heart valve "was severely stenotic and
leaking a lot as well[, which] is the worst valve condition
you can get" and described Andersen's heart's
presurgery condition as exhausted, "like somebody at the
end of a marathon." Dr. Cuenoud also concluded Khanna
was aware of the poor condition of Andersen's heart. When
asked, "[G]iven Mr. Andersen's dire condition prior
to surgery, were there any special or out-of-the-ordinary
steps that Dr. Khanna should have taken to deal with it,
" Dr. Cuenoud replied, "I would say that I would
have quoted a higher risk of surgery of not being able to
come off the pump . . . something like 25 percent chance of
not making it" and that, retrospectively, Khanna should
have been more forthcoming about the risk of surgery.
on that information from Dr. Cuenoud's deposition, on
June 1, 2011, Andersen filed a motion to reconsider the June
15, 2010 partial summary judgment ruling on informed consent.
Andersen asserted Khanna should have informed him of the
increased risk of surgery due to Andersen's heart's
poor presurgical condition. Andersen requested the court
reverse its partial summary judgment grant and "allow[ ]
the parties to adduce evidence regarding the informed consent
issue as it has now developed in light of the anticipated
testimony of Dr. Henri Cuenoud."
September 9, 2011, the plaintiffs voluntarily dismissed Mercy
from the lawsuit. Therefore, any reference to Khanna will
hereinafter also refer to Iowa Heart.
September 20, 2011, a second judge ruled on the motion to
reconsider. The ruling provided in its entirety,
The Court reconsiders its June 15, 2010, ruling and enters
the following ruling modifying the same only as follows: The
Plaintiffs shall be allowed to present evidence relating to
Dr. Cuenoud's awareness of the Plaintiff's increased
mortality risk and apprising the Plaintiff of the
ruling allowed Andersen to pursue an informed-consent claim
based on Khanna's failure to disclose the increased risk
from the heart's presurgery condition.
ruling also addressed Khanna's second motion in limine,
filed June 10, 2011, which requested the court disallow
"[a]ny reference to, or evidence concerning, allegations
of lack of informed consent, negligent credentialing, and
that Dr. Khanna was not qualified." The court ruled that
limine request was
SUSTAINED as to negligent credentialing. Dr.
Khanna's qualifications may be pursued by the Plaintiffs
in the context of general negligence claim, along with the
issue of informed consent consistent with the Court's
ruling on this issue on the Plaintiff's Motion to
began in October 2011 but resulted in a mistrial on October
31, 2011. The court reset the case for trial to begin in
April 2013. In anticipation of the second trial, Andersen
submitted proposed jury instructions, including an
informed-consent instruction based on Khanna's failure to
disclose a material risk due to the presurgery condition of
Andersen's heart. The second trial also resulted in a
mistrial on April 15, 2013. Following the second mistrial,
both Andersen and Khanna retained new counsel.
court reset the case for a third trial to begin in July 2014.
On June 30, 2014, Andersen submitted proposed jury
instructions, which again included informed consent based on
Khanna's failure to disclose a material risk due to the
presurgery condition of Andersen's heart.
pretrial conference on July 2, 2014, the parties argued
whether informed consent was still part of the case. Andersen
claimed informed consent based on failure to disclose the
increased risk due to his bad heart remained an issue in the
case. Khanna disagreed. Yet another district court judge
assigned to preside over the case stated,
Well, here is where I'm still confused, more so from a
lack of sustained involvement in this case. There was an
informed consent claim that was the subject of a summary
judgment motion which was granted. Now, ordinarily that would
tell me everything I need to know about the viability of the
informed consent claim. Has there been any effort to re-plead
another informed consent claim since Judge Rosenberg's
[June 15, 2010] ruling?
counsel answered, "Not to my knowledge, " and the
district court proceeded to the next topic without resolving
the informed-consent issue. The court's written order
that followed the pretrial conference also did not resolve or
conclude whether informed consent based on failure to
disclose the increased risk due to Andersen's bad heart
remained an issue in the case.
case-in-chief at trial, Andersen did not offer evidence to
support his informed-consent claim based on failure to
disclose the increased risk due to his bad heart. It appears
he was waiting for Dr. Cuenoud to testify as an expert
witness to present evidence on this claim. Khanna failed to
move for a directed verdict on that issue at the close of
informed-consent issue arose again just before Dr. Cuenoud
was to testify. The court held a discussion outside the
presence of the jury. Andersen reminded the court of the
increased risk claim supported by Dr. Cuenoud's
testimony. Khanna again alleged that this issue was out of
the case due to the September 20, 2011 ruling.
a break for the court to review the September 20, 2011 ruling
on Andersen's motion to reconsider, the discussion
continued between the court and counsel. Based on the
discussion, the court determined the issue of informed
consent had been previously closed and it was not going to
reopen the issue at that point in the trial. The court
All right. The parties and the Court have taken this case up
to this point we're now in the waning days of trial,
after a week and a half of trial, operating under the
assumption that informed consent was out of the case. I know
that there have been some issues back and forth on this
topic, but in general, either in terms of offers of proof or
other proffers of evidence, nothing has been presented that
would suggest that informed consent was going to be a theory
of liability for the jury to resolve or at least to preserve
for further review. I'm not going to reopen that issue
mid-trial to allow for a discussion of whether or not Dr.
Khanna should be found liable or negligent for not discussing
any increased risks from the surgery that the doctor may be
testifying about today.
So I'm not going to reconsider the prior rulings on
informed consent, while acknowledging that it is possible
that Judge Stovall may have inserted the wrong doctor's
name in his [September 20, 2011] ruling regarding whose
awareness of the increased mortality risk in apprising Mr.
Andersen of the same may have been intended. I don't know
if that reference to the doctor's awareness relates to
Dr. Khanna or not. I don't see any way to reasonably read
that sentence without concluding that perhaps Dr. Cuenoud was
inadvertently inserted when Dr. Khanna may have been
But that being said, the parties under the Court's
direction have kept this case from being developed as an
informed consent case, and that's not going to change
mid-trial, with the plaintiffs having rested. And so
we'll have to await how that shakes out down the road,
but for the remainder of the trial, informed consent is still
But the doctor can be examined-Dr. Cuenoud can be examined
consistent with his theories on causation regarding the risks
that Mr. Andersen posed presurgery and the viability of the
decision to be operated on.
the court ruled Dr. Cuenoud could not testify as to the
numerical quantification of the increased risk:
To try to bring this back to a state of balance, I'm
going to direct counsel and advise the doctor that he is not
to testify regarding his knowledge or opinions regarding the
quantification of any increased mortality risk posed to this
patient, because I think then we do have a slippery slope on
apprisement and the potential for rebuttal. I think he can
talk about his opinions as developed on causation that the
type of failure experience by Mr. Andersen is common or to be
expected or at least an issue that is addressed, but the
degree it can be developed initially to be quantified in a
way that might open the door to an informed consent claim
that I think we have all been operating under the assumption
is not available will not be allowed.
court's ruling before Dr. Cuenoud's testimony
prevented Andersen from eliciting evidence to support his
informed-consent claim based on the failure to disclose the
increased risk due to his bad heart. Nevertheless, the court
acknowledged, if Khanna elicited testimony opening the door
to informed consent, it would allow Andersen to pursue the
the testimony of defense expert Dr. Frazier Eales, Andersen
argued Khanna opened the door. In his testimony, Dr. Eales
was asked if Andersen's heart's presurgery condition
would "have an effect on the ventricle's ability to
be protected." Dr. Eales responded,
It has a huge effect. It not only has a huge effect on the
ability to protect the muscle, but it has an effect on how
much reserve, how much reserve strength there is, if you
will, following the injury of cardiopulmonary bypass.
When I operate on somebody, I frequently tell them this: I
can guarantee that I'll do my best job on the day that
we're going to do this operation. And I can guarantee
that I'll hurt them. I'll hurt them pretty
significantly. It's a big incision. You've got to
heal that up. And what we do in our work hurts the heart. It
injures the heart. Every time.
The fact we can do this successfully depends on whether the
people have reserve capacity in their heart. You know, you
don't need to have it working at a hundred percent of
possible output in order to do well. And we rely on every
patient to have enough reserve there to get through the
injury of the heart, the surgery itself, and recover, and
recover really well, because we've eliminated the big
Mr. Andersen came to surgery with severe aortic stenosis,
severe aortic insufficiency, severe left ventricular
hypertrophy, and he had had the bicuspid aortic valve for his
entire life. So his heart has been working with an extra
workload for a long, long time. There's no question that
this was a higher risk operation than the standard elective
argued Dr. Eales's testimony regarding what he tells his
patients put the issue back in the case and the court should
allow Andersen to present evidence on that issue in rebuttal.
The court disagreed, ruling Dr. Eales's testimony did not
open the door to informed consent and not allowing the
informed-consent claim to be reintroduced.
the ruling and limitation on Dr. Cuenoud's testimony,
this ruling also prevented Andersen from eliciting evidence
in support of the informed-consent claim based on failure to
disclose the increased risk due to his bad
heart. Additionally, Andersen did not develop any
damage claim concerning his informed-consent claims because
the court removed the issue from the case. As there was no
evidence before the jury on any informed-consent issue, the
court did not instruct the jury on informed consent.
jury concluded Khanna was not negligent in performing the
Bentall procedure. Andersen appealed, and we transferred the
case to the court of appeals. The court of appeals affirmed
the district court. Andersen applied for further review,
which we granted. We will discuss additional facts and
procedural notes as needed.
issues will resolve this appeal. First, we must decide
whether the district court erred in granting partial summary
judgment when it decided under Iowa law a physician does not
have a duty to disclose information about the physician's
inexperience or lack of training. Next is whether the
district court erred when it did not allow Andersen to
proceed on the informed-consent claim based on Khanna's
failure to disclose the risk of the surgery considering the
bad condition of Andersen's heart. Third is whether a
finding by the jury that Khanna was not negligent precludes
Andersen's informed-consent claims. Lastly is whether the
district court erred when it denied Andersen's request to
amend a jury instruction to include an additional, separate
specification of negligence.
Scope of Review.
review of summary judgment rulings is for correction of
errors at law. Baker v. City of Iowa City, 867
N.W.2d 44, 51 (Iowa 2015). "[W]e examine the record
before the district court to determine whether any material
fact is in dispute, and if not, whether the district court
correctly applied the law." Roll v. Newhall,
888 N.W.2d 422, 425 (Iowa 2016) (quoting J.A.H. ex rel.
R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258
(Iowa 1999)). "A fact is material when its determination
might affect the outcome of a suit. A genuine issue of
material fact exists when reasonable minds can differ as to
how a factual question should be resolved." Linn v.
Montgomery, 903 N.W.2d 337, 342 (Iowa 2017) (citation
omitted). We view the record in the light most favorable to
the nonmoving party. Boelman v. Grinnell Mut. Reins.
Co., 826 N.W.2d 494, 501 (Iowa 2013). "We draw all
legitimate inferences the evidence bears that will establish
a genuine issue of material fact." Linn, 903
N.W.2d at 342.
court treated its ruling at trial that prevented Andersen
from introducing evidence regarding the informed-consent
issue involving the failure to disclose the risks of the
Bentall procedure considering Andersen's bad heart
condition as an evidentiary issue. We review evidentiary
rulings for an abuse of discretion. Stender v.
Blessum, 897 N.W.2d 491, 501 (Iowa 2017); Giza v.
BNSF Ry., 843 N.W.2d 713, 718 (Iowa 2014). "A court
abuses its discretion when its ruling is based on grounds
that are unreasonable or untenable." Giza, 843
N.W.2d at 718 (quoting In re Tr. #T-1 of Trimble,
826 N.W.2d 474, 482 (Iowa 2013)). A ground is unreasonable or
untenable when it is "based on an erroneous application
of the law." Id. (quoting Tr. #T-1 of
Trimble, 826 N.W.2d at 718). ...