Personal injury is a type of case in which a victim has a claim due to being injured (or another person has a claim due to the victim's death) due to another person's intentional acts, negligence, recklessness, or liability.  Personal injury cases can be complex and detailed, and can involve extensive investigation and discovery, and can include negligence or strict liability, and include accident, slip and fall, animal bites, industrial accidents, product liability, and other types of cases.  I strongly recommend that injured persons contact an attorney to evaluate their claim and assist them in process their claim. 

    If a person is not injured, but property is damaged, then the case is not a personal injury case, but a property damage case. If a person is injured due to a product or manufacturer's fault, the case is a product liability case.  (I handle personal injury, property damage, and product liability cases.)

    A tort is a civil wrongdoing not arising out of a contractual relationship.  Thus tort law covers personal injury (as opposed to contract law or criminal law) and torts are typically divided into three major categories:  Intentional acts, negligence, and strict liability.  Tort law defines what is an legal injury and defines the circumstances under which a person may be liable for a victim's injury.

    Typically a tort claim can be handled on a contingency fee basis.  Under a contingency contract, the attorney is paid from the proceeds when the claim is settled. My contingency fees are 33 1/3% of the proceeds after expenses have been deducted.  If the case is taken to trial, the fees are 40% after expenses have been deducted.

    Note:  The time allowed to bring a civil suit in a case is limited by statute of limitations and repose.  Time limitations are strictly adhered to by the court and even a valid lawsuit can be denied if the suit is filed after the statute of limitations.  Time limitations can be as short as 6 months from the date of incident, so do not delay in contacting an attorney.


Intentional Torts:

Intentional Interference with Person
    Includes torts of battery, assault, false imprisonment, and infliction of Mental Distress.  Requires an intentional act.

    False Arrest/Imprisonment:
    This tort exists when a person is detained, confined, or restrained within physical barriers of some sort or by threats of force which intimidate the person into compliance.  The elements of this tort include:
            1.  Detention against one's will, and
            2.  Unlawfulness of the detention.  Valadez v. City of Des Moines, 324 N.W.2d 475 (Iowa 1982).  An arrest is justified if a peace officer has probable cause to believe that an offense has been committed in the officer's presence. Young v. City of Des Moines, 262 N.W.2d 612 (Iowa 1978). If an unindictable offense did not occur in the officer's presence, the standard is not met.

    Iowa Code section 808.12 provides for privilege and immunity from both civil and criminal actions for false arrest and imprisonment under the Shopkeeper Privilege.  If a person conceals property (under Iowa Code 714.5), the person may be detained and searched by a peace officer, person employed in a facility containing library materials, merchant or merchant's employee.  However, the detention must be for a reasonable time and the search conducted in a reasonable manner by a person of the same sex.  No search, though can be conducted by an person other than acting under the direction of a peace officer unless permission of the person to be searched has first been obtained.

    Intentional Infliction of Mental Distress (IIMD):
    The Iowa Supreme Court requires that the defendant's conduct be extreme and outrageous for this tort.  Mere insults, bad manners, or hurt feelings are not sufficient for this tort.  Elements of this tort include:
            1.  Outrageous conduct by the defendant.  This conduct is often described as "extreme and outrageous conduct that goes beyond all possible bounds of decency.  The standard for this conduct is "whether the distress inflicted is so severe that no reasonable man could be expected to endure it."  Bethards v. Shivvers, Inc., 355 N.W.2d 39, 44-45 (Iowa 1984).
            2.  Defendant intended to cause or had reckless disregard of the probability of mental distress
            3.  Severe emotional harm resulted
            4.  There is a causal relationship between the defendant's conduct and the mental distress.
    Interference with child custody can be actionable as intentional infliction of mental distress.  Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005). Misconduct in funeral arrangements can also be actionable as IIMD. Meyer v. Nottger, 241 N.W.2d 911.  Most cases will not support IIMD, however.

Intentional Interference with Property
    Includes the torts of trespass to land, trespass to chattels, and conversion.

    Trespass to Land:
    Iowa Code section 716.7 defines trespass to land.  Trespass does not include entering another's property to retrieve property accidentally going onto another's property as long as the person takes a direct route, leaves immediately, and doesn't interfere with the property's use.  Iowa Code section 716.7(3).  Trespass also does not include unarmed pursuit of game or furbearing animals lawfully injured or killed which entered the property of another.  Iowa Code section 716.7(2).

Defenses to Intentional Torts:
    1. Consent- my be expressed or manifested by silence, statements, actions, or implied in law.  However, the defendant may not exceed the scope of the consent.  
    2.  Self Defense- permits reasonable acts of self-help where resort to the protection of law is impractical.  Reasonableness is codified under Iowa Code section 704.1.  Reasonable force is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to believe that such force is necessary to avoid injury or risk to one's life or safety, or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat.  Even if an alternative action such as retreat is available, reasonable force (including deadly force) may be used.
    Defense of others is justified if reasonable force is used, but the person may only do what he may have done to protect himself.  Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967).  Reasonable and necessary force may be used to defend one's property however, an owner of property may not willfully or intentionally injure a trespasser by means of force that either takes a life or inflicts great bodily injury.  Katko v. Briney, 183 N.W.2d 657 (Iowa 1971).  Iowa Code section 704.4 outlaws the use of a spring gun or trap left unintended and unsupervised.


Negligence:

Negligence is conduct by the defendant that falls below the standard.  It is an unreasonable act that creates or permits to continue a recognizable risk.  There is a legal duty by the defendnat to conform to a general standard of care or a particular standard for certain occurrences or relationships.

    The elements of negligence include:
    1.  A duty to conform to an applicable standard of care.  There must be a duty or obligation owed by the defendant to the victim. 
    2.  Breach of that standard of care.  Generally this is the reasonable person standard- how would a hypothetical reasonable person act under like or similar circumstances.  In some circumstances, physical or mental characteristics are considered such as a blind person held to reasonable care under circumstances that include blindness.  Loss of control over conduct may also be considered, but general intelligence is not taken into account.  
        Children's negligence is determined on the basis of the child's age, intelligence and experience.  There is no presumption of incapability of negligence.  Peterson v. Taylor, 316 N.W.2d 869 (Iowa 1982).  The jury must subjectively determine the capacity of the child to perceive and avoid the risk and then objectively determine how a reasonable child of similar capacity would have acted under similar circumstances.  However, a child undertaking adult activities such as driving imposes the adult standard.  Christensen v. Kelly, 257 Iowa 1320, 135 N.W.2d 510 (1965).
        Sudden emergencies may entitle a jury instruction to hold the defendant to a lower standard which may find no negligence even though accident-avoidance was available.  Bangs v. Keifer, 174 N.W.2d 372 (Ioea 1970).  This doctrine is defined as an unforeseen combination of circumstances calling for immediate action; a perplexing contingency or complication of circumstances; and sudden or unexpected occasion for action pressing necessity.  The defendant must prove that the emergency however, was not of his/her own making.
    3. A causal connection between the conduct involving the breach and harm resulting
    4. Actual damage to the interest of the protected person.

Medical Malpractice

    Medical malpractice is usually a more difficult case in Iowa than in many other states.  Iowans, as jurors, tend to not award large payments to victims. 

Informed Consent:    The cornerstone of American medical law is "informed consent".  "Every human being of adult years and sound mind has the right to determine what shall be done with his own body. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 126; 105 N.E. 92, 93 (1914).  Informed consent is the principle that absent extenuating circumstances, a patient has the right to exercise control over his/her own body by making informed decisions concerning whether to submit to particular medical procedures.  A doctor has the duty to disclose  to the patient all material risks involved in a procedure.  Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987). Under Iowa's patient rule standard, the duty to disclose is limited not only to reasonably foreseeable risks, but also to material risks.  Petty v. U.S., 740 F.2d 1428 (Iowa 1984). The duty to disclose under the patient rule standard is measured by the patient's need to have access to all information material to making a truly informed and intelligent decision concerning the proposed medical procedure.  This is true in elective and nonelective medical procedures.  The duty to disclose is not satisfied by medical judgment, but is viewed from the patient's view.  Pauscher.  

    Iowa's informed consent statute is under Iowa Code section 147.137.  Under the code, consent in writing meeting the code requirements is presumed that informed consent was given by the doctor.  To meet the requirements, the consent must:
        1.  Set forth in general terms the nature and purpose fo the procedure or procedures, together with known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars associated with the proceudre, with the probability of each such risk if reasonably determined.
        2. Acknowledges that the disclosure of that information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner.
        3.  Is signed by the patient for whom the procedure is to be performed, or if the patient lacks legal capacity to consent, by the person who has legal authority to consent on behalf of that patient in those circumstances.

    Exceptions to the Iowa Informed Consent Statute:
        1.  Emergencies
        2. Unanticipated conditions during surgery
        3. Therapeutic privilege (disclosure would pose serious threat to the patient's health)
        4.  Waiver by patient of disclosure.

Incompetency is not an exception, since there is a right for substituted judgment on the incompetent's behalf.  Morgan v. Olds, 417 N.W.2d 232 (Iowa App.1987).  Failure to obtain the consent of a surrogate decision maker, breaches the doctor's duty and the doctor is liable for damages.  However, only the patient can recover because the duty is owed to the patient.  Morgan.

    Minors.  Consent must be obtained from the parent or legal guardian.

    Guardians. Guardians need prior court approval to authorize elective procedures other than routine examinations, move to a more restrictive environment, or withdrawal of life sustaining procedures.

    Surrogate decision makers when the patient lacks capacity for consent.
        1.  Family members
        2. Legal Guardians. 
        3.  Persons designated under the Iowa Life-Sustaining Procedures Act (Iowa Code section 144A.7)
        4.  Attorney in fact under durable power of attorney for health care.  (Iowa Code section 144B).
        5.  Substitute Decision-Making Board (Iowa Code section 135.28).


    The difference between medical treatment and negligence or battery is a patient's knowing and voluntary consent to the treatment after disclosure of the risks and alternatives involved in the treatment or in avoiding the treatment.  Negligence in medical malpractice is grounded on whether the patient actually consented to treatment without sufficient disclosure of the risks or alternatives to treatment.  Moser v. Stallings, 387 N.W.2d 599 (Iowa 1986).  If a doctor performs a procedure without obtaining informed consent, the doctor commits battery for which the patient may recover.  Morgan v. Olds, 417 N.W.2d 232 (Iowa App. 1987).

Statute of Limitations
    
    Medical malpractice must be filed within 2 years of reasonable discovery of the act resulting in the injury.  All actions, though, must be filed within 6 years of the wrongful act or omission.  Minors have special exceptions- must file suit within 2 years of the date of injury or by his/her 10th birthday, whichever is later.  If mentally ill, the limitation is 1 year from end of the disability.  Iowa Code section 614.1(9) (2009).

There is a two prong test- when the patient was aware of the injury and aware of the cause in fact.  Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008).  This issue is when the patient knew or should have known through diligence when the injury occurred or the cause of the injury. This is fact specific and not a matter of law.   There is a duty to make a reasonable inquiry to determine the defendant if there is an abnormal death, so the statute of limitations is not tolled merely because the defendant is unknown.Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008).


Negligent Infliction of Emotional Distress:
     Iowa law requires a physical injury to maintain a claim for negligent infliction of emotional distress, except in some narrow areas involving particular contractual services which justify imposition of such a duty on the defendant.  Millington, 532 N.W.2d at 792-93.  The courts have recognized negligent infliction of emotional distress claims, absent some physical injury, "in the negligent performance of contractual services that carry with them deeply emotional responses in the event of breatch," such as the delivery of medical services incident to the birth of a child, the transmission and delivery of telegrams announcing the death of a close relative, and services incident to a funeral and burial."  Oswald, 453 N.W.2d at 639 (citing Meyer v. Nottger, 241 N.W.2d 911, 920 (Iowa 1976); Mentzer v. Western Union Tel. Co.,  93 Iowa 752, 768-71, 62 N.W. 1, 5-6 (1895).  In Overturff v. Raddatz Funeral Services, Inc. (Iowa 2008), the widow didn't attend the funeral service, a divorce was pending, and the funeral home owed no duty to the widow and there was no negligent infliction of emotional distress. Without a duty there can be no claim.


Strict Liability:
    Strict Liability torts include damages from animals (including dog bites), fires, and abnormally dangerous things and activities.

    Dog Bites; An owner of a dog can be held strictly liable for a dog bite in Iowa.  This is a lower standard than for negligence or for intentional acts.  The victim must proved that a dog attacked the victim and bit or attempted to bite the victim.  Strict liability does not allow a recovery though if the victim is at fault, for example breaking into the owner's house.  However, children trespassing on a yard can recover.

Other Categories of Torts:
    Other torts include nuisance, product liability, misrepresentation and nondisclosure, defamation (including libel and slander), wrongful death and survival, and economic torts.



Recovery for Damages of Personal Injury in Iowa;  A victim may recover one or more of the following types of damages for personal injury in Iowa.  
    
    Expenses, including Medical Expenses:   Reasonable and necessary expenses as a result of the personal injury may be recovered.  This can include past and future expenses.  For medical expenses, this could include doctor's expenses, hospitalization, surgery, rehabilitation, therapy, nursing, home care, tests, pain management, dental, and other expenses. If your insurance paid out for these expenses, there may be a required payback to the insurer if expenses are recovered.

    Loss of Earnings (Income): A victim may recover for actual lost earnings and future lost earnings.  Earnings include salary, commissions, bonuses, and benefits.  If the injuries have permanently reduced your earning capacity, a victim may recover the value of future reductions which can be reasonably predicted for the remainder of the victim's working lifespan.

    Pain and Suffering:  A victim may recover for physical pain and mental anguish actually suffered and likely to occur in the future.  This amount can often be greater than lost earnings and expenses.

    Wrongful Death:   The beneficiaries (usually spouse, children, and other family members) may recover if they were dependent upon the victim.  These damages can include loss of consortium (companionship, comfort, guidance, affection, and aid to the relationship, general usefulness, industry and attention within the house and family).  The Estate can also recover for loss of accumulation to the value of the estate.  

    Bodily Injury; This can include loss of full mind and body and disfigurement.  If the victim has lost part or function of part of his/her body or mind, the victim may recover for this loss.  If scarring or other marks occur, disfigurement and humiliation or embarrassment damages may be claimed.

    Property damage:  A victim may be entitled to be made whole as to any personal property damage. Property must be restored to its condition before the incident.  If the damage is to your car, the victim may be entitled to recover the cost of substitute transportation while the car is being repaired. If the property is a total loss (damage more than actual value) a victim is entitled to the full value of the property prior to the damage, plus sales tax.