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.
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.
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