              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.
                                             2


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.”
                                    3

            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
                                     4


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.
                                     5

            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
                                    6


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
                                       7


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
                                       8


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
                                    9


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
                                    10


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
                                     11


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,
                                     12


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.
                                    13


      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
                                     14


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.
                                    15


      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
                                     16


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.
