               IN THE SUPREME COURT OF IOWA
                               No. 07–1278

                         Filed February 27, 2009


JASON BANKS,

      Appellant,

vs.

SUSAN BECKWITH, M.D.
and THE IOWA CLINIC, P.C.,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Karen A.

Romano, Judge.



      Plaintiff appeals the district court’s ruling refusing to instruct the

jury on the theory of res ipsa loquitur.      DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND

REMANDED.



      Thomas P. Slater of Slater and Norris, P.L.C., West Des Moines, for

appellant.



      Michael H. Figenshaw and Thomas M. Boes of Bradshaw, Fowler,

Proctor & Fairgrave, P.C., for appellee.
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BAKER, Justice.

      In this medical malpractice case, the plaintiff, Jason Banks,

appeals the district court’s ruling refusing to instruct the jury on the

doctrine of res ipsa loquitur.    Banks contends there was substantial

evidence presented at trial that a catheter inserted in his chest by the

defendant, Dr. Susan Beckwith, would not have fractured in the ordinary

course of events if Beckwith had used reasonable care, and therefore, the

district court should have instructed the jury on res ipsa loquitur. We

transferred this case to the court of appeals, which held that the district

court did not err in refusing the instruction.        We granted Banks’

application for further review.   We find that the district court erred in

refusing to give the res ipsa loquitur instruction, as Banks introduced

substantial evidence that the fracture of a catheter does not happen in

the ordinary course of events without negligence. The refusal to allow

the instruction was prejudicial to Banks, and, therefore, we reverse the

decision of the district court and remand the case for a new trial.

      I. Background Facts and Prior Proceedings.

      Beckwith surgically inserted an Infus-A-Port catheter in Banks for

the purpose of delivering chemotherapy to his body. Beckwith performed

the operation by placing Banks under general anesthesia, making an

incision to the upper left chest area below the clavicle, then using a guide

wire to thread the catheter into the subclavian vein toward the heart.

The proper placement of such a catheter is inside the subclavian vein as

it passes through the costoclavicular space (the tight area between the

clavicle and the first rib). Proper placement inside the subclavian vein as

it passes through the costoclavicular space protects the catheter from

excessive compression in that space, which could cause the catheter to

fracture, break-off, and migrate to the heart.
                                     3

      It was later discovered that Banks’ catheter had fractured, and a

piece of it had migrated to Banks’ heart. Banks underwent open-heart

surgery to remove the fractured piece. The catheter was returned to the

manufacturer for testing to determine the cause of the fracture.        The

manufacturer determined that the catheter was not defective, as the

fractured catheter had a rough irregular edge that is “most commonly”

the result of compressive forces associated with improper placement.

      Banks filed a lawsuit against Dr. Beckwith and her employer, the

Iowa Clinic, P.C., alleging that Beckwith was negligent in improperly

implanting the catheter in his vein.     The petition stated that Banks

intended to rely upon the doctrine of res ipsa loquitur to prove his claim.

      A jury trial commenced on June 11, 2007.             At trial, Banks

presented expert witness, Dr. DeSantis.          On direct examination,

DeSantis testified that a catheter does not fracture if properly placed in

the subclavian vein and that the failure to do so is below the accepted

standard of practice. Banks could not present any direct evidence that

Beckwith had actually improperly placed the catheter. The defendants’

expert testified that a catheter could fracture even when it was placed

properly in the vein.

      At the conclusion of the trial, Banks requested that the court

instruct the jury on the doctrine of res ipsa loquitur.     The trial court

determined that the res ipsa loquitur instruction was not warranted

stating, “I think all the evidence in the record is that the fracture of the

catheter is a rare occurrence . . . just because it’s rare doesn’t mean that

we get to the point of the general negligence res ipsa instruction.” The

case was submitted to the jury only on the issue of the specified

negligence of the defendants. The jury found the defendants were not at

fault, and judgment was entered in favor of defendants. Banks appealed
                                      4

the trial court’s ruling, alleging that the district court erred in failing to

instruct the jury on the theory of res ipsa loquitur.

      II. Scope of Review.

      The standard of review concerning alleged error with respect to

jury instructions is for correction of errors at law. Iowa R. App. P. 4;

Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa

2000). In a previous case concerning the court’s failure to instruct the

jury on the doctrine of res ipsa loquitur, we stated:

      The district court must give a requested jury instruction if
      the instruction (1) correctly states the law, (2) has
      application to the case, and (3) is not stated elsewhere in the
      instructions. . . . When we weigh the sufficiency of the
      evidence to support a requested instruction, we review the
      evidence in the light most favorable to the party seeking the
      instruction. A district court’s failure to give a requested
      instruction does not require a reversal unless the failure
      results in prejudice to the party requesting the instruction.

Id. (citing Beyer v. Todd, 601 N.W.2d 35, 38 (Iowa 1999) (other citations

omitted)).

      III. Discussion and Analysis.

      Res ipsa loquitur is Latin for “the thing speaks for itself.” Conner

v. Menard, Inc., 705 N.W.2d 318, 320 (Iowa 2005).            It is a type of

circumstantial evidence which allows the jury to “infer the cause of the

injury ‘from the naked fact of injury, and then to superadd the further

inference that this inferred cause proceeded from negligence.’ ”           Id.

(quoting Benedick v. Potts, 40 A. 1067, 1069 (Md. 1898)).

      In 1940, Iowa became one of the first jurisdictions to hold the

doctrine of res ipsa loquitur applicable in medical malpractice cases.

Whetstine v. Moravec, 228 Iowa 352, 382, 291 N.W. 425, 439 (1940). We

consider the doctrine to be a rule of evidence, not one of pleading or
                                       5

substantive law. Wick v. Henderson, 485 N.W.2d 645, 648 (Iowa 1992)

(citing Wiles v. Myerly, 210 N.W.2d 619, 624 (Iowa 1973)).

       To submit a case on the theory of res ipsa loquitur, the plaintiff

must introduce substantial evidence that: (1) the injury was caused by

an instrumentality under the exclusive control and management of the

defendant, and (2) that the occurrence causing the injury is of such a

type that in the ordinary course of things would not have happened if

reasonable care had been used. Brewster v. United States, 542 N.W.2d

524, 529 (Iowa 1996). “ ‘If there is substantial evidence to support both

elements, the happening of the injury permits—but does not compel—an

inference that the defendant was negligent.’ ” Id. (quoting Mastland, Inc.

v. Evans Furniture, Inc., 498 N.W.2d 682, 686 (Iowa 1993)).

       When the doctrine of res ipsa loquitur is used in a medical

malpractice case,

       the plaintiff is relieved of the burden of showing that specific
       acts of defendant were below accepted medical standards.
       The plaintiff still must prove negligence, but he or she does
       so by convincing the jury the injury would not have occurred
       absent some unspecified but impliedly negligent act.

Sammons v. Smith, 353 N.W.2d 380, 385 (Iowa 1984).
       Banks alleges that the trial court erred in failing to give his

requested instruction on res ipsa loquitur.        His expert, Dr. DeSantis,

testified:

             When the catheter is in the vein . . . there is very little
       chance of it being fractured. It is when the catheter is not
       located in the vein that there is a problem. . . . And my
       opinion is that it would not have fractured if it were properly
       placed in the vein. . . . [I]t’s not an anatomic possibility if it
       were inside the vein.

DeSantis further testified that there is “[a]s close to no chance as one can

get without saying no [chance]” that a catheter does not fracture when
                                      6

properly placed.       Banks asserts that this testimony constitutes

substantial evidence of the second prerequisite for submission of res

ipsa.   He also claims that the court gave undue consideration to the

catheter manufacturer’s instruction book which included a warning that

fracture was a possible complication, and it was for the jury to determine

what weight to give this evidence, not the court. Banks contends that a

plaintiff is not required to show with absolute certainty that the

defendant’s negligence caused the injury, and that to require such

evidence would eviscerate the res ipsa loquitur doctrine.

        The issue for the trial court is whether there is sufficient

competent evidence of the existence of the foundational facts to generate

a jury question.    “ ‘Evidence is substantial if a reasonable mind could

accept it as adequate to reach the same findings.’ ” Brewster, 542 N.W.2d

at 529 (quoting Mastland, 498 N.W2d at 684).

        The defendants contend that the trial court was correct in refusing

to give the res ipsa loquitur jury instruction.        They claim that the

evidence shows that a catheter may fracture, in the ordinary course of

events, even if it is properly inserted.       They allege that DeSantis’

testimony is nothing more than evidence that the occurrence is rare, and

“[r]arity of the occurrence is not a sufficient predicate for application of

res ipsa loquitur.”   Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa 1973).

Defendants also point out that the catheter instruction book contained a

listing of complications, which included “Catheter Occlusion, Damage, or

Breakage due to Compression between the Clavicle and the First Rib.” In

light of this evidence, the defendants contend that Banks did not meet

his burden of proving that catheters do not fracture in the ordinary of

course events without negligence, and therefore, the trial court was

correct in refusing to give the res ipsa loquitur instruction.
                                     7

      During cross-examination, when asked if there was no chance that

a catheter could fracture inside a vein, DeSantis answered, “Well, as little

chance as – as close as you can get to no. . . . I have been in medicine

long enough to know that nothing is impossible.” This statement is not

the functional equivalent of admitting that catheter fracture is rare; this

is just a doctor giving an honest answer that in medicine it is his belief

that there are no absolutes. We have previously voiced this sentiment,

stating, “[m]edicine is not a field of absolutes.” Estate of Smith v. Lerner,

387 N.W.2d 576, 581 (Iowa 1986).

      A reasonable mind could accept DeSantis’ testimony as adequate

to reach the conclusion that a catheter does not fracture if it is placed

inside the vein, and therefore, does not fracture in the absence of

negligence. In res ipsa loquitur cases,

      a plaintiff is not required to eliminate with certainty all other
      possible causes or inferences.        The plaintiff need only
      produce evidence from which a reasonable person could say
      that on the whole it is more likely than not that there was
      negligence associated with the cause of the event.

Brewster, 542 N.W.2d at 530.        Although the defendants introduced

testimony from an expert that a catheter may fracture even if properly
inserted and evidence that the catheter instruction book listed breakage

as a possible complication, Banks was not required to refute any other

possibilities for the breakage.      He was only required to provide

substantial evidence that it was more likely than not negligence was the

cause of the event. He met this burden.

      In its refusal to allow the res ipsa loquitur instruction, the district

court stated that the plaintiff’s evidence proved only that fracture of a

catheter was a rare occurrence, and this fact was not enough to warrant

the instruction.    The district court appears to have misapplied the
                                     8

definition of rarity and weighed the evidence. This is not a rarity case.

DeSantis did not testify that fracturing of the catheter is an inherent risk

of inserting a catheter in the subclavian vein or that fractures are, on

rare occasions, not the result of negligence.       Rather, his testimony

provides substantial evidence from which a reasonable person could

conclude that catheter fractures do not occur without negligent insertion

of the catheter outside the subclavian vein.

        In Perin, this court adopted the reasoning of the California courts

that,

               “[w]here risks are inherent in an operation and an
        injury of a type which is rare does occur, the [res ipsa]
        doctrine should not be applicable unless it can be said that,
        in the light of past experience, such an occurrence is more
        likely the result of negligence than some cause for which the
        defendant is not responsible.”

Perin, 210 N.W.2d at 615 (quoting Siverson v. Weber, 372 P.2d 97, 99–

100 (Ca. 1962)). Thus, a rarity case involves risks that are inherent in

an operation and in the past have proven not to be the result of

negligence. We have had several medical malpractice cases in which we

found substantial evidence that the event complained of was a rare

occurrence and not the result of negligence. In Perin, we held that the

expert testimony demonstrated that vocal cord paralysis was an inherent

risk of cervical fusion surgery. Id. In Tappe v. Iowa Methodist Medical

Center, 477 N.W.2d 396, 396 (Iowa 1991), all the experts testified, and

the court agreed, that stroke was an inherent risk in a fixed percentage

of all bypass surgeries even in the absence of negligence. In Cronin v.

Hagan, 221 N.W.2d 748, 753 (Iowa 1974), the medical evidence

demonstrated that necrosis of the ureter was an inherent risk of a

hysterectomy. In each of these cases, the court relied upon the evidence
                                    9

or lack of evidence presented by the plaintiffs in determining that the

event complained of was a rare occurrence.

      In Tappe, this court stated that “if reasonable minds might differ

about whether the injury could result from surgery in the absence of

negligence, the court should instruct on res ipsa and allow the jury to

accept or reject the inference that the doctrine affords.”     Tappe, 477

N.W.2d at 400–01.

      Banks introduced substantial evidence to generate a jury question

on the second element of the res ipsa loquitur doctrine.        The court,

however, appears to have weighed the testimony of DeSantis against the

evidence offered by defendants that fracture was an inherent risk of the

procedure.   It is not the role of the court to weigh the evidence.    The

plaintiff, having submitted competent evidence of the two elements, was

entitled to have res ipsa loquitur submitted to the jury.      The district

court should have instructed the jury on the theory of res ipsa loquitur.

The defendant, however, may introduce competent evidence tending to

disprove either or both foundational elements. Sammons, 353 N.W.2d at

387. The fact that the defendant submitted evidence tending to disprove

this foundational element is not sufficient to take away from the plaintiff

the benefit of the doctrine of res ipsa loquitur. Wiles, 210 N.W.2d at 627.

      The refusal to submit the res ipsa loquitur instruction was

prejudicial to Banks. Because he could provide no evidence of specific

negligence by defendants, without the instruction, he had no means of

proving fault. A new trial of Banks’ general negligence claim is required

to allow the jury to apply res ipsa loquitur to the facts of this case.

Clinkscales v. Nelson Securities, Inc., 697 N.W.2d 836, 847–48 (Iowa

2005).
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      IV. Disposition.

      We hold that the district court erred in refusing to give the res ipsa

loquitur instruction because Banks introduced substantial evidence that

fracture of a catheter does not happen in the ordinary course of events

without negligence. The refusal to allow the instruction was prejudicial

to Banks, and, therefore, we vacate the decision of the court of appeals,

reverse the decision of the district court, and remand the case for a new

trial for the application of res ipsa loquitur.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.
