              IN THE SUPREME COURT OF IOWA
                              No. 08–1478

                          Filed June 24, 2011


TODD A. MULHERN, Individually and
as Representative of the Estate of
Elizabeth M. Von Linden,

      Appellant,

vs.

CATHOLIC HEALTH INITIATIVES
a/k/a CATHOLIC HEALTH INITIATIVES
IOWA CORP. d/b/a MERCY FRANKLIN
CENTER and/or MERCY HOSPITAL
and/or MERCY PSYCHIATRIC SERVICES,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Donna L.

Paulsen, Judge.



      An estate appeals an adverse jury verdict in a medical negligence

action. AFFIRMED.


      Andrew J. Stoltze and Bruce H. Stoltze of Stoltze & Updegraff, P.C.,

Des Moines, and Christopher A. Kragnes, Des Moines, for appellant.



      Stacie M. Codr and Connie L. Diekema of Finley, Alt, Smith,

Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee.
                                      2

WATERMAN, Justice.

      Elizabeth Von Linden, a successful business executive, took her

own life three weeks after she was discharged as an inpatient from

defendant Mercy Hospital’s psychiatric ward and six days after her

outpatient office visit with Mercy’s psychiatrist. Her husband brought a

wrongful death action against Mercy, alleging negligent care.         Mercy

raised defenses, including Von Linden’s comparative negligence.         The

trial court allowed the jury to decide their negligence. The jury found

both Mercy and Von Linden negligent and allocated ninety percent of the

total fault to Von Linden and ten percent to Mercy, resulting in a defense

verdict.   We are asked to decide whether our state’s comparative fault

act, Iowa Code chapter 668 (2003), permits a jury to compare the fault of

a noncustodial suicide victim with the negligence of the mental health

professionals treating her. We determine Von Linden owed a duty of self-

care as an outpatient, and the district court committed no reversible

error in allowing the jury to compare her fault. We therefore affirm the

judgment for Mercy.

      “Suicide has long been the subject of intense religious, ethical,

legal and medical debate.” Brandvain v. Ridgeview Inst., Inc., 372 S.E.2d

265, 271 (Ga. Ct. App. 1988) (citing Victor E. Schwartz, Civil Liability for

Causing Suicide: A Synthesis of Law and Psychiatry, 24 Vand. L. Rev.

217 (1971)). “A medical provider treating a patient with suicidal ideas

presents    a   uniquely    complex   situation   for   comparative   fault.”

Champagne v. United States, 513 N.W.2d 75, 78 (N.D. 1994).                As

discussed below, courts have reached divergent conclusions on how to

allocate legal responsibility for suicide between the victims and the

mental health professionals treating them.        Each case turns on its

uniquely tragic facts.     Our resolution under Iowa law is based on the
                                    3

record made below and is guided by well-reasoned precedent from other

states where the overwhelming majority of courts allow juries to compare

the fault of a noncustodial patient who commits suicide.

      I. Background Facts and Proceedings.

      Elizabeth Von Linden, age forty, was in charge of consumer

marketing at a large media company. Her job involved substantial travel

and stress. She had a history of recurrent episodes of severe depression

with interepisode recovery throughout her adult life. During college, she

attempted suicide by slitting her wrists and overdosing on sleeping pills.

She dropped out of college and, for roughly twenty years, was a

functional alcoholic. After attending Alcoholics Anonymous, she stopped

drinking.   Her sobriety followed a second suicide attempt by carbon

monoxide poisoning. She went many years with no medical treatment

for her depression.

      In late 1999, Von Linden met Todd Mulhern. Mulhern moved in

with Von Linden in 2000. Mulhern and Von Linden were married in May

2002. Mulhern, Von Linden, and his ten-year-old daughter initially lived

in Von Linden’s home in Des Moines.      Von Linden and Mulhern then

purchased a larger house on the same block and moved in, but had

difficulty selling her old house.   The financial stress of owning two

houses largely fell on Von Linden as the primary breadwinner.        This

financial stress coupled with work pressures worsened Von Linden’s

depression, culminating in a suicide attempt on June 6, 2003.

      For the two preceding weeks, Von Linden had experienced suicidal

thoughts. That night she decided to take her own life. Von Linden, in

the middle of the night, went downstairs into the garage and taped a

vacuum hose from the tailpipe of her car to run into the back window.

She ingested prescription painkillers and Xanax, turned her car on, and
                                       4

fell asleep. The heat from the tailpipe melted the vacuum hose. Mulhern

awoke to the odor of car exhaust. He ran downstairs into the garage to

find Von Linden, responsive but lethargic, in her car.        He took her to

Mercy Medical Center’s emergency room.

        An emergency room physician assessed Von Linden, conducted lab

tests, and called Mercy Franklin Center—Mercy’s behavioral health

section—for    a   psychiatric    evaluation.   In   the    emergency    room,

Von Linden continued to express suicidal ideations by stating, “I wish it

would end” and “I’m sorry I didn’t die.” Von Linden consented, however,

to being hospitalized.

        Von Linden was admitted into the psychiatric ward in the early

afternoon of June 6 and spent the next two days there. The medical staff

placed    Von Linden     on   a    suicide   watch   upon    her    admission.

Dr. Charles Scott Jennisch, a psychiatrist, was her primary physician.

He had not treated her previously. Dr. Jennisch met with Von Linden on

June 6 for several hours. He diagnosed her with recurrent, severe major

depressive disorder and placed her on new medications.             He educated

her about the nature of her illness and treatment options. She told him

she had never heard such detailed information before, and it gave her

hope.    She asked to have a short hospital stay followed by outpatient

treatment.    That night, Von Linden slept well, and the next morning

Dr. Jennisch noted she appeared brighter and more hopeful with

reduced anxiety.

        Dr. Jennisch met with Von Linden and Mulhern again on June 7

and discussed in depth her illness and treatment recommendations.

Von Linden told Dr. Jennisch “none of the stressors related to the house

are worth dying for.”    She denied any suicidal ideation that day.       She

expressed regret for her suicide attempt and confidence about the
                                     5

potential to treat her illness. She reiterated she did not want inpatient

treatment. Both she and her husband asked that she return home that

day. Dr. Jennisch discouraged discharge and recommended she remain

hospitalized at least another day. She agreed. He discussed educational

support with her and the transition to outpatient services at his clinic.

He recommended that, after her release as an inpatient, Von Linden

participate in a “partial hospitalization” program from 9 a.m. to 3 p.m.

daily. She reported improvements in her symptoms and said she did not

feel she needed intense inpatient treatment or the partial hospitalization

program. Both she and her husband asked that she return to work as

quickly as possible.

      On June 8, Dr. Jennisch met with Von Linden again.                Her

condition had markedly improved, and she had met all inpatient

treatment goals. Von Linden and her husband asked that she go home.

Dr. Jennisch spoke with Von Linden about outpatient treatment plans

and gave her written discharge instructions. Von Linden was instructed

to remain on the medications and schedule follow-up visits with

Dr. Jennisch and with a psychologist for therapy.      Finally, she was to

attend the “women and self-esteem” and “stress management” group

therapy sessions at Mercy Franklin Center.        Dr. Jennisch went over

these instructions with Von Linden.      She was given several emergency

numbers, including Dr. Jennisch’s and a Help Center number she was to

call day or night if her condition worsened. Dr. Jennisch “made it clear

to her” she was to call if she had any concerns.          Von Linden told

Dr. Jennisch that, “if things changed or deteriorated as opposed to

actually attempting to take her life, . . . she would be very comfortable in

either coming to the Help Center . . . or in calling [his] clinic.”     The

discharge summary states “[f]ollow-up and emergency services were
                                      6

discussed in detail,” Von Linden “has our emergency phone numbers,”

she is “aware of how to contact us if there are any problems or concerns

as well as the Help Center and emergency resources,” and she “readily

agrees to utilize those.”    A nurse also went over the instructions with

Von Linden and Mulhern. Dr. Jennisch discharged Von Linden from the

hospital at 10:15 a.m., and she took those instructions home with her.

      The next day, June 9, Von Linden returned to work and scheduled

follow-up     appointments   with   Dr. Jennisch   for   June 23    and   the

psychologist he recommended for July 2. On June 13, Von Linden called

Dr. Jennisch’s office and obtained permission to increase her medication.

      Von Linden and Mulhern next met with Dr. Jennisch on June 23.

Dr. Jennisch noted Von Linden was doing better and had tolerated her

new medications without any difficulties. Von Linden reported that she

had only seen small changes since her discharge from the hospital but

had not had any suicidal thoughts. Mulhern reported that she seemed

brighter and better able to laugh and enjoy things. Dr. Jennisch spent

significant    time   discussing    Von Linden’s    illness   and    making

recommendations for her continued care.       He discussed with her the

option of returning to the hospital for the intensive outpatient treatment

program, which she declined. Dr. Jennisch “again reviewed emergency

services . . . as well as stress management techniques.” He agreed to see

her again in two weeks and instructed her to call him in the interim if

she had any problems or concerns. Dr. Jennisch and plaintiff’s expert at

trial testified that, as of June 23, she could not be involuntarily

committed under Iowa law. Von Linden scheduled another appointment

to see Dr. Jennisch on July 7.

      Meanwhile, Von Linden was attending work every day.                 Her

supervisor testified at trial that the last day he saw her, June 27, she
                                     7

was performing well at work and appeared to be “in a great mood.” Her

work calendar reflected she was planning future appointments.              On

June 29, Mulhern left to go play a slow-pitch softball game. Mulhern’s

daughter was playing at a neighbor’s house.         At approximately 12:15

p.m., while Mulhern was still gone, his son arrived at the house, let

himself in, made something to eat, and watched TV while he waited for

Mulhern to return. When Mulhern arrived back home, he asked his son

where Von Linden was, and they both began to search for her. His son

ran into the garage and found Von Linden. She had committed suicide

by hanging herself from a pipe using a chain and a rope. There is no

evidence or claim she called or attempted to use the emergency phone

numbers after seeing Dr. Jennisch on June 23.

      Mulhern, individually and on behalf of Von Linden’s estate, filed a

petition against Catholic Health Initiatives d/b/a Mercy Franklin Center,

and/or Mercy Hospital and/or Mercy Psychiatric Services (Mercy),

alleging that Mercy’s negligence was a proximate cause of Von Linden’s

death.   Mercy alleged as an affirmative defense that Von Linden’s

conduct, in whole or in part, proximately caused her death.           Mercy’s

answer affirmatively stated, “[T]his action is governed by Chapter 668 of

the Code of Iowa.”

      The case proceeded to trial.       The evidence included conflicting

expert   testimony   regarding   whether    the    brevity   of   Von Linden’s

hospitalization and the quality of care she received while hospitalized

contributed to her ultimate suicide.     At the close of the evidence, the

estate objected to the court instructing the jury that it could compare

Von Linden’s fault to the fault of Mercy.     It also objected to the court

giving a sole proximate cause instruction.        The court overruled these
                                      8

objections. Accordingly, on the verdict form, the jury was permitted to

allocate a percentage of fault to Von Linden.

      The estate also requested three jury instructions that the court

declined to submit:       an “eggshell plaintiff” instruction, a second

instruction that would allow the jury to consider the result of treatment

as evidence of negligence, and a third on the lost-chance-of-survival

doctrine.

      The estate did not name Dr. Jennisch as a defendant, but claimed

Mercy was vicariously liable for his acts because he was Mercy’s agent

when he treated Von Linden. The court submitted a special interrogatory

on this issue.

      The jury found Mercy, Dr. Jennisch, and Von Linden negligent and

their negligence proximately caused the estate’s damages. It found that

Von Linden’s suicide was not the sole proximate cause of the estate’s

damages.     The jury allocated ninety percent of the total fault to

Von Linden and five percent each to Mercy and Dr. Jennisch. The jury

found Dr. Jennisch to be Mercy’s agent.         The district court entered

judgment in favor of Mercy because the jury found Von Linden’s fault

exceeded fifty percent of the total fault.

      The estate moved for a new trial based on instructional errors. The

district court overruled the motion, and the estate appeals.

      II. Issues.

      The estate raises five issues for our review. First, the estate argues

the district court erred by instructing the jury it could compare the fault

of Von Linden with the fault of Mercy.       Second, the estate claims the

district court erred by instructing on sole proximate cause. Third, the

estate argues the district court erred in failing to submit its “result of

treatment” instruction.    Fourth, it contends the district court erred in
                                     9

failing to give the jury an “eggshell plaintiff” instruction.     Finally, it

asserts the district court erred by failing to instruct the jury on the lost-

chance-of-survival doctrine.

      III. Scope of Review.

      We review a claim that the district court gave improper jury

instructions for correction of errors at law. Summy v. City of Des Moines,

708 N.W.2d 333, 340 (Iowa 2006). We review the related claim that the

district court should have given a party’s requested instructions for an

abuse of discretion. Id. “Error in giving or refusing to give a particular

instruction does not warrant reversal unless the error is prejudicial to

the party.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).

      IV. Comparative Fault.

      The primary issue is whether the district court committed

reversible error in submitting Mercy’s defense of the comparative fault of

Von Linden. The marshaling instruction (No. 16) for Mercy’s comparative

fault defense stated:

             The defendant claims the conduct of Elizabeth
      Von Linden in taking her own life was a proximate cause of
      plaintiff’s damages. In order to establish this defense the
      defendant must prove all of the following propositions.
            1. Elizabeth Von Linden was at fault in the taking of
      her own life.
            2. The conduct of Elizabeth Von Linden             was   a
      proximate cause of plaintiff’s damages.
            If the Defendant has failed to prove either of these
      propositions, the Defendant has not proved its defense. If
      the Defendant has proved both these propositions, then you
      will assign a percentage of fault against the Plaintiff and
      include the Plaintiff’s fault in the total percentage of fault
      found by you in answering the special verdicts.

      Instruction No. 8 stated, “Fault means one or more acts or

omissions towards the person of the actor or of another which

constitutes negligence.” Instruction No. 9 stated:
                                          10
             “Negligence” means failure to use ordinary care.
       Ordinary care is the care which a reasonably careful person
       would use under similar circumstances. “Negligence” is
       doing something a reasonably careful person would not do
       under similar circumstances, or failing to do something a
       reasonably careful person would do under similar
       circumstances. 1

The estate objected to the instructions and submission as follows:

              Plaintiff objects to the giving of Instruction Nos. 16,
       16A, 16B, and 17 dealing with proximate causation of
       plaintiff’s damages being caused by the decedent Elizabeth
       Von Linden. In that — and the sole proximate cause in
       those instructions fail to take into consideration and fail —
       and should not be given because in this record the evidence
       is that this conduct of the defendant is the one that caused
       this to happen and that anything that Elizabeth Von Linden
       did thereafter is a result and cumulative upon the conduct of
       the defendant — of the defendant in this case. Therefore, it’s
       inappropriate to be instructing the jury in connection with
       that or any kind of comparative fault concepts in this case.
              Furthermore, Your Honor, we object to the jury verdict
       form to the extent that the verdict form submits the issue of
       fault of Elizabeth Von Linden as being comparative or being
       a proximate cause and do not believe that there should be
       anything in Question No. 9 assessing fault to Elizabeth
       Von Linden.

       The trial court overruled the estate’s objection.               The jury was

informed, as required by Iowa Code section 668.3(5), that the estate

would be barred from recovery if Von Linden was found more than fifty
percent at fault. The jury ultimately found Von Linden ninety percent at

fault, resulting in entry of judgment in Mercy’s favor.

       The estate’s brief supporting its motion for new trial and its

appellate briefing clarify the reasons it argues the district court erred in

submitting Von Linden’s comparative fault.             First, the estate contends

that suicide is an intentional act that cannot be compared under Iowa



       1Mercy   did not request submission of a specification of fault or instruction on
Von Linden’s recklessness, unreasonable assumption of risk, failure to avoid an injury,
or to mitigate damages.
                                    11

Code chapter 668 with Mercy’s negligence. Second, relying on case law

from other jurisdictions, the estate contends “there can be no

comparative negligence where the defendant’s duty of care includes

preventing any self-abusive or self-destructive acts that cause the

plaintiff’s injury.” Third, the estate argues Von Linden lacked the mental

capacity to be found negligent or responsible for her actions at the time

of her suicide.   We address that issue first because, if the estate is

correct, it would be unnecessary to decide the other challenges to the

submission of Von Linden’s fault.

      A. Did the Estate Establish Von Linden Lacked the Mental

Capacity to Be Found Negligent?          The estate contends the district

court erred in submitting Von Linden’s comparative negligence because,

at the time of her suicide, she lacked the mental capacity to be found

negligent.   Mercy contends the estate failed to preserve error on this

“mental incapacity” argument that the estate raised for the first time in

its motion for a new trial.      The estate’s general objection to the

submission of comparative fault did not specifically urge that Von Linden

lacked the mental capacity to be found negligent, nor did the estate

request a jury instruction on her incapacity or diminished capacity.

Although we have doubts whether error was preserved on this issue, we

decide it on the merits.

      Whether a person suffering from a mental disease lacks the

capacity to be found negligent is generally a question of fact.       See

Borchard v. Anderson, 542 N.W.2d 247, 249 (Iowa 1996) (“The issue

whether a person is mentally ill for purposes of the tolling statute is

factual.”); cf. Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682,

684–85 (Iowa 1993) (whether a child older than age three is capable of

negligence is a factual determination). The estate argues the very fact of
                                    12

Von Linden’s suicide establishes her mental incapacity because a person

who is a danger to herself can be involuntarily committed. Iowa R. Crim.

P. 2.22(8)(b), (e). Her suicide alone, however, does not preclude a finding

of comparative negligence, as the Illinois Supreme Court recognized in

Hobart v. Shin:

      [P]eople generally have a duty to exercise ordinary care for
      their own safety. We are not prepared to hold . . . that this
      principle is inapplicable to all patients who commit suicide
      while under treatment for suicidal tendencies. Rather, we
      believe the better-reasoned approach is as another court has
      written on this subject:
             “[T]he issue of contributory negligence of a mentally
      disturbed person is a question of fact; unless, of course, the
      evidence discloses that the person whose actions are being
      judged is completely devoid of reason. If he is so mentally ill
      that he is incapable of being contributorily negligent, he
      would be entitled to have the jury so instructed . . . . But
      only in those cases in which the evidence would admit to no
      other rational conclusion would plaintiff be entitled to have
      the issue determined as a matter of law.”

705 N.E.2d 907, 910–11 (Ill. 1998) (quoting De Martini v. Alexander

Sanitarium, Inc., 13 Cal. Rptr. 564, 567 (Ct. App. 1961) (citation

omitted)).

      We conclude the estate failed to establish that Von Linden was so

mentally incapacitated she was incapable of being found negligent as a

matter of law. At the time of her death, Von Linden was being treated as

an outpatient and working at her executive-level job.         Her suicide

occurred three weeks after her discharge from the hospital and six days

after her office visit with Dr. Jennisch. This scenario is unlike custodial

cases involving the death or injury of an institutionalized patient

incapable of self-care. See Tomfohr v. Mayo Found., 450 N.W.2d 121, 125

(Minn. 1990) (holding on the facts of that case that the mentally ill

patient admitted to locked hospital ward for suicidal ideations “lacked

the capacity to be responsible for his own well being”). Plaintiff’s own
                                     13

expert testified that, at the time of her last visit with Dr. Jennisch on

June 23,   Von Linden    was   not   a    candidate   for   involuntary   civil

commitment. Indeed, her supervisor testified that on June 27, two days

before her suicide, she was performing her job well. See Borchard, 542

N.W.2d at 249–50 (holding as a matter of law plaintiff failed to establish

mental disability to toll statute of limitations while she was holding a job

and raising children).

      Other courts have recognized that juries should be instructed to

consider the diminished mental capacity of the suicidal patient. Maunz

v. Perales, 76 P.3d 1027, 1035 (Kan. 2003) (jury should consider mental

capacity of suicide victim in evaluating comparative fault). We need not

determine whether the estate would have been entitled to a jury

instruction on Von Linden’s diminished mental capacity, however,

because the estate never requested such an instruction at trial.

Accordingly, the estate is not entitled to a new trial on grounds of

Von Linden’s mental incapacity.

      B. Does Iowa Chapter 668 Allow a Comparative Fault Defense

Based on an Act of Suicide? The estate argues suicide is an intentional

act that cannot be compared with Mercy’s negligence because intentional

torts were omitted from the definition of “fault” in Iowa Code section

668.1(a). Specifically, the estate argues in this appeal:

      As negligence and an intentional tort cannot be compared, a
      comparative fault instruction should not have been
      submitted in this case. Negligence is not a defense to an
      intentional tort. Tratchel v. Essex Group, Inc., 452 N.W.2d
      171, 180–81 (Iowa 1990). A suicide likewise is not an
      appropriate basis for an assessment of comparative fault to
      be compared with treating mental health professionals’
      deviation from the standard of care with regard to a
      plaintiff’s mental health condition.        In this medical
      negligence case, an intentional act of suicide is not a proper
      factual basis upon which to submit comparative fault.
                                     14

The estate’s objection to the submission of Von Linden’s comparative

fault at trial did not include this specific argument. Mercy’s appellate

brief, however, concedes error was preserved, so we will decide this

question on the merits.

      Whether Iowa Code chapter 668 allows mental health professionals

to raise a comparative fault defense based on their patient’s act of suicide

is a question of first impression in Iowa.     The answer is a matter of

statutory interpretation.

      The purpose of statutory interpretation is to determine the

legislature’s intent. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).

“The first step in ascertaining the true intent of the legislature is to look

at the statute’s language.” Estate of Ryan v. Heritage Trails Assocs., Inc.,

745 N.W.2d 724, 729 (Iowa 2008). When the statute’s language is plain

and unambiguous, we will look no further. Id. at 730. We determine the

legislature’s intent by the words the legislature chose, not by what it

should or might have said.     State v. Wiederien, 709 N.W.2d 538, 541

(Iowa 2006). We also consider the legislative history of a statute when

ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366 (Iowa

2006). We may not extend, enlarge, or otherwise change the meaning of

a statute under the guise of construction. Auen v. Alcoholic Beverages

Div., 679 N.W.2d 586, 590 (Iowa 2004). In construing our comparative

fault act, “[w]e seek a reasonable construction that will accomplish the

purpose of the legislation and avoid absurd results.” Hagen v. Texaco

Ref. & Mktg., Inc., 526 N.W.2d 531, 542–43 (Iowa 1995).

      We begin with a review of the history of chapter 668 to put the

operative statutory language in context.     At common law, a plaintiff’s

contributory negligence was a complete bar to recovery.        Goetzman v.

Wichern, 327 N.W.2d 742, 744 (Iowa 1982), superseded by statute, Iowa
                                     15

Code ch. 668. In Goetzman, we replaced the common law bar with the

doctrine of pure comparative negligence “under which an injured party’s

recovery is diminished in proportion to that party’s contributory

negligence, and recovery is not barred unless the injured party’s

negligence is the sole proximate cause of the damages.”             Id.   The

legislature responded the following year by enacting the Comparative

Fault Act, Iowa Code chapter 668. 1984 Iowa Acts ch. 1293. We have

noted “[b]y its terms, the purpose of the comparative fault act is to

establish ‘comparative fault as the basis for liability in relation to claims

for damages arising from injury to or death of a person or harm to

property.’ ”   Waterloo Sav. Bank v. Austin, 494 N.W.2d 715, 717 (Iowa

1993) (quoting 1984 Iowa Acts ch. 1293).           We have described the

legislative intent underlying chapter 668 as follows:

      In general, the purpose of section 668.3 is to make
      defendants pay in proportion to their fault. Correspondingly,
      any reduction in a plaintiff'’s recovery represents a way of
      making the plaintiff “pay” for his or her proportional
      responsibility. In other words, section 668.3(1) prevents a
      plaintiff from being compensated for fault that he or she
      should fairly bear.

Godbersen v. Miller, 439 N.W.2d 206, 208 (Iowa 1989) (citation omitted).
      Here, the estate seeks a full recovery from Mercy for Von Linden’s

self-harm, without any reduction for her own responsibility. We find no

support for that outcome in the text, history, or purpose of chapter 668.

      1. Does suicide fall within the definition of fault in section 668.1(1)?

The fighting issue is whether Von Linden’s suicide can be considered as

fault under chapter 668. The legislature defined fault as

      one or more acts or omissions that are in any measure
      negligent or reckless toward the person or property of the
      actor or others, or that subject a person to strict tort
      liability.  The term also includes breach of warranty,
      unreasonable assumption of risk not constituting an
                                     16
        enforceable express consent, misuse of a product for which
        the defendant otherwise would be liable, and unreasonable
        failure to avoid an injury or to mitigate damages.

Iowa Code § 668.1(1) (emphasis added).

        Because Von Linden’s fault was submitted under a negligence

theory, we must decide whether her act of taking her own life is an “act[]

or omission[] that [is] in any measure negligent” within the meaning of

section 668.1(1).    The Iowa legislature adopted the definition of fault

verbatim from the Uniform Comparative Fault Act, section 1.              The

Uniform Act and its Iowa counterpart omit intentional torts from the

definition of fault. The comment to the Uniform Act states the act does

not apply “in a case in which the defendant intentionally inflicts the

injury on the plaintiff.” Unif. Comparative Fault Act § 1 cmt., 12 U.L.A.

125, 126 (2008).     No comment addresses a plaintiff’s intentional self-

harm.

        It is important to note that the jury was not asked to compare

Mercy’s negligence with an intentional tort by Von Linden, such as

battery.   Rather, Mercy based its defense on Von Linden’s negligence.

The estate is not permitted to change how Mercy framed its defense from

one of negligence to an intentional tort in order to bar the defense. The

estate argues Von Linden’s suicide cannot be considered negligent

because it is an intentional act.         This argument rests on a false

premise—that negligent conduct cannot include intentional self-harm.

The district court correctly defined “negligence” in jury instruction No. 9:

        “Negligence” means failure to use ordinary care. Ordinary
        care is the care which a reasonably careful person would use
        under similar circumstances.         “Negligence” is doing
        something a reasonably careful person would not do under
        similar circumstances, or failing to do something a
        reasonably careful person would do under similar
        circumstances.
                                    17

         Clearly, a reasonably careful person would not hang herself. We

hold the act of suicide can be found “negligent” within the meaning of

section    668.1(1).    Support   for    our     conclusion   that   negligence

encompasses intentional conduct is found in the Restatement (Third) of

Torts:    Apportionment of Liability.    “Plaintiff’s negligence can include

conduct that is reckless, grossly negligent, or intentional.” Restatement

(Third) of Torts: Apportionment of Liability § 3, cmt. a, at 29 (2000). The

concept of negligence contemplates that every person must act as a

reasonable person would have acted under the same or similar

circumstances. Id. § 3, at 29. The same standard of care that applies to

a defendant also applies to a plaintiff when assessing contributory

negligence.    Id. § 3, cmt. a, at 29–30.      If a person acts with intent to

cause harm, the person necessarily breaches a duty to act as a

reasonable person.      Accordingly, within the context of a claim for

damages based on negligence, conduct by the plaintiff that was intended

to cause self-harm constitutes an act that is “in any measure negligent

. . . toward the . . . actor” because a person who intentionally causes

harm also fails to act as a reasonable person. Iowa Code § 668.1(1).

         The drafting history of chapter 668, based on the Uniform

Comparative Fault Act, provides further support for our conclusion that

the intentional nature of conduct does not preclude a comparative fault

defense when “one or more acts or omissions” of the party “in any

measure” fall within a form of fault expressly included in section

668.1(1). Suicide falls easily within the term “unreasonable assumption

of risk” found in section 668.1(1). Our court has relied on the drafter’s

comments to the Uniform Act in construing the Iowa act.              See, e.g.,

Baldwin v. City of Waterloo, 372 N.W.2d 486, 493 (Iowa 1985).              The

drafters of the Uniform Act said this about assumption of risk:
                                     18
      “Assumption of risk” is a term with a number of different
      meanings—only one of which is “fault” within the meaning of
      this Act. This is the case of unreasonable assumption of
      risk, which might be likened to deliberate contributory
      negligence and means that the conduct must have been
      voluntary and with knowledge of the danger.

Unif. Comparative Fault Act § 1 cmt., 12 U.L.A. 125, 126 (2008). The

drafters   thereby   equate    “assumption     of   risk”   with   “deliberate

contributory negligence,” encompassing voluntary conduct undertaken

with knowledge of the danger.

      The Washington Comparative Fault Act’s definition of “fault” is

identical to Iowa’s. Wash. Rev. Code § 4.22.015 (2005). Yet despite the

omission of intentional torts from that definition, in Gregoire v. City of

Oak Harbor, five of nine justices on the Washington Supreme Court

concluded a suicidal inmate’s fault could be compared with his negligent

jailer’s, if on remand the jury did not find the jail assumed plaintiff’s duty

of self-care during his incarceration. 244 P.3d 924, 937 (Wash. 2010)

(Madsen, C.J., concurring in part, dissenting in part) (“[A]bsent proof

that the jail assumed Gregoire’s duty of self-care, the trial court on

remand should be free to consider whether to instruct the jury on

comparative fault.”); id. at 938 n.1 (Alexander, J., dissenting) (same).

The four-justice plurality concluded that the jailer’s special duty to an

inmate precluded submission of comparative fault defenses, without

attributing that result to the omission of intentional torts from the

comparative fault act. Id. at 932.

      Our conclusion that suicide may constitute negligence within the

meaning of section 668.1(1) is supported by the majority of jurisdictions

holding that, notwithstanding the intentional nature of the act of suicide,

the jury is permitted to compare the negligence of the noncustodial

suicide victim with the fault of the defendant medical professional
                                           19

treating her. See, e.g., Sheron v. Lutheran Med. Ctr., 18 P.3d 796, 801

(Colo. App. 2000) (“[W]e hold that a patient who is treated by health care

providers for suicidal ideations, and who later commits suicide, may be

found comparatively negligent or at fault . . . .”); Brandvain, 372 S.E.2d

at 275 (holding comparative fault of suicidal patient was a question for

the jury); Hobart, 705 N.E.2d at 911 (finding “the better-reasoned

approach” is to allow physician to raise defense of the patient’s

negligence when mental capacity is a question of fact); Maunz, 76 P.3d at

1035 (holding trial court correctly submitted defense of comparative

negligence in malpractice action against psychiatrist arising from suicide

several days after discharge from hospital); Champagne, 513 N.W.2d at

79 (“Comparison of fault between a suicide victim and a defendant, who

has a duty of medical care toward that victim, is generally for the trier of

fact.”).   These jurisdictions compared the fault of the noncustodial

suicidal patient regardless of whether the respective state law allows a

comparative fault defense to intentional torts. 2

       The lone outlier is the Tennessee Supreme Court’s decision in

White v. Lawrence, 975 S.W.2d 525, 531–32 (Tenn. 1998) (physician’s

“liability may not be reduced by comparing his negligent conduct with


       2The    North Dakota Comparative Fault Act expressly includes “willful conduct” in
its definition of fault. Champagne, 513 N.W.2d at 79 (“ ‘Fault’ now includes an
intentional act.”). The other jurisdictions, like Iowa, hold that comparative negligence is
not a defense to an intentional tort. Slack v. Farmers Ins. Exch., 5 P.3d 280, 285 (Colo.
2000) (noting Colorado’s “comparative negligence statute refers only to the negligence of
the victim and the negligence of the tortfeasor”); Terrell v. Hester, 355 S.E.2d 97, 98
(Ga. Ct. App. 1987) (holding comparative fault instruction as to plaintiff’s negligence
was inappropriate where plaintiff was battered); Mother Earth, Ltd. v. Strawberry Camel,
Ltd., 390 N.E.2d 393, 405 (Ill. App. Ct. 1979) (“[I]t is well-settled that an action for an
intentional tort cannot be defeated by an assertion of negligence on the part of the
plaintiff.”); Lynn v. Taylor, 642 P.2d 131, 135 (Kan. Ct. App. 1982) (noting there is “no
authority for including an intentional tort such as fraud within the ambit of
comparative fault principles”). Nevertheless, the courts in those jurisdictions allow
juries to compare the fault of the noncustodial suicidal patient.
                                        20

the decedent’s intentional act of committing suicide”). White is the only

noncustodial suicide case cited by the estate in support of the position

the district court erred in submitting the comparative fault defense. In

White, a depressive alcoholic shot himself four hours after leaving an

emergency room.        Id. at 527–28.   A narrow majority of three justices

relied exclusively on custodial cases to disallow a comparative fault

defense based on harm the psychiatrist had a duty to prevent,

concluding the “same principles” applied “with equal force” to the

outpatient suicide. Id. at 531. The majority noted practical difficulties

“allocating fault between negligent and intentional acts [that] are

different in degree, in kind, and in society’s view of the relative culpability

of each act.” Id.

      Two justices dissented in part. Justice Drowata stated:

            I disagree, however, with the majority’s conclusion that
      the decedent’s intentional act of committing suicide may not
      be considered in determining relative degrees of fault. The
      majority’s holding that the negligence of the defendant may
      not be compared with the intentional conduct of the
      decedent in taking his own life in assessing fault is
      inconsistent with the fundamental principle of comparative
      fault of linking liability with fault. Therefore, I respectfully
      dissent from the majority’s decision.

Id. at 532 (Drowata, J., concurring in part, dissenting in part). Similarly,

Justice Holder dissented to the extent the majority opinion is read to

preclude a comparative negligence defense in an appropriate case,

stating “[a] patient’s negligent acts or omissions have always been

available as a defense.”      Id. at 534 (Holder, J., concurring in part,

dissenting in part).

      The Kansas Supreme Court expressly declined to follow White for

reasons we find persuasive. See Maunz, 76 P.3d at 1033. The Maunz

court concluded custodial cases are “of dubious value” in adjudicating
                                    21

comparative fault in an outpatient setting. Id. at 1032. The Maunz court

aptly observed that, when a “known, actively suicidal patient is

hospitalized, the hospital and health care providers assume the patient’s

duty of self-care.”   Id.   By contrast, patients who are treated on an

outpatient basis “generally have a duty to exercise ordinary care for their

own safety.” Id.

      We find the Maunz court’s approach to be a better fit with Iowa’s

law of comparative fault.     The Maunz court recognized a comparative

fault defense in a noncustodial suicide case in part because the “state

legislature has statutorily established a policy of comparing the

negligence of all persons involved in a civil wrong, in one trial, and

awarding damages in tort based on comparative fault.”        Id.; see also

Sheron, 18 P.3d at 801 (to withhold defense of patient’s comparative

negligence “would ignore the strong policy in Colorado of apportioning

fault in tort actions”); Hobart, 705 N.E.2d at 910–11 (relying on Illinois

comparative fault statute to conclude suicidal plaintiff owed duty of care

for her own safety). Similarly, “Iowa’s comparative fault statute expressly

states that the fault of other parties is to be compared in cases of

negligence, recklessness, and strict liability.” Jahn v. Hyundai Motor Co.,

773 N.W.2d 550, 560 (Iowa 2009) (declining to find an exception to the

application of comparative fault principles in product liability enhanced

injury cases because “the legislature has not provided for such an

exception”).

      We recognize policy arguments exist for creating an exception to

the comparative fault approach when the defendant owed the plaintiff a

duty to protect the plaintiff from harm.    We declined to recognize an

exception in Jahn, even though a similar policy argument supported

denying the motor vehicle manufacturer in a crashworthiness case a
                                     22

comparative fault defense based on the driver’s negligence. A reasonable

legislator could conclude that vehicle manufacturers must foresee and

protect against collisions and that their incentive to build in safety

should not be diluted by allowing jurors to compare the fault of careless

drivers.   Similarly, a reasonable legislator could conclude that mental

health practitioners with a duty to prevent suicide should be denied a

comparative fault defense when the patient kills herself. The legislature,

however, created no such exceptions in the Iowa Comparative Fault Act,

and it is not our prerogative to rewrite the statute to do so.

      Accordingly, we construe chapter 668 to permit a comparative fault

defense in a medical malpractice action arising from a noncustodial

suicide.

      2. Does the Tratchel rule require a new trial? In Tratchel, we held

chapter 668 did not allow a comparative fault defense to an intentional

tort claim of fraud. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 180–

81 (Iowa 1990), abrogated on other grounds by Comes v. Microsoft Corp.,

775 N.W.2d 302, 310 (Iowa 2009). The estate contends that the Tratchel

rule precludes Mercy from raising a comparative fault defense to

Von Linden’s intentional act of suicide. Tratchel remains good law for the

proposition that an intentional tortfeasor cannot reduce his liability by

raising a defense of the victim’s comparative negligence.        Tratchel,

however, does not support the result sought by the estate.

      Tratchel arose from a liquid petroleum gas explosion. Id. at 173.

Carl Tratchel purchased a gas furnace equipped with a gas control unit

manufactured by Essex. Id. The gas was turned off for a period when

the house was vacant. Id. Carl returned on a cold autumn day and lit a

match to start the furnace, resulting in an explosion that badly burned
                                       23

Carl and his mother. Id. The Tratchels sued multiple defendants; all but

Essex settled. The case went to the jury as follows:

               At the close of the evidence, the trial court submitted
        special verdicts and interrogatories which incorporated
        plaintiffs’ three theories of liability against Essex. Plaintiffs
        alleged Essex manufactured a defective gas control unit and
        sought recovery based on: (1) strict liability; (2) negligence;
        and (3) fraud due to the withholding of facts about known
        product defects which misled defendant’s customers and
        ultimately the consumers.          On the strict liability and
        negligence counts, the court submitted a special verdict
        allocating fault to Essex, Carl and the settling defendants.
        The jury returned verdicts in favor of the plaintiffs on all
        three theories of liability, allocating fifty percent of the fault
        to Essex, one percent to Carl and the remaining forty-nine
        percent to the settling defendants except Fisher Controls,
        which was found faultless.

Id. at 174.    The district court entered judgment against Essex on the

fraud theory for 100% of plaintiffs’ damages without any reduction for

the comparative fault of Carl or the settling defendants. Id. The district

court allowed a pro tanto (dollar for dollar) setoff for the amounts

recovered by the Tratchels from the settling defendants. We affirmed. Id.

at 181.    We noted that “the tort of fraud is not mentioned in chapter

668.”    Id. at 180.   In holding the district court “correctly rejected the

application of comparative fault to the fraud claim,” we observed:

        Prior to the adoption of chapter 668, our case law held that
        negligence is not a defense to fraud or to an intentional tort.
        Had the legislature intended chapter 668 to cover fraud
        actions, it could have easily included fraud in section 668.1.

Id. at 180–81 (citations omitted).

        Tratchel teaches that claims outside the scope of chapter 668 are

governed by Iowa common law.          For that reason, Tratchel allowed the

nonsettling defendant, Essex, a complete setoff of the settlement

amounts under the common law pro tanto rule instead of applying
                                     24

chapter 668 to reduce plaintiffs’ fraud recovery by the forty-nine percent

of fault the jury attributed to the settling defendants. Id. at 181.

      This “default to the common law” approach is also illustrated in

Carson v. Webb, 486 N.W.2d 278, 280 (Iowa 1992), holding section

668.14, the statutory modification of the collateral source rule, did not

apply to an action for assault and battery because intentional torts are

not included in section 668.1(1)’s definition of fault. We concluded the

district court erred in allowing evidence of medical insurance payments

under that section because the common law collateral source rule

governed in intentional tort cases. Id. In other words, if chapter 668 is

inapplicable to a particular tort claim, the common law governs. This

does not help the estate because Iowa common law allowed no recovery

for intentional self-harm absent a special custodial relationship.     See

Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178, 182 (Iowa 1991)

(“Traditionally suicide has been considered an intentional or intervening

act for which the tortfeasor cannot be held responsible”—noting

exception “where the decedent is confined in a hospital or jail.”).

      The drafters of the Uniform Act, and in turn the Iowa legislature,

chose to refrain from giving intentional wrongdoers—who are 100% liable

for their harm under common law—a break by allowing them to raise a

statutory defense of their victim’s negligence.     See Flood v. Southland

Corp., 616 N.E.2d 1068, 1071–72 (Mass. 1993) (concluding intentional

torts were omitted from that state’s comparative fault act because a

“contrary conclusion would result in [comparative negligence] reducing

plaintiffs’ recoveries in cases to which the concept of contributory fault

had no common law application, an unlikely legislative intention”). This

leaves the common law outcome intact—a party is fully responsible for

intentional harm notwithstanding the opposing party’s negligence. The
                                     25

Iowa legislature is presumed to know the state of the law at the time of

enactment. Slager v. HWA Corp., 435 N.W.2d 349, 353–54 (Iowa 1989)

(holding dram defendant not entitled to a comparative fault defense

under chapter 668 because negligence was not a defense to the dram

statute when the comparative fault act was enacted).

      We find no comment or indication in the Uniform Act that the

drafters intended the omission of intentional torts to allow a plaintiff a

full recovery for her own intentional harm.      This legislative choice—to

withhold the benefits of the comparative fault act from intentional

wrongdoers—is a far cry from the estate’s position that a plaintiff

committing an intentional act is to be exonerated from any accountability

for the resulting self-harm in her action against a negligent defendant.

The estate cites no Iowa case, nor have we found one, that bars a

negligent defendant from raising a defense based on the plaintiff’s own

intentional act. The estate’s argument would lead to a “heads I win, tails

you lose” situation in which a defendant who commits an intentional tort

could not raise the plaintiff’s fault, but a plaintiff who commits an

intentional tort could not have its own fault raised against it.

      Significantly for present purposes, the Iowa legislature adopted a

modified system of comparative fault under which a plaintiff found over

fifty percent at fault was barred from recovery. Iowa Code § 668.3(1)(b).

Chapter 668 legislatively overruled Goetzman’s “pure” comparative fault

system under which a plaintiff found ninety percent at fault could still

recover ten percent of his damages. The Iowa legislature thus made a

conscious policy choice that a plaintiff whose negligence is found to

exceed fifty percent of the total fault cannot recover any damages from a

negligent defendant.    We conclude that the same legislature did not
                                      26

intend the same statute to require a negligent defendant to pay 100% of

the damages a plaintiff intentionally inflicts.

        We refrain from construing our comparative fault act to reach an

absurd result.     Hagen, 526 N.W.2d at 542–43.          Under the estate’s

interpretation of the Act, a plaintiff who intentionally causes damage

could recover in full, even though a merely negligent plaintiff found over

fifty percent at fault would be barred from any recovery. This leads to

absurd results. For example, a plaintiff who carelessly, but accidentally,

sets her home ablaze would have her recovery against a negligent fire

protection service barred or reduced by her own comparative fault; yet a

homeowner who intentionally sets her dwelling ablaze could recover in

full.

        The estate’s position is not supported by Stevens v. Des Moines

Independent Community School District, 528 N.W.2d 117 (Iowa 1995).

That case merely held the district court erred in submitting an all-or-

nothing instruction on superseding cause in the plaintiff-student’s

negligence action against a school for failing to prevent a foreseeable

assault by another student. Id. at 120–21. The case did not adjudicate

or even discuss comparative fault, nor is chapter 668 even mentioned.

The case law involving intentional acts of third parties is equally

inapposite.    Those cases are distinguishable because the comparative

fault at issue here is the plaintiff’s, not a nonparty or third-party

tortfeasor blamed for intentionally causing the plaintiff’s harm.

        For the foregoing reasons, if suicide is outside the scope of chapter

668, the estate would not be entitled to a new trial because recovery for

Von Linden’s intentional self-harm is barred at common law.         Tratchel

does not require a new trial.
                                    27

      C. Does the Treater’s Duty to Prevent Suicide Preclude a

Comparative Fault Defense Based on That Occurrence? The estate

contends Mercy was negligent in allowing Von Linden’s premature

discharge from her initial hospitalization and should not be permitted to

raise a defense based on the very occurrence of the suicide it had a duty

of care to prevent. Mercy, however, presented credible expert testimony

Von Linden’s discharge from the hospital on June 8 was medically

appropriate.   Von Linden remained an outpatient until her suicide on

June 29.   Experts for both sides agreed that, as of June 23, her last

outpatient visit with Dr. Jennisch, Von Linden was not a candidate for

involuntary civil commitment. To outward appearances, she was doing

well and, indeed, was performing her executive-level job.     Accordingly,

this case is readily distinguishable from custodial suicide cases involving

the death of an institutionalized patient or inmate.

      Courts in other jurisdictions have withheld a comparative fault

defense in custodial suicide cases because the hospital had assumed the

patient’s duty of self-care. See, e.g., Tomfohr, 450 N.W.2d at 125 (noting

the patient “cannot be held responsible in whole or in part for the breach

of the duty to exercise care for his own well-being because the hospital

had already assumed that duty”). The Tomfohr court expressly limited its

holding to the custodial setting:

      [W]e wish to stress that this ruling is limited to the type of
      factual situation presented by this case, to-wit, an attempted
      suicide committed by a mentally ill patient admitted to a
      locked hospital ward where the medical staff was aware of
      his suicidal ideations.

Id.   As noted above, the overwhelming majority of cases involving

noncustodial suicide have held that the outpatient owes a duty of self-
                                    28

care. The North Dakota Supreme Court rejected the very argument made

by the estate here:

             We are not persuaded by the Champagnes’ argument
      that, when a patient’s act of suicide is a foreseeable result of
      a medical provider’s failure to treat reasonably to prevent the
      suicide, it is never appropriate to compare the victim’s act of
      suicide with the medical provider’s fault. Rather, if the
      evidence shows that the patient is incapable of being
      responsible for his own care and that the medical provider
      has undertaken the duty of care for the patient’s well-being,
      there would be no allocation of fault to the patient. If the
      medical provider has taken on the duty of caring for a
      patient with a diminished capacity, and if the patient is
      capable of being responsible for his own care, allocation of
      fault is in order.

Champagne, 513 N.W.2d at 80 (citations omitted); Maunz, 76 P.3d at

1033–34 (same); see also Sheron, 18 P.3d at 801 (rejecting blanket rule

disregarding suicidal patient’s comparative fault because “such a rule

would fail to account for the nearly limitless different factual scenarios

involved in these cases, many of which could well involve some fault by

the patient”); Birkner v. Salt Lake County, 771 P.2d 1053, 1060 (Utah

1989) (noting that mental impairments in emotional disorders come in

infinite degrees and concluding that categorical rule that no patient

seeking help for a mental or emotional disorder can be charged with
negligence would be unrealistic and cause damage to the principle of

comparative negligence).

      We recognize a comparative fault defense to a medical malpractice

action when the plaintiff fails to follow the doctor’s instructions as to

follow-up care.   See DeMoss v. Hamilton, 644 N.W.2d 302, 306 (Iowa

2003) (“[A] patient’s failure to cooperate with or follow reasonable

directions for the treatment of an ailment may be relevant in the

appropriate case” as evidence of comparative fault.).      Von Linden was

instructed when she was discharged from the hospital on June 8 to call
                                      29

the Help Center or return for care if her condition worsened. When she

met with Dr. Jennisch on June 23, he told her to call him if she had any

problems or concerns in the interim before her next appointment in two

weeks. She failed to call Dr. Jennisch or the Help Center or return for

any further care over the next six days before her suicide on June 29. A

reasonable jury could find Von Linden negligent in this regard. Indeed,

this jury found Von Linden ninety percent at fault.

      The estate did not object to the district court’s submission of her

comparative fault on grounds the jury instructions failed to specify acts

or omissions of negligence apart from taking her own life.          Rather,

plaintiff’s counsel simply objected

      to the verdict form to the extent that the verdict form
      submits the issue of fault for Elizabeth Von Linden as being
      comparative or as being a proximate cause and does not
      believe that there should be anything in question in No. 9
      assessing any fault to Elizabeth Von Linden.

We encourage the bench and bar to include factual specifications that

explicitly set forth the particular acts or omissions constituting

negligence.   See Coker v. Abell-Howe Co., 491 N.W.2d 143, 151 (Iowa

1992) (stating the purpose of requiring jury to consider specifications of

negligence is to limit the determination of factual questions to only those

acts or omissions upon which a particular claim is based and to allow

the court the opportunity to make a preliminary determination of the

sufficiency of the evidence to generate a jury question).          We also

encourage trial counsel to be specific in objections to jury instructions to

give the district court and opposing counsel the opportunity to correct

the instructions before they are read to the jury. If the estate’s counsel

had challenged the comparative fault instruction on grounds of lack of

specificity at the instruction conference, Mercy could have added factual
                                       30

specifications of Von Linden’s negligence, consistent with the evidence,

including her failure to follow medical advice to call the Help Center or

return for care if her condition worsened. The estate is not entitled to a

new trial based on lack of specificity when it failed to object on that

basis.

         In any event, independent of any failure to follow medical advice,

the jury could find Von Linden’s ultimate act of suicide of itself breached

her duty of ordinary care for her own safety.                We conclude that

Von Linden’s comparative fault was a question of fact for the jury. The

estate, in effect, seeks an adjudication that Von Linden was not

comparatively negligent as a matter of law.         “It is only in the plainest

cases, in which reasonable minds could come to no other conclusion,

that we decide a question of contributory negligence as a matter of law.”

Peters v. Howser, 419 N.W.2d 392, 394 (Iowa 1988) (citing Iowa R. App.

P. 14(f)(10) (now Iowa R. App. P. 6.904(3)(j))).

         We also agree with the conclusion of the Illinois Supreme Court in

Hobart     that   a   rule   eliminating   a   comparative   fault   defense   in

noncustodial suicide cases would make bad public policy. The Hobart

court aptly observed:

         The consequence of such a ruling would be that no health
         care provider would want to risk the liability exposure in
         treating such a patient and, thus, suicidal persons would be
         denied necessary treatment. Public policy cannot condone
         such a result.

705 N.E.2d at 911. Not only would the rule sought by the estate deter

some doctors from treating suicidal patients, such a rule would also

encourage other doctors to practice defensive medicine by lengthening a

mental patient’s hospitalization beyond what is medically necessary.
                                    31

This would increase costs at a time of scarce resources for mental health

care in our state.

      V. Other Issues Raised on Appeal.

      A. Sole Proximate Cause. The estate claimed it was error for the

district court to instruct the jury to decide whether the conduct of

Von Linden in taking her own life was the sole proximate cause of the

estate’s damages.    “ ‘Sole proximate cause means the only proximate

cause.’ ”   Summy, 708 N.W.2d at 342 (quoting Johnson v. Interstate

Power Co., 481 N.W.2d 310, 323 (Iowa 1992)).             The concept of sole

proximate cause is problematic at best in a medical malpractice action

against a mental health professional treating a suicidal patient.       The

North Dakota Supreme Court stated, “[W]hen a patient’s suicide is a

foreseeable consequence of the medical provider’s negligent care, the act

of suicide cannot be deemed a superseding intervening cause.”

Champagne, 513 N.W.2d at 81 (allowing comparative fault defense).

Similarly, our own cases have held juries should not be instructed on

sole proximate cause or superseding cause based on the foreseeable

negligence of third parties when the defendant owed a duty to protect

plaintiff from such harm.       See, e.g., Summy, 708 N.W.2d at 343

(nonparty golfer’s errant shot that struck plaintiff in eye “cannot, as a

matter of law, be the sole proximate cause of the plaintiff’s injury” in

negligence action against golf course owner for unsafe layout of tees);

Stevens, 528 N.W.2d at 120–21 (reversible error to submit superseding

cause instruction based on assault by nonparty in plaintiff student’s

negligent supervision action against school district).

      In this case, the estate was not prejudiced by any error in

submitting the sole proximate cause defense because the jury found

Von Linden’s conduct was not the sole proximate cause of the estate’s
                                       32

damages. Accordingly, the estate is not entitled to a new trial on this

ground.    See Herbst, 616 N.W.2d at 585 (reversal required only if

instructional error is prejudicial).

      B. Result of Treatment Instruction. The estate also claims the

district court abused its discretion in failing to give an instruction

allowing the jury to consider Von Linden’s suicide as evidence of Mercy’s

negligence. The estate’s proposed instruction stated:

      While the result of the treatment administered to Elizabeth
      Von Linden, by the Defendants is not in itself evidence of
      negligence, it is a circumstance which may be considered by
      you in determining whether the result was caused by
      Defendants’ negligence.

(Emphasis added.) This instruction is substantially similar to the “result

of treatment” instruction we disapproved in Smith v. Koslow, 757 N.W.2d

677 (Iowa 2008). The Koslow plaintiff’s proposed instruction stated:

      While the result alone is not, by itself, evidence of negligence,
      yet the same may nevertheless be considered, together with
      other facts and circumstances disclosed by the evidence in a
      given case in determining whether or not such result is
      attributable to negligence or want of skill.

Id. at 679. We held the district court properly rejected this instruction as

an incorrect rule of law for a medical malpractice action requiring expert
testimony, stating:

      Smith did not seek an additional instruction that would have
      informed the jury that a bad result could be considered by
      an expert witness in formulating his or her opinion. Instead,
      she sought an instruction that would permit the jury to do so
      in a case that required expert testimony. Under Iowa law, a
      court must give a requested instruction when it states a
      correct rule of law applicable to the facts of the case and is
      not embodied in other instructions.               Under the
      circumstances of this case, the district court did not abuse
      its discretion in refusing to give the requested instruction
      because the instruction was not applicable to the facts of
      this case.

Id. at 682–83 (citation omitted).
                                     33

      Expert testimony was required in this case to generate a jury

question as to Mercy’s negligence.        See, e.g., Donovan v. State, 445

N.W.2d 763, 766 (Iowa 1989) (stating “highly technical questions of

diagnoses and causation which lie beyond the understanding of a

layperson require introduction of expert testimony”); Wilkins v. Lamoille

County Mental Health Servs., Inc., 889 A.2d 245, 252–53 (Vt. 2005)

(Expert testimony is required to generate a jury question in a medical

malpractice action for suicide because the claims “all involve complex

psychiatric/medical issues relating to the causes, warning signs, and

prevention of suicide. These are plainly not issues within a lay juror’s

common knowledge and experience.”).

      We decline to overrule Koslow, which is controlling here.              The

estate’s “result of treatment” instruction contains the same flaw

identified in Koslow—the instruction permitted the jury, rather than the

expert, to consider the outcome as evidence of medical negligence. The

instructions given by the district court correctly set forth the elements of

proof for the estate’s medical malpractice claims. Accordingly, we hold

the district court did not abuse its discretion in declining to give the

“result of treatment” language requested by the estate.

      C. The Estate’s Requested Instruction on Damages Theories.

Because we affirm the district court’s judgment in favor of Mercy on

liability, we do not reach the remaining issues as to whether the district

court correctly refused to give the estate’s requested jury instructions on

the “eggshell plaintiff” theory or the “lost chance of survival” doctrine.
      VI. Summary and Disposition.
      We conclude the district court correctly submitted the issue of
Von Linden’s comparative fault and did not abuse its discretion in
declining to give the estate’s “result of treatment” instruction. We affirm
                                   34

the judgment in favor of Mercy based on the jury verdict finding her
ninety percent at fault.
      AFFIRMED.
      All justices concur except Wiggins and Appel, JJ., who dissent
separately, and Hecht, J., who joins both dissents.
                                     35

                            #08–1478, Mulhern v. Catholic Health Initiatives

WIGGINS, Justice (dissenting).

        I dissent.   The majority attempts to reach what it deems a fair

result in deciding the case by misconstruing chapter 668 of the Iowa

Code.    The majority then uses a fallback position that was not tried

below or raised on appeal to affirm the judgment.           At its best, the

majority decision is wrong; at its worst, it usurps the power of the

legislature by redefining the legislative policy of chapter 668.

        It is well-settled law that our court will not review a case on a

theory different from that on which the parties tried the case in the

district court. Dormoy v. Knower, 55 Iowa 722, 724, 8 N.W. 670, 671

(1881). The parties tried this case as a comparative fault case governed

by Iowa Code chapter 668. Furthermore, the defendants only requested

an instruction asking the jury to find the estate at fault because

“Elizabeth Von Linden was at fault for taking her own life.” Moreover,

these are the only theories the parties argue on appeal. Thus, these are

the only issues we can decide in this appeal.

        Iowa adopted its comparative fault act, chapter 668, in 1984.

1984 Iowa Acts ch. 1293. The explanation to the bill states, “This bill

would enact the Uniform Comparative Fault Act as promulgated by the

conference of commissioners on uniform state laws.”                H.F. 2487,

Explanation, 70th G.A., Reg. Sess. (Iowa 1984). Explanations attached

to bills are evidence of legislative intent. City of Cedar Rapids v. James

Props., Inc., 701 N.W.2d 673, 677 (Iowa 2005). This explanation makes it

clear the legislature intended to follow the Uniform Comparative Fault

Act.

        The Uniform Comparative Fault Act contains the same definitions

of fault as appears in Iowa Code section 668.1.       Uniform Comparative
                                     36

Fault Act § 1(b), 12 U.L.A. 125 (2008). The Uniform Comparative Fault

Act states, “The Act does not include intentional torts.” Id. § 1, cmt. at

126.    While some states have included intentional acts within the

definition of fault, Iowa chose not to do so. Compare Ind. Code § 34-6-2-

45 (2008), with Iowa Code § 668.1 (2003). Therefore, the first question

we need to answer is whether chapter 668 covers defendants’

specification of negligence.

       The court submitted one specification of comparative fault stating,

“Elizabeth Von Linden was at fault in the taking of her own life.” The

estate argues under the facts of this case, suicide is not comparable to

Mercy’s negligence under Iowa Code section 668.1. Chapter 668 of the

Code controls Iowa’s comparative fault scheme. For purposes of chapter

668, the legislature defined fault as:

       one or more acts or omissions that are in any measure
       negligent or reckless toward the person or property of the
       actor or others, or that subject a person to strict tort
       liability.   The term also includes breach of warranty,
       unreasonable assumption of risk not constituting an
       enforceable express consent, misuse of a product for which
       the defendant otherwise would be liable, and unreasonable
       failure to avoid an injury or to mitigate damages.

Iowa Code § 668.1(1).

       The language we need to focus on is “one or more acts or

omissions that are in any measure negligent or reckless toward the

person or property of the actor or others.” Id. The common meaning of

suicide is “the act or an instance of taking one’s own life voluntarily and

intentionally.” Webster’s Third New International Dictionary 2286 (unabr.

ed. 2002); see also Iowa Code § 707A.1 (defining suicide for the purpose

of the assisted suicide statute as “the act or instance of taking a person’s

own life voluntarily and intentionally”).    By definition, suicide is an

intentional act. The act of committing suicide is neither negligent nor
                                     37

reckless. Accordingly, suicide is not an act included in the definition of

fault in chapter 668.

      We have previously held, when an act of a party is not included in

the definition of fault contained in the comparative fault statute, the

comparative fault statute does not apply to the excluded conduct. See,

e.g., Carson v. Webb, 486 N.W.2d 278, 280 (Iowa 1992); Tratchel v. Essex

Group, Inc., 452 N.W.2d 171, 180–81 (Iowa 1990), abrogated on other

grounds by Comes v. Microsoft Corp., 775 N.W.2d 302, 310 (Iowa 2009);

Slager v. HWA Corp., 435 N.W.2d 349, 352–53 (Iowa 1989). In Carson,

we held an intentional act, such as assault and battery, is not included

in the definition of fault; therefore, the collateral source rule contained in

section 668.14 was not applicable to the plaintiff’s claim. 486 N.W.2d at

280. In Trachtel, we decided fraud is not included in the definition of

fault contained in section 668.1(1). 452 N.W.2d at 180–81. Accordingly,

we did not allow the jury to compare the negligence of one party with the

fraud of another. Id. In Slager, we refused to allow the finder of fact to

compare a corporation’s dramshop liability with a patron’s negligence

because dramshop liability is not fault as defined by the legislature in

section 668.1(1). 435 N.W.2d at 352–54.

      To be consistent with our prior case law, we should not apply the

provisions of chapter 668 to acts not included in the definition of fault

found in section 668.1(1). Because suicide is not an act included in the

definition of fault, the defendants were not entitled to compare the

intentional act of Von Linden committing suicide to its negligence. Thus,

I would find the court erred in instructing the jury that it must assign a

percentage of fault against Von Linden if it concluded Von Linden was at

fault for taking her own life.
                                     38

      The majority also relies on the rule of statutory construction

directing the court to avoid construing a statute in a manner leading to

an absurd result. The majority’s reliance on this rule of construction is

flawed in a number of ways. First, before we can rely on the rule, we

must find the statute is ambiguous.       Andover Volunteer Fire Dep’t v.

Grinnell Mut. Reins. Co., 787 N.W.2d 75, 81 (Iowa 2010). If the statute is

not ambiguous, we must apply it as written.           Iowa Comprehensive

Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606

N.W.2d 376, 379 (Iowa 2000). The majority finds no ambiguity in the

statute, which on its face clearly does not apply to intentional acts.

      The second flaw in the majority’s argument is the use of its

example stating, “a plaintiff who carelessly, but accidentally, sets her

home ablaze would have her recovery against negligent firefighters barred

or reduced by her own comparative fault; yet a homeowner who

intentionally sets her dwelling ablaze could recover in full.” Comparing

the act of a person committing suicide to the act of a person intentionally

setting a fire is illogical. The person who set the fire is not under the

care of the fire department to prevent that person from setting the fire.

In this case, the jury found that Von Linden was under the care of the

physician to treat a mental illness that made her more susceptible to

commit suicide, and the physician was negligent in treating her.

      A plain reading of the statute does not allow the majority to

conclude the jury can compare an intentional act to a negligent act when

it determines fault.    For this reason, I disagree with the majority’s

analysis.

      As a fallback position, the majority retries the case and finds that

the jury could find Von Linden negligent for her failure to call the suicide

hotline or the doctor’s office before she committed suicide. The problem
                                     39

with this position is that the parties did not try the case under this

theory or raise this argument on appeal. I agree our statute allows the

submission of comparative fault when there is evidence a suicide victim’s

negligence or “fault” contributed to the person taking his or her own life.

See, e.g., Sheron v. Lutheran Med. Ctr., 18 P.3d 796, 801 (Colo. App.

2000) (allowing suicide victim to be found comparatively negligent when

there was evidence he was not completely truthful or forthcoming in his

statements to medical care providers and when he failed to keep a follow-

up mental health appointment). The flaw in the majority’s argument is

that the parties never tried the issue involving Von Linden’s negligence in

failing to call the suicide hotline or the doctor before committing suicide.

In fact, the parties did not argue on appeal whether such conduct on the

part of Von Linden constituted fault.

      I agree there was evidence in the record regarding the existence of

a suicide hotline and evidence that Von Linden’s doctor instructed her to

call the doctor’s office if she had any problems. However, there was no

evidence at trial that she failed to call the suicide hotline or the doctor’s

office after her discharge from the hospital. Additionally, the defendant

did not introduce any evidence that the failure to call the suicide hotline

or the doctor’s office before she committed suicide was within the scope

of the defendant’s liability. The failure of the defendant to introduce this

evidence and ask for a specific instruction to find Von Linden was

negligent for failing to call the suicide hotline or the doctor’s office makes

it clear to me that this issue was not tried in the district court. In effect,

the majority has stated that the mere fact that the evidence contained a

reference to the suicide hotline or that she was told to call the doctor’s

office if she had any problems was enough for the jury to find that she

was at fault. I disagree.
                                      40

      For the defendants to succeed on appeal with this argument, they

would first have had to ask for a jury instruction claiming this

specification of fault.   The only specification of fault requested by the

defendant was “Elizabeth Von Linden was at fault in the taking of her

own life.” This court should not decide this case on a theory that was

not tried in the district court. Dormoy, 55 Iowa at 724, 8 N.W. at 671.

The defendants offered no evidence tending to show that Von Linden’s

actions in not making a call for help had anything to do with her suicide.

In the recent opinion of Doe v. Central Iowa Health System, 766 N.W.2d

787 (Iowa 2009), we held expert testimony must be produced to engender

a fact question on the issue of whether conduct caused emotional harm.

Doe, 766 N.W.2d at 794.

      By using Von Linden’s conduct on a theory of fault not presented

to the jury to reach a fair result, the majority would allow the jury to

speculate whether a failure to call, if such a failure in fact occurred, was

a proximate cause of Von Linden’s suicide. Had Von Linden’s attorney

known this might become a viable issue in this case, he could have

objected to its submission to the jury for lack of evidentiary support. By

using a theory that was not submitted to the jury as a justification of the

outcome, the majority allows trial by ambush.

      The bottom line is that, if a physician is negligent in the treatment

of a patient, the physician is responsible for the damages within the

scope of the physician’s liability.    It is clear to me that the majority

believes it would be absurd and unfair to allow the estate of one who

commits suicide to recover damages from medical providers.           But a

judge’s personal opinion as to whether a person who commits suicide

should or should not recover damages does not give the judge license to

rewrite the comparative fault statute to achieve a desired result.
                                         41

        Our job as judges is not to write a decision to avoid an unfair

result.    Our job is to apply the law passed by the legislature.          The

legislature makes the policy of this state and decides what is fair or not

fair.   In the absence of ambiguity, our duty is to apply a statute as

written so long as it is constitutional.      The legislature made a policy

decision not to include intentional acts in the definition of fault. I cannot

join in the majority’s recasting of the statute to achieve what it deems a

fair result because to do so would usurp the power of the legislature.

        Accordingly, I would reverse the judgment of the district court.

        Hecht, J., joins this dissent.
                                        42

                              #08–1478, Mulhern v. Catholic Health Initiatives

APPEL, Justice (dissenting).

        I respectfully dissent.

        The majority opinion primarily rests on two legal conclusions.

First, the majority opinion holds that, under Iowa Code chapter 668, a

plaintiff’s    intentional   misconduct      in   committing   suicide    may     be

compared against the negligence of a defendant in a case in which the

defendant has a duty to act reasonably to prevent the plaintiff from self-

harm.      Second, the majority concludes in the alternative that the

defendant, in any event, raised the issue of negligence and presented

sufficient evidence of negligence to support the verdict under Iowa Code

chapter 668.

        In my view, both holdings are incorrect.

     I. Applicability of Comparative Fault Act to Intentional
Misconduct.
        Iowa    Code   chapter    668   provides     legislative   codification   of

comparative fault principles. The chapter followed this court’s decision

in Goetzman v. Wichern, 327 N.W.2d 742, 754 (Iowa 1982), superseded

by statute, Iowa Code ch. 668, in which the court, as a matter of

common law, abandoned contributory negligence in favor of comparative

fault principles.

        A significant issue in any statutory scheme of comparative fault is

whether the intentional acts of parties may be compared against

negligent acts of parties.        At least six states have concluded that

intentional misconduct should be so compared. Specifically, Alaska law

provides that fault includes “acts or omissions that are in any measure

negligent, reckless, or intentional”; Idaho law broadly provides for

allocation of “negligence or comparative responsibility”; Indiana law states
                                      43

that fault “means an act or omission that is negligent, willful, wanton,

reckless, or intentional”; Michigan law reads that fault includes “an act,

an omission, conduct, including intentional conduct”; New York law

provides for comparison of “culpable conduct”; and North Dakota law

allows allocation for “willful conduct.” See Alaska Stat. Ann. § 09.17.900

(2010) (emphasis added); Idaho Code Ann. § 6-803(3) (2010) (emphasis

added); Ind. Code Ann. § 34-6-2-45 (2008) (emphasis added); Mich.

Comp. Laws Ann. § 600.6304 (2000); N.Y. C.P.L.R. § 1411 (McKinney

1997); N.D. Cent. Code Ann. § 32-03.2-02 (2010).

      Unlike these states, the Iowa legislature made a different choice on

the question of intentional acts and omissions. Specifically, Iowa Code

section 668.1 defines fault as “one or more acts or omissions that are in

any measure negligent or reckless toward the person or property of the

actor or others, or that subject a person to strict tort liability. . . .” Iowa

Code § 668.1(1). Remarkably, the definition of fault in Iowa law does not

include intentional misconduct or any broad phrase that might

reasonably be construed to include it. See id.

      The majority opinion thus lacks textual support.            In defining

“fault,” the legislature provided a laundry list of items to be included or

considered in the comparative process. See id. The legislature included

“negligence,” “recklessness,” and acts or omissions giving rise to “strict

liability,” among other things.      Id.   The legislature did not include

“intentional misconduct.” Id.

      Ordinarily, when the legislature supplies a list, we do not expand

upon the list through creative interpretation.        Marcus v. Young, 538

N.W.2d 285, 289 (Iowa 1995); State v. Flack, 251 Iowa 529, 533, 101

N.W.2d 535, 538 (1960). We ordinarily construe a statute based upon

the language chosen by the legislature, not based on what it should have
                                    44

said or might have said. Auen v. Alcoholic Beverages Div., 679 N.W.2d

586, 590 (Iowa 2004); Painters & Allied Trades Local Union v. City of

Des Moines, 451 N.W.2d 825, 826 (Iowa 1990).

      Further, the statute does not use open-textured terms that require

judicial development.   Negligence, recklessness, strict liability, and all

the rest of the words and phrases in the legislature’s definition of “fault”

are well defined and do not include within their scope intentional acts.

See Farmer’s State Bank of Darwin v. Swisher, 631 N.W.2d 796, 801

(Minn. 2001) (holding language similar to Iowa statute does not include

intentional acts or omissions); Welch v. Southland Corp., 952 P.2d 162,

164–65 (Wash. 1998) (stating the phrase “acts or omissions . . . that are

in any measure negligent or reckless” is not ambiguous under

comparative fault statute).

      The majority opinion lacks historical support. It cites nothing in

the legislative history of the Iowa Comparative Fault Act to support its

position.   My independent research has not uncovered any historical

materials supporting the majority opinion.

      The majority does not offer a convincing structural argument to

support its interpretation. Specifically, the Iowa Comparative Fault Act

can easily be interpreted, consistent with the statutory language, as not

allowing the comparison of intentional misconduct with negligent

misconduct. Indeed, it is perfectly sensible to limit the scope of the Iowa

Comparative Fault Act to cases involving “fault” as defined by Iowa Code

section 668.1 and allow the common law to deal with the cases involving

parties who do not have “fault” as defined in that section. Indeed, many

courts seem to have come to this conclusion, at least with respect to

intentional misconduct of potential defendants. See, e.g., Hennis v. City

Tropics Bistro, Inc., 1 So. 3d 1152, 1154–57 (Fla. Dist. Ct. App. 2009);
                                          45

Brandon ex rel. Estate of Brandon v. Cnty. of Richardson, 624 N.W.2d

604, 619–20 (Neb. 2001); Welch, 952 P.2d at 165.

       The majority does not have doctrinal support in our case law.

Indeed, the case law runs in the opposite direction. We have held, for

instance, that intentional misconduct of third parties cannot be

compared against negligent defendants.              See, e.g., Freeman v. Ernst &

Young, 516 N.W.2d 835, 837 (Iowa 1994); see also Tratchel v. Essex

Group, Inc., 452 N.W.2d 171, 180–81 (Iowa 1990), abrogated on other

grounds by Comes v. Microsoft Corp., 775 N.W.2d 302, 310 (Iowa 2009).

It would be odd to suggest that intentional misconduct of defendants

cannot be compared, while the intentional misconduct of the plaintiff

may. 3 Indeed, the fact that intentional misconduct of third parties could

not be compared by a negligent party under Tennessee law was a

significant factor that led to the decision in White v. Lawrence, 975

S.W.2d 525 (Tenn. 1998).

       The majority seizes upon the fact that, in this case, the plaintiff

was receiving outpatient rather than inpatient care. It is suggested that,

       3Under   the majority approach, a psychiatrist may be liable to a nurse who is
assaulted by his patient without being able to compare the intentional acts of the
patient. It lacks symmetry to suggest that when the actor is a plaintiff, the intentional
acts may be compared against other parties, but not when the intentional tortfeasor is a
defendant. There either is a duty to protect against intentional misconduct or there is
not.
        This logic is recognized in the case law. For instance, in Tennessee, the
supreme court in Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn. 1997), held that the
intentional acts of a psychiatrist’s patient could not be compared to the negligence of a
psychiatrist in a medical malpractice action arising from an assault by the patient on
the plaintiff. This case was a driving force in White v. Lawrence, 975 S.W.2d 525, 531
(Tenn. 1998), which held that the decedent’s intentional act of a suicide could not be
compared against the negligence of the decedent’s treating physician in a medical
malpractice action.
       Similarly, in Iowa, we concluded in Freeman that the intentional act of a third
party could not be compared against the negligence of the defendant. See Freeman, 516
N.W.2d at 837. As in Tennessee, the Freeman case provides a strong impetus in this
case.
                                           46

with the exception of White, the cases involving tort liability in suicide

cases against physicians and hospitals arise out of custodial settings.

See, e.g., McNamara v. Honeyman, 546 N.E.2d 139, 146–47 (Mass. 1989);

Cowan v. Doering, 545 A.2d 159, 160 (N.J. Super. Ct. App. Div. 1988).

The distinction between custodial and noncustodial care, however, has

no relevance to the meaning of “fault” in the language contained in Iowa

Code section 668.1.          Instead, the distinction between custodial and

noncustodial care could be an important factor in determining whether a

defendant had a duty or breached a duty of care toward a patient. King

v. Smith, 539 So. 2d 262, 264 (Ala. 1989) (holding psychiatrist had no

duty of care in light of the outpatient character of the relationship

between the psychiatrist and his patient); Bellah v. Greenson, 146 Cal.

Rptr. 535, 538 (Ct. App. 1978) (observing that the duty imposed on those

responsible for the care of a patient in an institutional setting differs

from the duty imposed in a case involving an outpatient); Estate of Haar

v. Ulwelling, 154 P.3d 67, 72–73 (N.M. Ct. App. 2007) (finding no duty

between psychiatrist and patient based on lack of sufficient control of

patient); see generally Charles J. Williams, Fault and the Suicide Victim:

When Third Parties Assume a Suicide Victim’s Duty of Self-Care, 76 Neb.

L.   Rev.     301,    310–11      (1997)    (discussing      custodial/noncustodial

distinction as one of duty). These duty issues, however, are not raised in

this appeal. 4 Further, whether the patient was receiving outpatient or




       4The  majority also seems to imply that the suicide amounts to an intervening or
superseding cause that would defeat liability of health care providers. See Jain v. State,
617 N.W.2d 293, 300 (Iowa 2000). But the intervening-cause rationale makes no sense
in cases where there is a special relationship to prevent the very harm that was
incurred. See id.; see also Edwards v. Tardif, 692 A.2d 1266, 1269–70 (Conn. 1997).
Moreover, as with duty issues, the intervening/superseding cause issue has nothing to
do with the statutory interpretation question before the court.
                                    47

inpatient care has nothing whatsoever to do with whether Iowa Code

section 668.1 includes intentional misconduct within its scope.

      In short, the majority appears to be adding a complex sentence to

the definition of “fault” in Iowa Code section 668.1.     That additional

sentence is:   “By the way, the term ‘negligence’ includes intentional

misconduct of a plaintiff, which may be compared against the negligence

of a defendant, but the intentional misconduct of a third-party defendant

may not be compared against other culpable parties.”

      How is it that the majority adds this additional sentence without

substantial support in the statutory text, in the legislative history, in

structural imperatives, or in existing doctrine? The result is driven by

public policy. Judicial perception of public policy, while often crucial in

common law development, does not give this court license to redraft the

statute.

      Further, there are plausible public policy arguments contrary to

those asserted by the majority. It could be argued, for instance, that in

cases of suicide, a hospital or physician should not be allowed to

compare the plaintiff’s intentional act of suicide because that is the very

act that the health care professionals have a duty to prevent.         See

McNamara, 546 N.E.2d at 146 (“We join a number of courts in holding

there can be no comparative negligence where the defendant’s duty of

care includes preventing the self-abusive or self-destructive acts that

caused the plaintiff’s injuries.”); Cowan, 545 A.2d at 164–65 (“[T]he acts

which plaintiff’s mental illness allegedly caused him to commit were the

very acts which defendants had a duty to prevent, and these same acts,

cannot as a matter of law, constitute contributory negligence.”); see also

Kan. State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 819 P.2d

587, 606 (Kan. 1991) (“Negligent tortfeasors should not be allowed to
                                     48

reduce their fault by the intentional fault of another that they had a duty

to prevent.”); Veazey v. Elmwood Plantation Assocs., Ltd., 650 So. 2d 712,

719 (La. 1994) (same); Lisa A. Mecklenberg, Case Comment, Negligence—

Mental Health: Why Is It My Fault When I’m the One Who’s Dead? North

Dakota Comparative Fault in a Suicide Victim/Caregiver Context, 71 N.D.

L. Rev. 1105, 1122 (1995) (suggesting no fault should be assigned to a

person who commits suicide in an action against one who failed to help

her); Allen C. Schlinsog, Jr., Comment, The Suicidal Decedent: Culpable

Wrongdoer, or Wrongfully Deceased?, 24 J. Marshall L. Rev. 463, 477–89

(1991) (asserting that modern psychiatry repudiates the notion of

culpability in suicide cases and that the test of liability for caregivers is

whether breach of duty was a substantial factor in bringing about death);

Victor E. Schwartz, Civil Liability for Causing Suicide: A Synthesis of Law

and Psychiatry, 24 Vand. L. Rev. 217, 255 (1971) (declaring “person who

commits suicide is not a blameworthy person and should not be regarded

as such”). Similarly, a leading treatise declares that “[t]here can be no

comparative negligence on the part of a patient who commits suicide

where the psychiatric staff’s duties include preventing the self-

destructive act that causes the patient’s death.” Richard M. Patterson,

Harney’s Medical Malpractice, § 10.3, at 285 (4th ed. 1999).

      By citing these cases and authorities, I do not mean to suggest

that the best or only approach is to disallow comparison of the

intentional acts of a plaintiff who commits suicide.      These cases and

authorities merely demonstrate that applying the plain language of Iowa

Code section 668.1 to preclude the comparison of the plaintiff’s

intentional acts against the negligence of a health care provider who had

a duty to protect the plaintiff from self-harm has a plausible policy

footing and is not absurd or irrational.
                                     49

      The approach utilized by the majority is inconsistent with cases in

which we decline to allow judicial perceptions of public policy to override

the terms or structure of statutes.       For instance, in Jahn v. Hyundai

Motor Co., 773 N.W.2d 550, 560 (Iowa 2009), we held that comparative

fault principles would apply in crashworthiness cases under the

language of Iowa Code chapter 668, even though there were policy

reasons that could support another result.           Similarly, in Andover

Volunteer Fire Department v. Grinnell Mutual Reinsurance Co., 787 N.W.2d

75, 87 (Iowa 2010), we concluded that, under the language of the statute,

a volunteer firefighter must be called to duty by a third party authorized

by the fire chief to be covered by workers’ compensation notwithstanding

policy arguments to the contrary.     We should not employ inconsistent

approaches to statutory interpretation.

      II. Negligence.

      As a backup to its theory that the phraseology that “fault includes

intentional misconduct by a plaintiff but not by a third-party defendant,”

the majority suggests in the alternative that, because there was adequate

evidence the plaintiff was negligent, negligent acts of the plaintiff may be

compared.

      The problem with this theory is that, upon my review of the record,

it is apparent that the issue of negligence was not joined in this trial.

Indeed, remarkably, the only specification of negligence in this trial made

against the plaintiff was “the act of suicide.” That is it. In this case, it

seems clear that the act of suicide was an intentional act. Sampson v.

Ladies of Maccabees of the World, 131 N.W. 1022, 1024 (Neb. 1911)

(noting that suicide is an intentional act); Falkenstein v. City of Bismarck,

268 N.W.2d 787, 790 (N.D. 1978) (same), abrogated on other grounds by

Minto Grain, LLC v. Tibert, 776 N.W.2d 549, 555 (N.D. 2009).
                                        50

        Further, on appeal, the defendant in its appellate brief notes that

the     plaintiff   “complied   with   all   instructions.”    This   admission

demonstrates that the defendants did not put in issue the behavior of the

decedent prior to the “act of suicide” itself.

        The majority trumps these limitations and admissions of the

defense—powerful aspects of the record—by suggesting that there was

evidence that leaked into the record when a mass of medical records was

introduced that might support a negligence theory. That may be barely

true, but should be inconsequential in light of the fact that the issue was

not joined by the parties. If the plaintiff had been aware that there were

specifications of negligence other than “the act of suicide,” a different

record may have been developed by the defendant.              We cannot decide

this case on an issue that was not raised below and about which a much

different record may have been developed had the issue been joined. The

days of trial by ambush passed long ago, and I would not resurrect them

here.

        The majority’s reaching out on this issue, like its interpretation of

the statute, is driven by policy considerations. But it is also inconsistent

with recent case law. In Feld v. Borkowski, 790 N.W.2d 72, 78 & n.4

(Iowa 2010), the majority of this court adopted a conservative approach

to issue preservation in order to prevent consideration of an issue that

may have led to abandonment of an antiquated special tort rule that

restricted liability. Specifically, in Feld, the majority stated:
        [I]n the absence of the most cogent circumstances, we do not
        create issues or unnecessarily overturn existing law
        sua sponte when the parties have not advocated for such a
        change. . . . [W]e are restrained to apply the controlling law
        as advocated by the parties . . . .

Feld, 790 N.W.2d at 78 n.4.
                                    51

      Here, the majority takes a different approach. The parties litigated

the case as involving the question of whether “the act of suicide” may

give rise to some kind of fault to be compared to the negligence of

medical professionals. On appeal, the majority broadens the issue, even

though such broadening has not been advocated by the parties.          The

situation, however, is aggravated because had the parties at trial known

that broader issues of negligence were at issue, a different factual record

might have been developed.

      III. Problem of Intentional Misconduct at Common Law.

      It is possible, perhaps, that the claim brought by the plaintiffs in

this case, because of the intentional acts, could be considered outside

the parameters of Iowa Code chapter 668 and, instead, within the

purview of common law. The problem with a common law approach to

this case, however, is that the parties did not try this as a common law

case. The fighting issue at the district court was over the meaning of

fault under Iowa Code section 668.1. No one suggested that chapter 668

did not apply to this case.

      There may have been some good reasons why the parties accepted

the framework of Iowa Code chapter 668.       They may have, of course,

simply concluded that it applied.    Or, there may have been strategic

considerations.   Iowa Code chapter 668 was not all bad news for the

defendants.   Iowa Code chapter 668 is a modified comparative fault

statute. Under the legislature’s scheme of comparative fault, a plaintiff

found more than fifty percent at fault is barred from recovery, whereas at

common law there is no such bar. See Goetzman, 327 N.W.2d at 753

(adopting pure comparative negligence). The defendants thus could have

made a strategic choice to try the matter under Iowa Code chapter 668

and gain the benefit of modified comparative fault rather than take their
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chances at common law.         Conversely, the plaintiff may have been

satisfied with giving up pure comparative fault in light of the fact that

intentional acts are not within the definition of “fault” in Iowa Code

section 668.1.

      Given the posture of the case, I see no alternative other than to

answer the question posed by the parties.      I would simply hold that

under Iowa Code chapter 668, the intentional misconduct of the plaintiff

is not compared against the fault of the defendant. There may well be a

different answer at common law, but that question is not presented in

this appeal and cannot be decided now without reworking the tapestry of

the trial in this case.

      IV. Conclusion.

      I would hold that under Iowa Code chapter 668, the intentional

misconduct of the plaintiff cannot be compared against the fault of the

defendant. I would therefore reverse the judgment of the district court.

      Hecht, J., joins this dissent.
