                IN THE SUPREME COURT OF IOWA
                              No. 06–0655

                        Filed November 21, 2008


SHIRLEY A. SMITH, as Executor of the Estate of DONALD E. SMITH
and SHIRLEY A. SMITH, Individually,

      Appellant,

vs.

ALAN R. KOSLOW and IOWA HEART CENTER, P.C.,

      Appellees.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, John D.

Lloyd, Judge.



      Appeal by plaintiff from judgment for defendants in a medical

malpractice case.    DECISION OF COURT OF APPEALS VACATED.

DISTRICT COURT JUDGMENT AFFIRMED.



      Timothy Semelroth of Riccolo & Semelroth, P.C., Cedar Rapids, for

appellant.



      Robert D. Houghton, Nancy J. Penner, and Jennifer E. Rinden of

Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees.
                                              2

CADY, Justice.

       In this appeal, we must decide if a district court committed error

by instructing a jury in a medical malpractice action that the mere fact of

an injury does not mean the doctor was negligent.                       We conclude the

district court did not commit error. We vacate the decision of the court

of appeals and affirm the judgment of the district court.

       I. Background Facts and Proceedings.
       Donald       Smith     tragically     died   during     surgery     to    repair   an

abdominal aortic aneurism and an iliac artery aneurism.1                            He was

seventy-two years of age and was a successful businessman. He lived in

Blakesburg and was survived by his wife and six children.

       The surgery was performed by Dr. Alan R. Koslow, M.D., who was

employed by the Iowa Heart Center, P.C., in Des Moines.2                         Dr. Koslow

planned to utilize the stent graft procedure to repair the aneurisms. He

began the operation on the iliac artery aneurism.                         The procedure

required him to first perform angioplasty on the artery.                        He chose to

perform the angioplasty by using the Dotter technique. This technique

involved the insertion of sequential retinal dilators to widen the artery

prior to inserting the stent at the location of the aneurism. The stent
would then allow blood to flow through the area without putting pressure

on the artery wall.

       After Dr. Koslow inserted the dilators, he was unable to pass the

stent graft through the artery. Within a short period of time, Dr. Koslow


        1The aneurism was discovered after Smith began to experience pain in his lower

abdomen. He sought medical attention after the pain intensified and began to keep him
awake at night. Doctors performed a CT scan on Smith, which revealed the aortic
aneurism. An aortic aneurism is a weakening of the wall of the artery. Left unrepaired,
it can spontaneously rupture and cause certain death.
       2In   this opinion, the defendants will be collectively referred to as Koslow.
                                       3

discovered Smith was suffering from internal bleeding. He tried in vain

through a variety of means to locate and stop the bleeding. His efforts

were unsuccessful, and Smith died on the operating room table after

suffering a series of heart attacks.

      Shirley Smith, his wife and the executor of his estate, brought an

action against Dr. Koslow and the Iowa Heart Center for negligence. She

primarily claimed Dr. Koslow breached the accepted standard of medical
care by using dilators to widen the artery, instead of using balloon

angioplasty.     She claimed the dilators caused the artery to rupture.

Dr. Koslow claimed one of the known risks of the stent graft procedure is

that aneurisms can spontaneously rupture during surgery.

      In the course of instructing the jury at trial on the claim of

negligence, the district court, in addition to the instruction setting out

the   elements    of   recovery,   included   the   following   supplemental

instruction:

      The mere fact that a party was injured does not mean that a
      party was negligent.

Smith objected to the instruction, claiming it unduly emphasized

Dr. Koslow’s defense.       She also claimed the instruction was an

incomplete statement of the law in the absence of the following language

she requested to be added to the instruction:

      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.

      The district court overruled the objection, and the jury returned a

verdict in favor of Dr. Koslow and the Iowa Heart Center. The jury found

Smith failed to prove Dr. Koslow was negligent.
                                    4

      On appeal, Smith seeks a new trial based on error in giving the

instruction to the jury that the existence of an injury does not mean the

doctor was negligent. The court of appeals concluded that the district

court did not err in instructing the jury. We granted further review.

      II. Standard of Review.

      “We review a claim that the court gave an instruction that was not

supported by the evidence for correction of errors of law.” Summy v. City
of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006) (citing State v. Piper,

663 N.W.2d 894, 914 (Iowa 2003)). We review the converse claim that

the trial court should have given a requested instruction for abuse of

discretion.    Id. (citing Anderson v. State, 692 N.W.2d 360, 363 (Iowa

2005)).

      III. “Bad Result/Injury is Not Negligence” Instruction.

      It is a fundamental tenet of tort law that the fact a plaintiff has

suffered an injury, without more, does not mean the defendant was

negligent. Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d

495, 497 (Iowa 2001); Brewster v. United States, 542 N.W.2d 524, 528

(Iowa 1996).    Instead, to recover for an injury, our law requires an

injured person to establish the existence of a duty of care, breach of the
duty of care, and that the breach was the cause of the injuries suffered.

Novak Heating, 622 N.W.2d at 497.

      While we have applied these universal propositions in the past to

decide the propriety of a directed verdict in a negligence case, we have

not previously addressed the propriety of submitting the specific

disputed proposition to a jury in the form of an instruction. However,

the uniform jury instructions authored by the special committee on

uniform court instructions of the Iowa State Bar Association includes an

instruction for general negligence cases that incorporates this general
                                           5

proposition. It provides that the “mere fact of an accident or injury does

not mean a party was negligent.”            See Iowa Uniform Jury Instruction

700.8. This model instruction is nearly identical to the instruction given

by the district court in this case.

       Smith claims the instruction served as a comment on the evidence

by emphasizing Koslow’s claim that the blood loss and death during the

surgery was not the result of any negligence.               At the same time, she
asserts the instruction minimized the importance of such evidence in her

efforts to establish her claim that Koslow was negligent.

       While we have not specifically addressed the propriety of

instructing a jury in a negligence case on the proposition of law at

dispute in this case, we have on several occasions applied the rule to

claims involving medical malpractice actions in deciding whether the

underlying claim was submissible to a jury. Specifically, in Johnson v.

Van Werden, 255 Iowa 1285, 1290, 125 N.W.2d 782, 784 (Iowa 1964), we

said, quoting from O’Grady v. Cadwallader, 183 Iowa 178, 192, 166 N.W.

755, 759 (1918):

       “[I]t is the general holding of the courts that the bare fact
       that full recovery does not result, or that a surgical operation
       is not entirely successful, is not, in and of itself, evidence of
       negligence . . . .”

       Other jurisdictions, however, have considered various forms of the

proposition as a jury instruction in various types of medical malpractice

actions, with differing results.3           Some jurisdictions have approved



       3At  the outset, we recognize a distinction is made between medical malpractice
cases involving the doctrine of res ipsa loquitur and standard medical malpractice cases.
Some jurisdictions hold that such an instruction should not be given with a res ipsa
loquitur instruction, while other jurisdictions conclude the two instructions may be
given together. See Carver v. El-Sabawi, 107 P.3d 1283, 1285–86 (Nev. 2005) (citing
cases taking each position). This is not a question we face, of course, because this case
does not involve the res ipsa loquitur doctrine.
                                    6

various versions of the “bad result/injury is not negligence” instruction,

while others have disapproved of the instruction or discouraged the use

of the instruction. Yet, most all courts agree the “bad result/injury is

not negligence” instruction reflects “well nigh universally recognized

principles of medical malpractice law.”    Jones v. Porretta, 405 N.W.2d

863, 869 (Mich. 1987); accord Watson v. Hockett, 727 P.2d 669, 673

(Wash. 1986); see W. Page Keeton et al., Prosser and Keeton on Torts
§ 32, at 186 n.33 (5th ed. 1984); see also Armsbruster v. Gray, 225 Iowa

1226, 1230, 282 N.W. 342, 344 (1938) (“ ‘It is universally agreed that no

inference of negligence arises from the mere fact that a collision

occurred.’ ” (quoting Harvey v. Borg, 218 Iowa 1228, 1232, 257 N.W.

190, 193 (1934))).

      Moreover, courts that disapprove of the instruction do so mainly

due to the particular variation of the general proposition, not because of

a disagreement with the general proposition itself.     For example, the

court in Kennelly v. Burgess, 654 A.2d 1335, 1340–41 (Md. 1995), found

a “bad result” instruction was improper in a medical malpractice case

because it told the jury that an unsuccessful result following medical

treatment was “not evidence of negligence.”      (Emphasis added.)    The
court found the instruction went beyond the general proposition that an

unsuccessful result was not itself negligence and improperly “implied

that the jury should give no consideration at all to the unsuccessful

medical treatment of [the plaintiff].” Kennelly, 654 A.2d at 1341.

      On the other hand, even those jurisdictions that approve the “bad

result/injury is not negligence” instruction find it tends to state an

obvious proposition and is best reserved for those medical malpractice

cases in which the jury might improperly use a bad medical result to find

negligence. See Porretta, 405 N.W.2d at 870 (“We agree with the plaintiff
                                            7

that there are times when the giving of such an instruction may mislead

the jury by focusing the jury’s attention on an irrelevant issue

unsupported by the defendant’s theory of the case or the evidence

submitted.”). On the other hand, in Watson, the court said:

      Such an instruction is particularly appropriate where the
      jury has heard evidence or argument from which it might
      reach an improper conclusion that doctors guarantee good
      results or can be found negligent merely because of a bad
      result.

727 P.2d at 673.

      We agree with the majority of courts that the submission of the

“bad result/injury is not negligence” instruction to a jury in a standard

medical malpractice action would not normally constitute prejudicial

error. It reflects a correct statement of the law. We recognize, however,

the instruction could constitute reversible error in a particular case if it

would unduly emphasize a particular theory or otherwise distract the

jury in performing its responsibilities to decide the issues in the case.

      In this case, we conclude the district court did not err by giving the

supplemental instruction.              Although the instruction was essentially

embodied in the instruction on the elements for recovery of negligence, it

was appropriate in this case to separately advise the jury that the injury,

alone, did not mean Koslow was negligent.                The closing argument

presented by counsel for Smith supported the instruction in this case.

In his argument, counsel for Smith repeatedly told the jury the bad

result of the surgery was either caused by a spontaneous rupture of the

artery or the care administered by the doctor.4 Consequently, the choice


      4Plaintiff’s   counsel argued:
      The cause of this injury occurred in one of two ways. It was either a
      spontaneous rupture of this vessel, or it was caused by the doctor.
      Those are your two choices in this case.
                                            8

invited the jury to infer liability from the bad result in the event it

concluded the artery did not spontaneously rupture.              The instruction

properly informed the jury that its verdict could not be decided in such a

manner. Courts generally give jury findings considerable weight, and a

supplemental instruction that properly assists the jury in the correct

application of the law to the facts is not error.

       Finally, Smith claims the instruction was erroneous because it was
an incomplete statement of the law.              If a jury is given the “bad

result/injury is not negligence” instruction, she asserts the jury must

also be told that it may still consider the bad result in assessing whether

negligence occurred. Smith primarily relies on Daiker v. Martin, 250 Iowa

75, 91 N.W.2d 747 (1958), in which we said:

       “[W]hile the result alone is not, in itself, evidence of
       negligence, yet 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.”

Daiker, 250 Iowa at 81, 91 N.W.2d at 750 (quoting Kirchner v. Dorsey &

Dorsey, 226 Iowa 283, 294–95, 284 N.W. 171, 178 (1939)).

       It is important to recognize that Daiker involved the placement of a

cast by a doctor on the leg of the plaintiff that was too tight, resulting in

the amputation of the limb. 250 Iowa at 76, 91 N.W.2d at 747. The

question presented was whether the medical malpractice claim could

proceed to trial without expert testimony, and we held the question of

negligence by the doctor under such circumstances was one of common


On rebuttal, plaintiff’s counsel again argued:
       The choice ultimately is, was this a spontaneous rupture or was it
       caused by the doctor? Those are the two choices, when you ultimately
       get down to it. Did lightening happen to strike at the moment that
       Dr. Koslow was doing his procedure? In order to find for Dr. Koslow in
       this case, you’re going to have to find that.
                                     9

knowledge that did not require expert testimony.         Id. at 83–84, 91

N.W.2d at 752. Thus, our statement in the case, that the injury may

nevertheless be considered by the jury as evidence of negligence, applied

to a finding of negligence that did not require expert testimony.

      We agree with Smith that the “bad result/injury is not negligence”

instruction “does not mean that a bad result cannot be presented by

plaintiffs as part of their evidence of negligence, but, rather, that,
standing alone, it is not adequate to create an issue for the jury.”

Porretta, 405 N.W.2d at 874. Instead, “[s]omething more is required, be

it the common knowledge that the injury does not ordinarily occur

without negligence or expert testimony to that effect.”      Id.    However,

when expert testimony is required in a medical malpractice case, the

expert, not the jury, is permitted to use the unsuccessful result in

formulating the expert opinion that negligence occurred.      See Meda v.

Brown, 569 A.2d 202, 207 (Md. 1990) (holding an expert, as

distinguished from a lay witness, may properly rely on an unsuccessful

result in concluding a doctor is negligent).       In Kennelly, the court

properly summarized the applicable rule:

      If any form of a “mere happening” instruction is to be given
      in a medical malpractice case requiring expert testimony, the
      jury should be informed that, although an unsuccessful
      result does not create a presumption of negligence, it still
      may be considered as some evidence of negligence and that
      an expert witness may consider it in formulating his or her
      opinion that there was negligence.

654 A.2d at 1341.

      In this case, 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
                                      10

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. Herbst v. State, 616

N.W.2d 582, 585 (Iowa 2000). 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.
      IV. Conclusion.

      We conclude the trial court did not err or abuse its discretion in

instructing the jury. We vacate the court of appeals decision and affirm

the judgment of the district court.

      DECISION OF COURT OF APPEALS VACATED.                     DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Hecht and Wiggins, JJ., who dissent,

and Appel and Baker, JJ., who take no part.
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                                           #73/06–0655, Smith v. Koslow

HECHT, Justice (dissenting).

      I respectfully dissent.   “Stuff happens” is a cute phrase on a

bumper sticker, but it should not be included in jury instructions.       I

would hold the district court committed reversible error in giving the

“mere fact of injury” instruction.       My analysis begins with the

observation that the instruction was entirely unnecessary. The jury was
told through other instructions everything they needed to know about

the definition of negligence. There simply was no need to remind the jury

that the fact Mr. Smith died did not mean Dr. Koslow was negligent in

performing the procedure.

      That the instruction was unnecessary is not, however, its principal

defect.   The court’s instructions on the law should not give undue

prominence to any part of the case. Stover v. Lakeland Square Owners

Ass’n, 434 N.W.2d 866, 868 (Iowa 1989). In particular, the instructions

should not “overemphasize one party’s theory of the case.” Sunrise Dev.

Co. v. Iowa Dep’t of Transp., 511 N.W.2d 641, 644 (Iowa Ct. App. 1993).

The “mere fact of injury” instruction violated these cardinal principles by

gratuitously affirming a central premise of Dr. Koslow’s theory of defense:
Bad things occasionally happen during emergent medical treatments

despite a physician’s compliance with the relevant standard of care.

      The worst feature of the challenged instruction was its capacity to

communicate to the jury the notion the court doubted the treatment

provided by Dr. Koslow fell below the relevant standard of care. I believe

a reasonable juror could interpret the “mere fact of injury” instruction in

this untoward way because the definition of negligence as conduct falling

below the standard of care had already been given in other instructions.

Why, a reasonable juror could wonder, would the court feel the need to
                                    12

augment that definition?    Why, a reasonable juror could inquire, after

properly defining the concept of negligence, would the court give a

separate instruction emphasizing the essence of one of Dr. Koslow’s

principal arguments—that bad outcomes can occur in the absence of

negligence—unless the court has doubts about the merits of the

plaintiffs’ claim?    Although the “mere fact of injury” instruction

communicated an accurate statement of law, it was in my view
completely unnecessary and prejudicial.

      I believe the challenged instruction was also inappropriate because

it could be understood by a reasonable juror as a backhanded comment

on the evidence. See Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa

1993) (instructions by the court that comment “on potential factual

scenarios in which a standard of care may or may not have been adhered

to” are impermissible comments on the evidence). It commented on the

evidence by reminding the jurors they could find the plaintiffs produced

no evidence other than the fact of injury to support their claim. Such a

suggestion in the court’s jury instructions was in my view inappropriate

just as it would have been improper to remind jurors in the instructions

that frivolous negligence cases are not submitted to the jury.
      The majority suggests the instruction was appropriate given the

substance of Smith’s counsel’s closing argument.      Counsel’s argument

suggested the jury must decide whether Mr. Smith’s aneurysm burst

during the procedure either coincidentally or as a consequence of the

doctor’s treatment.    The majority interprets this argument as an

assertion the bad outcome of the procedure should be viewed by the jury

as conclusive evidence of negligence.     In my view, counsel’s argument

can be understood as a more nuanced attempt to persuade the jury that

the outcome was not coincidental, and was a consequence of the
                                     13

technique used by Dr. Koslow which precipitated a tear in the surface of

the aneurysm.      The question of whether the doctor’s choice and

execution of the technique fell below the standard of care was a separate

and distinct question for the jury to decide in conformity with

appropriate   instructions   defining     the   plaintiff’s   burden   to   prove

negligence and proximate cause. The argument made by Smith’s counsel

did not suggest otherwise, and it neither provoked nor justified the
district court’s deployment of the “mere fact of injury” instruction.

      I would reverse and remand this case for a new trial.

      Wiggins, J., joins this dissent.
