               IN THE SUPREME COURT OF IOWA
                              No. 14–1682

                           Filed June 15, 2018


ALAN ANDERSEN, Individually and as Injured Parent of CHELSEA
ANDERSEN and BRODY ANDERSEN, and DIANE ANDERSEN, Wife of
Alan Andersen,

      Appellants,

vs.

SOHIT KHANNA, IOWA HEART CENTER, P.C., and CATHOLIC
HEALTH INITIATIVES IOWA CORP. d/b/a MERCY HOSPITAL MEDICAL
CENTER,

      Appellees.


      On review from the Iowa Court of Appeals.



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

Huppert, Judge.



      Patient and his family seek further review of a court of appeals

decision affirming an adverse jury verdict.   DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, REVERSED IN PART, AND CASE REMANDED.



      Marc S. Harding of Harding Law Office, Des Moines, for appellants.



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

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

WIGGINS, Justice.

         A patient and his family brought a medical negligence action

against a physician and the physician’s employer. They alleged specific

negligence and the failure of the physician to obtain informed consent.

The district court granted summary judgment in favor of the defendants

on the claim of informed consent based on the physician’s failure to

disclose his lack of training and experience in performing the particular

procedure.      During trial, the court refused to allow the plaintiffs to

proceed with their informed-consent claim based on the physician’s

failure to disclose the risk of the surgery considering the patient’s bad

heart.

         The case proceeded to trial on the specific negligence claim.

However, the court would not submit a specification of negligence

regarding the physician’s lack of training or experience.        The jury

returned a verdict for the defendants, and the court entered judgment for

the defendants. The patient and his family appealed. We transferred the

case to the court of appeals, and it affirmed the judgment of the district

court.     The patient and his family sought further review, which we

granted.

         On further review, we affirm the district court’s judgment on the

specific negligence claim. However, we find the district court erred when

it removed the two informed-consent claims from the case. Accordingly,

we remand the case back to the district court to allow the patient and his

family to proceed on their two informed-consent claims consistent with

this opinion.

         I. Factual and Procedural Background.

         On January 2, 2004, Alan Andersen underwent a Bentall heart

procedure performed by Dr. Sohit Khanna, an employee of the Iowa
                                           3

Heart Center, P.C.         Khanna performed the procedure at the Mercy

Hospital Medical Center in Des Moines.              At the time, Khanna did not

have any experience or training in performing the particular Bentall

procedure used on Andersen. There were several complications with the

procedure that resulted in Andersen being in a coma, undergoing a

second heart surgery, and having a heart transplant.

      In September 2005, Andersen, his wife, and children1 filed a

petition against Khanna, Iowa Heart, and Mercy. In addition to alleging

negligence against Khanna, Iowa Heart, and Mercy, Andersen alleged

Khanna and Mercy failed to obtain informed consent from Andersen prior

to surgery.      The basis of the informed-consent allegation was that

Khanna, Iowa Heart, and Mercy failed to properly advise Andersen of the

risks and dangers of the procedure.

      Andersen filed an amended petition in August 2008.                In the

amended petition, he alleged Khanna and Iowa Heart did not obtain

informed consent because they failed to advise Andersen that Khanna

had limited experience in performing a Bentall procedure.

      In May 2010, Khanna and Iowa Heart filed a motion for partial

summary judgment on the informed-consent allegations in the amended

petition, claiming a physician does not have a duty to disclose physician-

specific characteristics or experience in obtaining a patient’s informed

consent.     Notably, the motion for partial summary judgment did not

explicitly challenge Andersen’s informed-consent claim to the extent it

was based on Khanna’s and Iowa Heart’s alleged failure to disclose the

risks and dangers of the procedure.




      1We   refer to Andersen, his wife, and children as “Andersen.”
                                     4

      On June 15, 2010, the district court agreed with Khanna and Iowa

Heart that under Iowa law a physician does not have a duty to disclose

physician-specific characteristics or experience in obtaining informed

consent. Therefore, the court granted Khanna and Iowa Heart’s motion

for partial summary judgment. The relevant part of the ruling stated,

             The first motion the Court considers is Dr. Sohit
      Khanna and the Iowa Heart Center’s Motion for Partial
      Summary Judgment in regard to the issue of informed
      consent. The Court having read and reviewed the motion,
      the memorandum of authorities in support of the motion for
      partial summary judgment, the resistance filed by the
      Plaintiffs, the affidavits and the entire court file and
      otherwise being duly advised in the premises finds that the
      Motion for Partial Summary Judgment should be, and is,
      hereby sustained. The Court agrees with the Defendant
      Khanna and the Iowa Heart Center that the informed
      consent for patients as defined under Iowa law requires a
      disclosure to the patient of all known material information
      concerning the procedure to be performed which includes
      disclosing the material risks concerning a particular
      procedure. The Court finds that Iowa law does not include a
      duty to disclose personal characteristics or the experience of
      a physician or doctor in obtaining informed consent from a
      patient. Therefore, pursuant to Iowa law, the Court finds
      that the motion for summary judgment filed by Dr. Khanna
      and the Iowa Heart Center regarding informed consent is
      hereby sustained.

This ruling removed from the case the informed-consent claim based on

failure to disclose lack of experience.   This ruling did not remove the

informed-consent claim based on failure to advise Andersen of the risks

and dangers of the procedure due to his bad heart.

      In May 2011, Dr. Henri Cuenoud, one of the defendants’ experts,

was deposed. In that deposition, Dr. Cuenoud opined Andersen’s heart

valve “was severely stenotic and leaking a lot as well[, which] is the worst

valve condition you can get” and described Andersen’s heart’s presurgery

condition as exhausted, “like somebody at the end of a marathon.”

Dr. Cuenoud also concluded Khanna was aware of the poor condition of
                                         5

Andersen’s heart.     When asked, “[G]iven Mr. Andersen’s dire condition

prior to surgery, were there any special or out-of-the-ordinary steps that

Dr. Khanna should have taken to deal with it,” Dr. Cuenoud replied, “I

would say that I would have quoted a higher risk of surgery of not being

able to come off the pump . . . something like 25 percent chance of not

making it” and that, retrospectively, Khanna should have been more

forthcoming about the risk of surgery.

       Based on that information from Dr. Cuenoud’s deposition, on

June 1, 2011, Andersen filed a motion to reconsider the June 15, 2010

partial summary judgment ruling on informed consent.                     Andersen

asserted Khanna should have informed him of the increased risk of

surgery due to Andersen’s heart’s poor presurgical condition. Andersen

requested the court reverse its partial summary judgment grant and

“allow[ ] the parties to adduce evidence regarding the informed consent

issue as it has now developed in light of the anticipated testimony of

Dr. Henri Cuenoud.”

       On September 9, 2011, the plaintiffs voluntarily dismissed Mercy

from the lawsuit.     Therefore, any reference to Khanna will hereinafter

also refer to Iowa Heart.

       On September 20, 2011, a second judge ruled on the motion to

reconsider. The ruling provided in its entirety,

              The Court reconsiders its June 15, 2010, ruling and
       enters the following ruling modifying the same only as
       follows: The Plaintiffs shall be allowed to present evidence
       relating to Dr. Cuenoud’s awareness of the Plaintiff’s
       increased mortality risk and apprising the Plaintiff of the
       same.[2]




       2While the September 20, 2011 ruling says “Dr. Cuenoud,” we think it is clear
from the surrounding circumstances that the court meant to say “Khanna.”
                                     6

This ruling allowed Andersen to pursue an informed-consent claim based

on Khanna’s failure to disclose the increased risk from the heart’s

presurgery condition.

      This ruling also addressed Khanna’s second motion in limine, filed

June 10, 2011, which requested the court disallow “[a]ny reference to, or

evidence concerning, allegations of lack of informed consent, negligent

credentialing, and that Dr. Khanna was not qualified.” The court ruled

that limine request was

      SUSTAINED as to negligent credentialing. Dr. Khanna’s
      qualifications may be pursued by the Plaintiffs in the context
      of general negligence claim, along with the issue of informed
      consent consistent with the Court’s ruling on this issue on
      the Plaintiff’s Motion to Reconsider.

      Trial began in October 2011 but resulted in a mistrial on

October 31, 2011.    The court reset the case for trial to begin in April

2013. In anticipation of the second trial, Andersen submitted proposed

jury instructions, including an informed-consent instruction based on

Khanna’s failure to disclose a material risk due to the presurgery

condition of Andersen’s heart. The second trial also resulted in a mistrial

on April 15, 2013.      Following the second mistrial, both Andersen and
Khanna retained new counsel.

      The court reset the case for a third trial to begin in July 2014. On

June 30, 2014, Andersen submitted proposed jury instructions, which

again included informed consent based on Khanna’s failure to disclose a

material risk due to the presurgery condition of Andersen’s heart.

      At the pretrial conference on July 2, 2014, the parties argued

whether informed consent was still part of the case. Andersen claimed

informed consent based on failure to disclose the increased risk due to
                                     7

his bad heart remained an issue in the case. Khanna disagreed. Yet

another district court judge assigned to preside over the case stated,

      Well, here is where I’m still confused, more so from a lack of
      sustained involvement in this case. There was an informed
      consent claim that was the subject of a summary judgment
      motion which was granted. Now, ordinarily that would tell
      me everything I need to know about the viability of the
      informed consent claim. Has there been any effort to re-
      plead another informed consent claim since Judge
      Rosenberg’s [June 15, 2010] ruling?

Andersen’s counsel answered, “Not to my knowledge,” and the district

court proceeded to the next topic without resolving the informed-consent

issue. The court’s written order that followed the pretrial conference also

did not resolve or conclude whether informed consent based on failure to

disclose the increased risk due to Andersen’s bad heart remained an

issue in the case.

      In his case-in-chief at trial, Andersen did not offer evidence to

support his informed-consent claim based on failure to disclose the

increased risk due to his bad heart.      It appears he was waiting for

Dr. Cuenoud to testify as an expert witness to present evidence on this

claim. Khanna failed to move for a directed verdict on that issue at the

close of Andersen’s case-in-chief.
      This informed-consent issue arose again just before Dr. Cuenoud

was to testify. The court held a discussion outside the presence of the

jury. Andersen reminded the court of the increased risk claim supported

by Dr. Cuenoud’s testimony. Khanna again alleged that this issue was

out of the case due to the September 20, 2011 ruling.

      Following a break for the court to review the September 20, 2011

ruling on Andersen’s motion to reconsider, the discussion continued

between the court and counsel.       Based on the discussion, the court

determined the issue of informed consent had been previously closed and
                                     8

it was not going to reopen the issue at that point in the trial. The court

stated,

      All right. The parties and the Court have taken this case up
      to this point we’re now in the waning days of trial, after a
      week and a half of trial, operating under the assumption that
      informed consent was out of the case. I know that there
      have been some issues back and forth on this topic, but in
      general, either in terms of offers of proof or other proffers of
      evidence, nothing has been presented that would suggest
      that informed consent was going to be a theory of liability for
      the jury to resolve or at least to preserve for further review.
      I’m not going to reopen that issue mid-trial to allow for a
      discussion of whether or not Dr. Khanna should be found
      liable or negligent for not discussing any increased risks
      from the surgery that the doctor may be testifying about
      today.

            So I’m not going to reconsider the prior rulings on
      informed consent, while acknowledging that it is possible
      that Judge Stovall may have inserted the wrong doctor’s
      name in his [September 20, 2011] ruling regarding whose
      awareness of the increased mortality risk in apprising
      Mr. Andersen of the same may have been intended. I don’t
      know if that reference to the doctor’s awareness relates to
      Dr. Khanna or not. I don’t see any way to reasonably read
      that sentence without concluding that perhaps Dr. Cuenoud
      was inadvertently inserted when Dr. Khanna may have been
      intended.

             But that being said, the parties under the Court’s
      direction have kept this case from being developed as an
      informed consent case, and that’s not going to change mid-
      trial, with the plaintiffs having rested. And so we’ll have to
      await how that shakes out down the road, but for the
      remainder of the trial, informed consent is still out.

             But the doctor can be examined—Dr. Cuenoud can be
      examined consistent with his theories on causation
      regarding the risks that Mr. Andersen posed presurgery and
      the viability of the decision to be operated on.

Ultimately, the court ruled Dr. Cuenoud could not testify as to the

numerical quantification of the increased risk:

      To try to bring this back to a state of balance, I’m going to
      direct counsel and advise the doctor that he is not to testify
      regarding his knowledge or opinions regarding the
      quantification of any increased mortality risk posed to this
                                     9
      patient, because I think then we do have a slippery slope on
      apprisement and the potential for rebuttal. I think he can
      talk about his opinions as developed on causation that the
      type of failure experience by Mr. Andersen is common or to
      be expected or at least an issue that is addressed, but the
      degree it can be developed initially to be quantified in a way
      that might open the door to an informed consent claim that I
      think we have all been operating under the assumption is
      not available will not be allowed.

      The court’s ruling before Dr. Cuenoud’s testimony prevented

Andersen from eliciting evidence to support his informed-consent claim

based on the failure to disclose the increased risk due to his bad heart.

Nevertheless, the court acknowledged, if Khanna elicited testimony

opening the door to informed consent, it would allow Andersen to pursue

the issue.

      Following the testimony of defense expert Dr. Frazier Eales,

Andersen argued Khanna opened the door. In his testimony, Dr. Eales

was asked if Andersen’s heart’s presurgery condition would “have an

effect on the ventricle’s ability to be protected.” Dr. Eales responded,

      It has a huge effect. It not only has a huge effect on the
      ability to protect the muscle, but it has an effect on how
      much reserve, how much reserve strength there is, if you
      will, following the injury of cardiopulmonary bypass.

             When I operate on somebody, I frequently tell them
      this: I can guarantee that I’ll do my best job on the day that
      we’re going to do this operation. And I can guarantee that I’ll
      hurt them. I’ll hurt them pretty significantly. It’s a big
      incision. You’ve got to heal that up. And what we do in our
      work hurts the heart. It injures the heart. Every time.

            The fact we can do this successfully depends on
      whether the people have reserve capacity in their heart. You
      know, you don’t need to have it working at a hundred
      percent of possible output in order to do well. And we rely
      on every patient to have enough reserve there to get through
      the injury of the heart, the surgery itself, and recover, and
      recover really well, because we’ve eliminated the big problem.

            Mr. Andersen came to surgery with severe aortic
      stenosis, severe aortic insufficiency, severe left ventricular
      hypertrophy, and he had had the bicuspid aortic valve for
                                          10
       his entire life. So his heart has been working with an extra
       workload for a long, long time. There’s no question that this
       was a higher risk operation than the standard elective short
       procedure.

       Andersen argued Dr. Eales’s testimony regarding what he tells his

patients put the issue back in the case and the court should allow

Andersen to present evidence on that issue in rebuttal.                    The court
disagreed, ruling Dr. Eales’s testimony did not open the door to informed

consent and not allowing the informed-consent claim to be reintroduced.

       Like the ruling and limitation on Dr. Cuenoud’s testimony, this

ruling also prevented Andersen from eliciting evidence in support of the

informed-consent claim based on failure to disclose the increased risk

due to his bad heart. 3         Additionally, Andersen did not develop any

damage claim concerning his informed-consent claims because the court

removed the issue from the case. As there was no evidence before the

jury on any informed-consent issue, the court did not instruct the jury

on informed consent.

       The jury concluded Khanna was not negligent in performing the

Bentall procedure. Andersen appealed, and we transferred the case to

the court of appeals.       The court of appeals affirmed the district court.

Andersen applied for further review, which we granted. We will discuss

additional facts and procedural notes as needed.

       II. Issues.

       Four issues will resolve this appeal. First, we must decide whether

the district court erred in granting partial summary judgment when it


       3Andersen  made two offers of proof on this claim—one after Dr. Cuenoud’s
testimony and one after Dr. Eales’s testimony—in which Andersen testified Khanna did
not inform him of the poor presurgical condition of his heart or the increased mortality
risk from surgery because of that condition. Andersen also testified if he had been
informed, he would have talked to his primary cardiologist about those issues and
sought a second opinion before consenting to the surgery.
                                     11

decided under Iowa law a physician does not have a duty to disclose

information about the physician’s inexperience or lack of training. Next

is whether the district court erred when it did not allow Andersen to

proceed on the informed-consent claim based on Khanna’s failure to

disclose the risk of the surgery considering the bad condition of

Andersen’s heart. Third is whether a finding by the jury that Khanna

was not negligent precludes Andersen’s informed-consent claims. Lastly

is whether the district court erred when it denied Andersen’s request to

amend a jury instruction to include an additional, separate specification

of negligence.

       III. Scope of Review.

       Our review of summary judgment rulings is for correction of errors

at law. Baker v. City of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). “[W]e

examine the record before the district court to determine whether any

material fact is in dispute, and if not, whether the district court correctly

applied the law.”   Roll v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016)

(quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256,

258 (Iowa 1999)). “A fact is material when its determination might affect

the outcome of a suit.     A genuine issue of material fact exists when

reasonable minds can differ as to how a factual question should be

resolved.”   Linn v. Montgomery, 903 N.W.2d 337, 342 (Iowa 2017)

(citation omitted). We view the record in the light most favorable to the

nonmoving party. Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494,

501 (Iowa 2013). “We draw all legitimate inferences the evidence bears

that will establish a genuine issue of material fact.” Linn, 903 N.W.2d at

342.

       The court treated its ruling at trial that prevented Andersen from

introducing evidence regarding the informed-consent issue involving the
                                    12

failure to disclose the risks of the Bentall procedure considering

Andersen’s bad heart condition as an evidentiary issue.         We review

evidentiary rulings for an abuse of discretion. Stender v. Blessum, 897

N.W.2d 491, 501 (Iowa 2017); Giza v. BNSF Ry., 843 N.W.2d 713, 718

(Iowa 2014). “A court abuses its discretion when its ruling is based on

grounds that are unreasonable or untenable.” Giza, 843 N.W.2d at 718

(quoting In re Tr. #T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013)). A

ground is unreasonable or untenable when it is “based on an erroneous

application of the law.” Id. (quoting Tr. #T-1 of Trimble, 826 N.W.2d at

718). “Therefore, under our abuse-of-discretion standard, ‘we will correct

an erroneous application of the law.’ ”        Id. (quoting Rowedder v.

Anderson, 814 N.W.2d 585, 589 (Iowa 2012)).

      “Iowa law requires a court to give a requested jury instruction if it

correctly states the applicable law and is not embodied in other

instructions.”   Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa

2016) (quoting Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994)). “The

verb ‘require’ is mandatory and leaves no room for trial court discretion.”

Id. Therefore, “we review refusals to give a requested jury instruction for

correction of errors at law” when there is no discretionary component.

Id.

     IV. Whether the District Court Erred in Granting Partial
Summary Judgment Based on Its Conclusion that Under Iowa Law a
Physician Does Not Have a Duty to Disclose Information About the
Physician’s Inexperience or Lack of Training.

      A.   Informed Consent—Generally.          Iowa’s current informed-

consent law finds it genesis in two cases: Cowman v. Hornaday, 329

N.W.2d 422 (Iowa 1983), and Pauscher v. Iowa Methodist Medical Center,

408 N.W.2d 355 (Iowa 1987). In Cowman we adopted the “patient rule”

as the test defining the scope of a physician’s disclosure required to
                                           13

obtain informed consent to an elective procedure. 329 N.W.2d at 427.

And in Pauscher, we extended the patient rule’s applicability to “all

informed consent cases, in both elective and nonelective medical

procedures.” 408 N.W.2d at 359.

          [T]he doctrine of informed consent arises out of the
          unquestioned     principle    that     absent     extenuating
          circumstances a patient has the right to exercise control over
          his or her body by making an informed decision concerning
          whether to submit to a particular medical procedure.

Id. at 358 (citing Cowman, 329 N.W.2d at 424–25).                  “Thus, a doctor

recommending a particular procedure generally has, among other

obligations, the duty to disclose to the patient all material risks involved

in the procedure.” Id. (citing Cowman, 329 N.W.2d at 425); accord Doe v.

Johnston, 476 N.W.2d 28, 31 (Iowa 1991) (“Under the [patient] rule, the

patient’s right to make an informed decision about submitting to a

particular medical procedure places a duty on the doctor to disclose all

material risks involved in the procedure.”).

          Under the patient rule, “the physician’s duty to disclose is

measured by the patient’s need to have access to all information material

to making a truly informed and intelligent decision concerning the
proposed medical procedure.”              Pauscher, 408 N.W.2d at 359 (citing

Cowman, 329 N.W.2d at 425, 427); accord Doe, 476 N.W.2d at 31 (“That

duty is shaped, not by what the medical community would deem

material, but by the patient’s need for information sufficient to make a

truly informed and intelligent decision.”).               Several exceptions to the

patient rule’s disclosure requirement exist that are not applicable to this

case. 4



          4As   we acknowledged in Pauscher and Cowman,
                                            14

        Generally, to succeed on a claim of informed consent, the plaintiff

must establish four elements:

             (1) The existence of a material risk [or information]
        unknown to the patient;

              (2) A failure to disclose that risk [or information] on the
        part of the physician;

              (3) Disclosure of the risk [or information] would have
        led a reasonable patient in plaintiff’s position to reject the
        medical procedure or choose a different course of treatment;

                (4) Injury.

Pauscher, 408 N.W.2d at 360; accord Iowa State Bar Ass’n, Iowa Civil

Jury Instruction 1600.10 (2017). The element at issue here is element

number one.

        B.   Materiality of a Physician’s Experience or Training.                      The

district court granted partial summary judgment because it concluded

“that    Iowa    law    does    not    include     a   duty    to   disclose    personal

characteristics or the experience of a physician or doctor in obtaining
________________________________________
        a number of situations may be established by the defendant physician as
        a defense to an informed consent action, constituting exceptions to the
        duty to disclo[se]. These include:
                (1) Situations in which complete and candid disclosure might
        have a detrimental effect on the physical or psychological wellbeing of the
        patient;
               (2) Situations in which a patient is incapable of giving consent by
        reason of mental disability or infancy;
               (3) Situations in which an emergency makes it impractical to
        obtain consent;
               (4) Situations in which the risk is either known to the patient or is
        so obvious as to justify a presumption on the part of the physician that
        the patient has knowledge of the risk;
               (5) Situations in which the procedure itself is simple and the
        danger remote and commonly appreciated to be remote;
               (6) Situations in which the physician does not know of an
        otherwise material risk and should not have been aware of it in the
        exercise of ordinary care.
Pauscher, 408 N.W.2d at 360; accord Cowman, 329 N.W.2d at 426.
                                    15

informed consent from a patient.”        In other words, the district court

found, as a matter of law, a physician’s lack of experience or training is

never material to a patient’s decision to submit to a medical procedure.

We disagree.

      The duty to disclose under Iowa’s informed-consent law turns on

whether a reasonable person in the patient’s position would consider the

information at issue to be material to the decision of whether to undergo

the proposed treatment. Pauscher, 408 N.W.2d at 359, 361–62. We have

never categorically excluded a particular type of information, such as a

physician’s personal characteristics. Instead, our practice has been to

apply the objective reasonable-patient standard to the undisclosed

information at issue in a particular case to determine if the failure to

disclose that information breached the physician’s duty. E.g., Doe, 476

N.W.2d at 31–32; Pauscher, 408 N.W.2d at 360–62; see Bray v. Hill, 517

N.W.2d 223, 225–26 (Iowa Ct. App. 1994) (en banc). We see no reason to

change that approach as it applies to information that can be categorized

as personal characteristics of the physician. Accordingly, we conclude

the district court erred when it found, as a matter of law, there is no duty

to disclose personal characteristics, such as experience and training,

under Iowa law.

      Khanna raises several arguments in support of a blanket, bright-

line rule against requiring disclosure of personal characteristics when

those characteristics are material. We address each in turn.

      First, Khanna claims any such holding will impose a duty on

physicians to disclose personal information. We agree our holding does

impose such a duty, but we emphasize that duty is imposed only when

that personal information is material to the decision of a reasonable
                                          16

person in the patient’s position to or not to undergo the proposed

treatment.

       We also note Iowa caselaw already implicitly imposes such a duty.

For example, in Bray, the court of appeals upheld the exclusion of

evidence of the physician’s probationary status because that status did

not relate to the physician’s qualifications as a surgeon or bear on any

material risks involved in the procedure.              517 N.W.2d at 226.            This

reasoning implies the failure to disclose personal information, such as

the physician’s probationary status, may be the basis for an informed-

consent claim in certain circumstances. See id. For example, what if the

physician was on probation for repeatedly, incorrectly performing the

exact same procedure he or she planned to perform on the patient?

Would this not be material?

       Khanna next contends Iowa Code section 147.137 defines what a

physician must disclose. 5 Because this court has acknowledged section

       5Section   147.137 provides,
               A consent in writing to any medical or surgical procedure or
       course of procedures in patient care which meets the requirements of
       this section shall create a presumption that informed consent was given.
       A consent in writing meets the requirements of this section if it:
              1. Sets forth in general terms the nature and purpose of the
       procedure or procedures, together with the known risks, if any, of death,
       brain damage, quadriplegia, paraplegia, the loss or loss of function of any
       organ or limb, or disfiguring scars associated with such procedure or
       procedures, with the probability of each such risk if reasonably
       determinable.
              2. Acknowledges that the disclosure of that information has been
       made and that all questions asked about the procedure or procedures
       have been answered in a satisfactory manner.
               3. Is signed by the patient for whom the procedure is to be
       performed, or if the patient for any reason lacks legal capacity to
       consent, is signed by a person who has legal authority to consent on
       behalf of that patient in those circumstances.
Iowa Code § 147.137 (2018). As a historical side note, the text of section 147.137 has
not changed since it was adopted in 1975.
                                    17

147.137 is “[t]he most definitive statement of public policy on this issue”

and “is a plain statement of the requirements of the patient rule,”

Pauscher, 408 N.W.2d at 360, 361, Khanna argues any expansion of the

duty to disclose beyond the express language of section 147.137 should

come from the legislature.

      This argument mischaracterizes the reason Pauscher cited section

147.137. In Pauscher, we concluded the patient rule, as opposed to the

“professional rule,” would apply as the test to determine what

information a physician must disclose to obtain informed consent. Id. at

361. We found support for our rejection of the professional rule, from a

public policy perspective, in the language of section 147.137, which we

concluded corresponded with the patient rule, not the professional rule.

Id. at 360–61.

      We did not conclude the scope of required disclosures under the

patient rule is limited to those subjects enumerated in section 147.137.

Indeed, we have consistently rejected such a limited, bright-line

approach to the scope of disclosure. See Doe, 476 N.W.2d at 31 (holding

a physician must disclose reasonably available alternative methods of

treatment even though such a requirement does not neatly fit within a

strict construction of the patient rule language from Pauscher and

Cowman); Pauscher, 408 N.W.2d at 362 & n.2 (noting there is no bright-

line that denotes when a risk is too remote to be material and “[t]here is

no bright line separating the significant from the insignificant; the

answer in any case must abide a rule of reason” (quoting Canterbury v.

Spence, 464 F.2d 772, 788 (D.C. Cir. 1972))).

      Additionally, Khanna’s interpretation of section 147.137 as an

exhaustive list of required disclosures reads too much into the statute.

Section 147.137 merely creates a presumption of informed consent when
                                        18

there    is   a   signed   writing   addressing   the   enumerated   subjects.

Nevertheless, that presumption is rebuttable. In this case, Khanna has

not produced or relied upon a written consent. Moreover, our holding in

Doe indicates information beyond the scope of section 147.137 may be a

required disclosure.       Compare Iowa Code § 147.137 (2018) (requiring

written disclosure to include “the nature and purpose of the procedure or

procedures, together with the known risks, if any, of death, brain

damage, quadriplegia, paraplegia, the loss or loss of function of any

organ or limb, or disfiguring scars associated with such procedure or

procedures, with the probability of each such risk if reasonably

determinable”), with Doe, 476 N.W.2d at 31 (holding physician must

disclose reasonably available alternative treatments).

        Khanna cites to several cases from other jurisdictions where courts

have tied the scope of required disclosures to the language of the

jurisdictions’ informed-consent statutes.         However, these cases are

unpersuasive because, unlike Iowa’s informed-consent statute, the other

statutes preempt the common law. See Ditto v. McCurdy, 947 P.2d 952,

958–59 (Haw. 1997) (“Hawaii’s statute on informed consent expressly

mandates that the board of medical examiners establish standards for

physicians or surgeons to follow in disclosing information to a patient ‘to

ensure that the patient’s consent to treatment is an informed consent.’ ”

(quoting Haw. Rev. Stat. § 671-3(a) (1993)); Abram ex rel. Abram v.

Children’s Hosp. of Buffalo, 542 N.Y.S.2d 418, 418–19 (App. Div. 1989);

Foard v. Jarman, 387 S.E.2d 162, 164 (N.C. 1990).               In contrast,

Louisiana, a jurisdiction that has an informed-consent statute almost

identical to Iowa’s, has not interpreted its statute as preempting the

common law. See Hidding v. Williams, 578 So. 2d 1192, 1195, 1196–98

(La. Ct. App. 1991) (citing La. Stat. Ann. § 40:1299.40 (now § 40:1157.1))
                                    19

(holding the physician’s failure to disclose his chronic alcohol abuse

vitiated the consent to surgery because that condition created a material

risk associated with the physician’s ability to perform the surgery).

      Next, Khanna alleges expanding the duty to disclose to include

physician-specific information will lead to several problems.           First,

Khanna notes “[n]umerical information such as procedure experience

and complication values present complex issues.” For example, there is

no standardization method for gathering or reporting such statistical

information. See Jennifer Wolfberg, Comment, Two Kinds of Statistics,

the Kind You Look Up and the Kind You Make Up: A Critical Analysis of

Comparative Provider Statistics and the Doctrine of Informed Consent, 29

Pepp. L. Rev. 585, 596 (2002). There is, likewise, no standardized rule as

to how a physician can present such information to the patient. Second,

Khanna alleges requiring disclosure of physician-specific information will

force physicians to choose between disclosing protected peer review

information and risking an informed-consent lawsuit for failing to

disclose that information.

      With respect to Khanna’s concerns about numerical information,

we note that the issue in this case does not involve disclosure of

statistical data but rather information as to whether the treating

physician has ever performed or received specialized training for the

particular procedure. This type of experience and training information

does not have the same standardization issues as statistical information.

Moreover, a physician can disclose such nonstatistical information

without requiring the physician to divulge protected peer review

information.   Indeed, at trial several experts testified regarding the

number of Bentall procedures they had performed and their training to

perform the procedure in order to establish their competency to testify as
                                           20

expert witnesses. It stands to reason that if such information is relevant

to establishing a witness’s expertise, such information could be material

to a reasonable patient’s decision to or not to undergo a particular

treatment.

      Next, Khanna relies on several cases from other jurisdictions to

support his argument for a limited interpretation of the informed-consent

doctrine.    Nevertheless, we find these cases unpersuasive for multiple

reasons.

      First,    several      of    those       jurisdictions   base   their     limited

interpretations on adherence to the particular jurisdiction’s preference

against expansion.        See Duffy v. Flagg (Duffy II), 905 A.2d 15, 20–21

(Conn. 2006) (holding physician’s experience with the procedure was not

relevant to informed consent because that information did not relate to

one of Connecticut’s four disclosure factors and noting the doctrine of

informed consent under Connecticut law is limited); Duttry v. Patterson,

771 A.2d 1255, 1258–59 (Pa. 2001) (holding evidence of physician’s

qualifications and experience is not relevant to an informed-consent

claim because, under Pennsylvania law, the doctrine of informed consent

is limited and only five types of information are considered material); cf.

Ditto, 947 P.2d at 958–59 (holding there is no duty to affirmatively

disclose qualifications or lack thereof because that issue is best left to

the legislature and state board of medical examiners).                   As previously

noted,     we   have   not        shown    a    similar   predilection    for   limited

interpretation. See, e.g., Doe, 476 N.W.2d at 31.

      Second, at least one of the cases Khanna cites has been abrogated

in part. Khanna cites to Whiteside v. Lukson, wherein the Washington

Court of Appeals “conclude[d] that a surgeon’s lack of experience in

performing a particular surgical procedure is not a material fact for
                                    21

purposes of finding liability predicated on failure to secure an informed

consent.” 947 P.2d 1263, 1265 (Wash. Ct. App. 1997). But in Housel v.

James, the Washington Court of Appeals implicitly limited the effect of its

holding in Whiteside when it refused to “categorically hold[ ] that a

physician’s inexperience is never material to an informed consent claim.”

172 P.3d 712, 716 (Wash. Ct. App. 2007).               The Housel court

acknowledged “[t]here may well be situations where evidence of a

physician’s experience would be a significant factor in a patient’s

decision to undertake a particular course of treatment.” Id.

      Third, one of the cases rejected arguments that physicians are

required to disclose their personal success rates for a particular

procedure. Wlosinski v. Cohn, 713 N.W.2d 16, 20 (Mich. Ct. App. 2005).

In Wlosinski, the court reasoned a particular physician’s success rate

was not a risk related to the particular medical procedure, such evidence

is irrelevant because the failure of a particular procedure does not mean

the physician was negligent in performing the procedure, and requiring

disclosure of such would encourage physicians to treat only low-risk

patients. Id. at 20–21, 21 n.4.

      The concerns that led the Michigan court to reject evidence of a

physician’s success rate as to a particular procedure support our

conclusion that a physician’s experience and training can be material.

First, a physician’s lack of experience or training on a particular

procedure can increase the risk of complications. For example, in this

case, multiple experts opined that Khanna’s lack of experience and

training on this Bentall procedure increased the odds of serious

complications.   Second, like how a physician’s success rate is not

indicative of whether the physician performed a particular procedure

negligently, a physician’s experience and training is also irrelevant to the
                                     22

issue of negligent performance. See id. at 21. But that is not the issue

here. A claim for informed consent does not depend on if the physician

performed the procedure negligently; rather, it turns on whether the

physician failed to obtain consent by failing to disclose material

information.   Thus, evidence of a physician’s training and experience

could be relevant because it could indicate the physician failed to

disclose material information. Third, to the extent the Michigan court’s

concern about encouraging physicians to treat only low-risk patients has

merit, requiring physicians to disclose their experience and training on

the particular procedure at issue will encourage physicians to gain as

much training and experience with the procedure as possible.

      Finally, we find the reasoning from courts that have interpreted

their informed-consent doctrines in a broader fashion more persuasive

and in line with the development of our informed-consent doctrine. In

Johnson ex rel. Adler v. Kokemoor, the Wisconsin Supreme Court

concluded information about the physician’s lack of experience or

training and the difficulty of the procedure was material. 545 N.W.2d

495, 505 (Wis. 1996).     In so holding, the court declined to narrowly

construe the state’s informed-consent statute. See id. It also rejected a

bright-line rule against such evidence because the materiality of such

information is dependent on the facts and circumstances of the

particular case.   See id. at 502, 504–05 (noting what information is

material will vary from case to case).

      Similarly, in Goldberg v. Boone, the Maryland high court held the

question of whether a reasonable person would have deemed information

about the physician’s lack of experience to be material is a question for

the jury.   912 A.2d 698, 717 (Md. 2006).      The Maryland court also

rejected a bright-line rule and declined to adopt an all-inclusive list of
                                      23

matters to disclose. Id. at 716. To support its holding, the court cited to

its precedent, which recognized a physician’s level of training and

experience may be material.      Id. (citing Dingle v. Belin, 749 A.2d 157,

165–66 (Md. 2000)).

      In Moore v. Regents of the University of California, the California

Supreme Court, noting the concept of informed consent is a broad one,

held a physician must disclose personal information unrelated to the

patient’s health that may affect the physician’s professional judgment.

793 P.2d 479, 485 (Cal. 1990) (in bank). At issue in the Moore case was

the physician’s failure to disclose that he had a research interest in the

procedure conducted on the patient. Id. at 483. Khanna cites to Arato v.

Avedon, a subsequent California Supreme Court case, which refused to

endorse mandatory disclosure of life expectancy probabilities, 858 P.2d

598, 607 (Cal. 1993) (in bank), to support his argument. But Khanna

ignores Arato’s caveat to its refusal: “the better rule is to instruct the jury

that a physician is under a legal duty to disclose to the patient all

material information . . . needed to make an informed decision regarding

a proposed treatment.” Id.

      In Hidding, the Louisiana Court of Appeals held the physician had

a duty to disclose his chronic alcohol abuse. 578 So. 2d at 1196. The

court reasoned such a “condition creates a material risk associated with

the surgeon’s ability to perform, which if disclosed would have obliged

the patient to have elected another course of treatment.” Id.

      Like these courts, Iowa courts have consistently comprehended a

flexible approach to the doctrine of informed consent. See, e.g., Doe, 476

N.W.2d at 31 (requiring disclosure of reasonably available alternative

methods of treatment even though the patient rule as expressed in

Pauscher and Cowman did not explicitly require such a disclosure);
                                        24

Pauscher, 408 N.W.2d at 362 & n.2 (noting there is no bright-line

determining when the probability of a risk is too remote to be material).

Like the Hidding and Johnson courts, we find whether a physician’s

particular    characteristics,   such    as    the    physician’s    training    and

experience with a particular procedure, are material will depend on the

facts   and    circumstances     of   the     case,   such   as     whether     those

characteristics create or increase the risk to the patient. See Hidding,

578 So. 2d at 1196; Johnson, 545 N.W.2d at 502, 504–05; see also Bray,

517 N.W.2d at 226. Further, like the California and Goldberg courts, we

believe the question of whether certain information is material is best left

to the jury in most cases. See Arato, 858 P.2d at 607; Goldberg, 912

A.2d at 717.

        Accordingly, we hold a physician’s experience or training with the

proposed treatment can be information material to the decision of a

reasonable person in the patient’s position to or not to undergo the

proposed treatment. Whether such information is material will depend

on the facts and circumstances of each case and will be for the jury to

decide, unless as a matter of law no reasonable person in the patient’s

position would find such information material.

        The record reveals a Bentall heart procedure is a very complicated

procedure. The experts characterized a Bentall heart procedure as being

harder to perform than a heart transplant. It is reasonable that anyone

undergoing such a procedure would want to know his or her physician’s

experience and training, or lack thereof, before consenting to such a

procedure by that physician.          Under these circumstances, we cannot

conclude as a matter of law that no reasonable person in Andersen’s

position would find such information immaterial to his or her decision to

have the surgery before consulting another physician.
                                   25
     V. Whether the District Court Erred When It Did Not Allow
Andersen to Proceed on the Informed-Consent Claim Based on
Khanna’s Failure to Disclose the Risk of the Surgery Considering
Andersen’s Bad Heart.

      When the district court judge made his ruling during trial

precluding Andersen from pursuing the informed-consent claim based on

Khanna’s failure to disclose the risk of the surgery considering

Andersen’s bad heart, the issue was still part of the case. Andersen pled

the issue.    Although a prior court order seemed to dismiss all of

Andersen’s informed-consent claims, a subsequent order allowed an
informed-consent claim based on Khanna’s failure to disclose the risk of

the surgery considering Andersen’s bad heart to proceed.              The

subsequent order was based upon Khanna’s expert Dr. Cuenoud’s

deposition testimony that Khanna should have told Andersen of the risk

of the surgery due to Andersen’s bad heart prior to performing the

surgery.

      Pretrial,   Andersen   submitted    requested   jury   instructions

applicable to the informed-consent claim based on Khanna’s failure to

disclose the risk of the surgery considering Andersen’s bad heart.

Additionally, the court held a pretrial conference.      But neither the

discussion at nor the written ruling following the pretrial conference

indicates this informed-consent claim was out of the case. At the close of

Andersen’s case-in-chief, the court did not enter a directed verdict on
this claim.

      Andersen inquired what he could ask Dr. Cuenoud on cross-

examination regarding this informed-consent claim as an attempt to

avoid violating a motion-in-limine ruling. Because this informed-consent

claim was still part of the case, Dr. Cuenoud’s anticipated testimony

would have been relevant to that issue and not unduly prejudicial. The
                                    26

court had an extensive colloquy with counsel. From the colloquy, it is

apparent everyone at the trial, including the judge, knew the evidence

supporting this informed-consent claim was to come from Dr. Cuenoud.

It was at that time the court ruled Andersen could not elicit testimony

from Dr. Cuenoud to support this informed-consent claim. We find this

ruling at that late time to be an abuse of discretion because it was

unreasonable or untenable based on its erroneous application of the law.

      Although Andersen had rested when Dr. Cuenoud took the stand,

our caselaw has long established that parties may rely on opposing

parties’ evidence to make their cases.    See, e.g., Goldapp v. Core, 236

Iowa 548, 553–55, 19 N.W.2d 673, 675–76 (1945) (implicitly accepting

one party’s reliance on testimony produced by opposing party); Urdangen

v. Edwards, 187 Iowa 1005, 1013–14, 174 N.W. 769, 772 (1919)

(allowing evidence produced by plaintiff to corroborate defendant’s case);

Kolb v. Mall, 187 Iowa 193, 197, 174 N.W. 226, 228 (1919) (“The

testimony on this point was all put in by the plaintiff. While she was

under no duty to prove that Sam Mall was at any time insolvent, and had

the right to demand proof that, at stated and material times, he was

solvent, yet if, in her volunteer proof, she establishes that solvency, of

course the defendants may avail themselves of such proof. It does not

matter how the preponderance is created, if it exists.” (Emphasis added.));

Buseman v. Schultz, 154 Iowa 493, 495, 132 N.W. 378, 378 (1911)

(holding defendant did not need to offer any evidence to support his

justification defense to false imprisonment allegation where every

element of justification defense was proved by plaintiff’s evidence);

Ringstad v. Hanson, 150 Iowa 324, 330, 130 N.W. 145, 147 (1911)

(“Exception is taken to proof of title by plaintiff in that he failed to

introduce in evidence a plat of Callanan. The defect, if any, was cured by
                                    27

its introduction by defendant.”); Marks v. McGookin, 127 Iowa 716, 718,

104 N.W. 373, 373 (1905) (acknowledging defendants could prevail by

relying solely on plaintiff’s evidence but only if plaintiff’s evidence was

sufficient in itself to prove defendants’ case). Therefore, nothing in this

record would have prevented Andersen from relying on testimony

garnered from Dr. Cuenoud on cross-examination to support the

informed-consent claim based on Khanna’s failure to disclose the risk of

the surgery considering Andersen’s bad heart. The district court erred in

preventing him from doing so.

      Additionally, when the district court refused to allow Andersen to

generate evidence from Dr. Cuenoud supporting this informed-consent

claim, the court expressly stated it was “not going to reconsider the prior

rulings on informed consent.”     This statement effectively solidified the

court’s prior rulings as the law of the case because the practical effect of

the court’s statement was to accept the prior rulings’ conclusions, which

is essentially acknowledging the prior rulings’ conclusions are the law of

the case. See Hoefer v. Wis. Educ. Ass’n Ins. Tr., 470 N.W.2d 336, 339

(Iowa 1991) (en banc) (acknowledging the district court’s ability to change

a prior interlocutory ruling “enhances the court’s integrity by refusing to

give either party a ‘vested right to require the court to perpetuate its

mistake,’ ” and thereby implying the power is for correcting errors, not for

changing prior rulings because one party dislikes its effect (emphasis

added) (quoting Kuiken v. Garrett, 243 Iowa 785, 793, 51 N.W.2d 149,

154 (1952))).

      The prior rulings allowed for Dr. Cuenoud to establish Andersen’s

informed-consent claim based on Khanna’s failure to disclose the risk of

the surgery considering Andersen’s bad heart. Accordingly, because the

court misapplied the law of the case when it precluded Andersen from
                                    28

adducing evidence from Dr. Cuenoud to support this informed-consent

claim, the court abused its discretion. See, e.g., Lee v. State, 906 N.W.2d

186, 194 (Iowa 2018) (“A court abuses its discretion when the grounds or

reasons for the court’s decision are ‘clearly untenable’ or when the court

has exercised its discretion to an extent that is ‘clearly unreasonable.’ ”

“A ground or reason is untenable when it is not supported by substantial

evidence or when it is based on an erroneous application of the law.”

(Emphasis added.) (quoting Equity Control Assocs., Ltd. v. Root, 638

N.W.2d 664, 674 (Iowa 2001))).

      The effect of the court’s erroneous refusal to allow Andersen to

adduce evidence in support of the informed-consent claim based on

Khanna’s failure to disclose the risk of the surgery considering

Andersen’s bad heart was prejudicial to Andersen. Under the evidentiary

analysis, Dr. Cuenoud’s anticipated testimony that the presurgery

condition of Anderson’s heart increased the risk of death to twenty-five

percent was the only expert testimony quantifying the increased risk.

Our caselaw requires the patient “to present expert testimony relating to

the nature of the risk and the likelihood of its occurrence” whenever the

undisclosed information involves a risk. Pauscher, 408 N.W.2d at 360.

Without Dr. Cuenoud’s testimony that there was a twenty-five percent

chance Andersen would not make it, Andersen would not be able to meet

this requirement.   Additionally, Dr. Cuenoud’s testimony was the only

anticipated testimony discussing a physician informing the patient of

such an increase in risk.     Dr. Cuenoud’s anticipated testimony was

necessary to Andersen’s informed-consent claim based on Khanna’s

failure to disclose the risk of the surgery considering Andersen’s bad

heart, and Andersen was prejudiced by the court’s ruling.
                                       29
      VI. Whether a Finding by the Jury that Khanna Was Not
Negligent Precludes Andersen’s Informed-Consent Claims.

       Khanna argues even if the court erred in not submitting

Andersen’s informed-consent claims, the jury’s finding of no negligence

defeats Andersen’s claims. This argument assumes any damages caused

by Khanna’s negligent performance are the same damages caused by his

failure to obtain informed consent. They are not.

       A leading treatise in the area recognizes an informed-consent claim

does not depend on whether the physician was negligent in performing

the treatment. 2 Dan B. Dobbs et al., The Law of Torts § 308, at 217 (2d

ed. 2011) [hereinafter Dobbs et al.] (“The patient who asserts that she

was not given appropriate medical information . . . is asserting that, even

if the physician was not negligent in performing the procedure, he is

liable for harmful results because the patient would have refused

consent and avoided the harm had she been appropriately informed.”);

id. § 308, at 219 (“The negligence in the informed consent claim is not

negligence in performing a medical procedure, but rather negligence in

failing to explain its risks, alternatives, and other related information.”);

id. § 308, at 220 (“Under neither [the negligence nor battery approach to

informed consent] is the plaintiff required to prove negligence in

conducting the operation. . . .         The wrong done is not a negligent

operation but a failure to respect the patient’s right of choice.”); id. § 311,

at 236 (“The gist of the plaintiff’s informed consent claim most commonly

is   that   her   consent   to   a   medical   procedure   was procured     by

nondisclosure of risks or other information the defendant was required to

disclose, that the procedure caused harm even if the procedure was

skillfully performed, and that the plaintiff would not have undergone the

procedure and suffered the harm had she been properly informed. Such
                                     30

a claim, if proved, would establish but-for causation; but for the tortious

nondisclosure, the plaintiff would have escaped the harm suffered.”

(Emphasis added.)).

      Similarly, the cases reaching this issue do not require the

physician to be negligent in performing the treatment in order for an

informed-consent claim to be available. E.g., Duffy v. Flagg (Duffy I), 869

A.2d 1270, 1277 (Conn. App. Ct. 2005), rev’d on other grounds, Duffy II,

905 A.2d at 18; Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73,

79 (N.J. 2002) (“The damages analysis in an informed consent case

involves a comparison between the condition a plaintiff would have been

in had he or she been properly informed and not consented to the risk,

with the plaintiff’s impaired condition as a result of the risk’s occurrence.

Our case law does not require a plaintiff to prove that the physician

deviated from the standard of care in performing the operation or

procedure; the physician’s negligence is in the inadequate disclosure and

the damages claimed derive from the harm to the patient caused by a

procedure that would not have occurred if the disclosure had been

adequate.”   (Citation omitted.)); Parris v. Limes, 277 P.3d 1259, 1263

(Okla. 2012) (“If a physician breaches this duty [to inform the patient of

the medical options and their attendant risks], a patient’s consent is

defective, and the physician is responsible for the consequences. If the

physician obtains a patient’s consent but has breached this duty to

inform, ‘the patient has a cause of action sounding in negligence for

failure to inform the patient of his options, regardless of due care

exercised at treatment, assuming there is injury.’ ”     (Emphasis added.)

(Citation omitted.) (quoting Scott v. Bradford, 606 P.2d 554, 557 (Okla.

1979))); Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992); Backlund v. Univ.

of Wash., 975 P.2d 950, 954–55 (Wash. 1999) (en banc).
                                    31

      Even those jurisdictions that explicitly reject an informed-consent

claim based on failure to disclose experience or training do not require

negligent performance as an element of an informed-consent claim. See,

e.g., Duffy I, 869 A.2d at 1277 (“[W]e note that the viability of an

informed consent claim does not depend on proof of malpractice relating

to a particular medical procedure. Consequently, our case law does not

require a plaintiff to prove that the physician deviated from the standard

of care in performing the particular medical procedure at issue in a claim

based on lack of informed consent because the physician’s negligence is

the inadequate disclosure, and the damages claimed derive from the

harm to the patient caused by a procedure that would not have occurred

if the disclosure had been adequate. Thus, even though the plaintiff’s

claim of medical malpractice failed, she, nevertheless, may have

prevailed on a separate claim of lack of informed consent.”      (Footnote

omitted.) (Citations omitted.)); Gouse, 615 A.2d at 334 (“[T]he physician

or surgeon who operates without his patient’s informed consent is liable

for damages which occur, notwithstanding the care exercised.”); see also

Backlund, 975 P.2d at 954–55 (“We note the trial court here made

reference to the conduct of Dr. Jackson being in compliance with the

standard of care as a factor in its decision on informed consent. The trial

court’s emphasis on the patient’s likely following of the non-negligent

recommendation of a physician goes too far in confusing negligence and

informed consent   claims.     Negligence   and   informed   consent   are

alternative methods of imposing liability on a health care practitioner.

Informed consent allows a patient to recover damages from a physician

even though the medical diagnosis or treatment was not negligent. . . .

The [Washington] Court of Appeals in Holt [v. Nelson] aptly explained that

if a doctor breaches the ‘duty to obtain an informed consent from the
                                     32

patient before proceeding with treatment, the patient has a cause of

action for damages against the doctor even if the doctor has performed

the treatment properly within the standard of care of the profession.

Thus, the cause of action can arise against a doctor for failing to obtain

the patient’s knowledgeable permission to the treatment even though the

doctor’s actions have not been negligent and would not give rise to a

cause of action in any other way.’ ” (First emphasis added.) (Citations

omitted.) (quoting Holt v. Nelson, 523 P.2d 211, 216–17 (Wash. Ct. App.

1974))).

      Some jurisdictions require the undisclosed risk to materialize and

cause harm, but that requirement is not the same as the physician

performing the treatment negligently.     See, e.g., Hales v. Pittman, 576

P.2d 493, 499 (Ariz. 1978) (in banc) (noting the wrong in an informed-

consent claim is not the operation itself but rather the failure to disclose,

and requiring the unrevealed risk to materialize and cause harm);

Howard, 800 A.2d at 79–80 (noting the informed-consent damages

analysis involves comparison of the condition the patient would have

been in if the patient had been informed and not consented to the risk

with the condition the patient is in as a result of the risk’s occurrence,

but also noting the patient does not have to prove the physician

negligently performed the procedure); see also Canterbury, 464 F.2d at

790 (landmark informed-consent case requiring “[a]n unrevealed risk

that should have been made known [to] materialize” and “[o]ccurrence of

the risk [to] be harmful to the patient,” but not requiring negligent

performance of the treatment); Kinikin v. Heupel, 305 N.W.2d 589, 591,

594–96 (Minn. 1981) (en banc) (noting informed-consent case plaintiff

must prove, inter alia, “the undisclosed risk materialized in harm,” and
                                         33

upholding jury verdict for plaintiff on informed-consent claim even

though jury found physician did not perform negligently).

      In   a   couple   jurisdictions,    the   plaintiff’s   “injury”   from   the

physician’s failure to obtain informed consent does not have to be

physical or a result of the materialization of the undisclosed risk.             In

Lugenbuhl v. Dowling, the Louisiana Supreme Court addressed a

situation where an undisclosed risk did not materialize and cause

physical harm to the patient.       701 So. 2d 447, 455 (La. 1997).              In

Lugenbuhl, the plaintiff consented in writing to a medical procedure

performed with surgical mesh but, during the procedure, the physician

decided not to use mesh.      Id. at 449, 453.       The court determined the

physician breached his disclosure duty when he failed to explain the

advantages, disadvantages, and risks of using mesh, and “the necessity

of reserving the decision on the use of mesh to the surgeon during the

course of the operation.”      Id. at 454.      The court noted this was an

atypical informed-consent situation because the physician’s breach of his

duty to disclose “caused plaintiff to undergo a medical procedure to

which the plaintiff expressly objected and for which the doctor failed to

provide adequate information in response to the patient’s request,

thereby causing damages to plaintiff’s dignity, privacy and emotional well-

being.” Id. at 455 (emphasis added). The court determined the injury in

this situation “was to plaintiff’s personal dignity and right of privacy,” an

injury that was compensable. Id. at 455–56. At no point did the court

predicate the plaintiff’s right to damages on whether the physician

negligently performed the procedure. The injury in Lugenbuhl, invasion

of the right to make an informed decision, is analogous to the injury in a

wrongful-birth claim in Iowa. See Plowman v. Fort Madison Cmty. Hosp.,

896 N.W.2d 393, 403 (Iowa 2017) (“The compensable injury in a
                                     34

wrongful-birth claim is the parents’ loss of the opportunity to make an

informed decision to terminate the pregnancy.       This is analogous to a

claim for medical negligence based on lack of informed consent.”).

      In Schiff v. Friberg, the plaintiff was injured when her colon was

allegedly perforated during surgery and she subsequently filed an

informed-consent claim, alleging the physician failed to warn her of that

risk. 771 N.E.2d 517, 521–22 (Ill. App. Ct. 2002). The physician moved

for directed verdict, claiming the plaintiff failed to establish that her

injury (i.e., the perforated colon) was caused by the undisclosed risk (i.e.,

the risk of puncture by a surgical instrument). Id. at 526, 529. In other

words, the physician claimed the plaintiff failed to present evidence the

undisclosed risk materialized.     See id.   The Illinois appellate court’s

analysis disregards the physician’s materialization-of-risk reasoning. Id.

at 529–30.    Instead, the appellate court stated the elements of an

informed-consent claim, which notably do not include materialization of

the undisclosed risk or negligent performance of the procedure, and

concluded a directed verdict would be improper. Id. According to The

Law of Torts treatise, the effect of this analysis is to permit a “plaintiff

who would have rejected the medical procedure had she been properly

informed to recover for failure to disclose significant risks, even when the

injury suffered is not a result of the unrevealed risk.”     2 Dobbs et al.

§ 308 & n.30, at 221.

      In Parris, while discussing the injury element of an informed-

consent claim, the Oklahoma Supreme Court acknowledged “the

occurrence of an undisclosed risk is important to the determination of

injury and absent such occurrence, a physician’s failure to reveal the

risk is possibly not actionable.” 277 P.3d at 1263 (emphasis added). But

the court stated that focus on the occurrence of an undisclosed risk “is
                                    35

not relevant to recovery by a patient who contends he would have

foregone the treatment altogether, if he had been fully informed of all

material facts.” Id. at 1263–64. The court reasoned “the physician is

‘responsible for the consequences’ of providing treatment without having

obtained informed consent and one of the elements of damage is any

injury and expense caused by the treatment.” Id. at 1264 (quoting Smith

v. Karen S. Reisig, M.D., Inc., 686 P.2d 285, 288–89 (Okla. 1984)).

      Here, the court removed Andersen’s informed-consent claims from

the case prior to Andersen developing his damage claims arising from

Khanna’s failure to obtain informed consent. However, it is clear that in

regard to Andersen’s informed-consent claim based on Khanna’s failure

to disclose the risk of the surgery considering Andersen’s bad heart, the

risk Khanna should have disclosed was the exact injury he suffered

regardless of whether Khanna performed the procedure pursuant to the

applicable standard of care. As for the informed-consent claim based on

Khanna’s lack of experience, Andersen should have the opportunity to

develop his theory of injury and damages before we summarily dismiss

those claims. Accordingly, under this record the appropriate remedy is

to remand the case for further proceedings on the informed-consent

claims.

      VII.   Whether the District Court Erred When It Denied
Andersen’s Request to Amend a Jury Instruction to Include an
Additional, Separate Specification of Negligence.

      Generally, lack of qualifications or experience is not by itself an

independent basis for negligent performance.      Cf. State v. Davis, 196

N.W.2d 885, 894 (Iowa 1972) (holding testimony on the failure to have a

valid driver’s license was irrelevant “in the absence of a showing of a

causal relationship between the invalid license and the collision”).
                                    36

Andersen requested a separate specification of negligence that read, in

part,

        1. Sohit Khanna, M.D. was negligent in one or more of the
        following ways:

        a. In performing the Bentall procedure on Alan Andersen
        without being properly trained or without the experience to
        do so.

        The district court declined to add the requested specification,

concluding “that issue is embedded within all of the specifications.”

However, as part of its ruling, the court did allow Andersen to argue

Khanna’s lack of qualifications and experience regarding the Bentall

procedure in connection with the submitted specifications of negligence.

The specifications actually submitted to the jury included,

        a. In providing inadequate myocardial protection to Alan
        Andersen’s heart during the Bentall procedure; or

        b. In improperly reattaching Alan Andersen’s left main
        coronary artery during the Bentall procedure; or

        c. In taking too much time to perform the left main coronary
        artery bypass in response to the failure of Alan Andersen’s
        left ventricle following the Bentall procedure.

The jury was also instructed,

              Physicians who hold themselves out as specialists
        must use the degree of skill, care and learning ordinarily
        possessed and exercised by specialists in similar
        circumstances, not merely the average skill and care of a
        general practitioner. A violation of this law is negligence.

        When we review the instructions given to the jury to determine

whether the instructions properly state the law, we look to the

instructions to determine if the instructions taken as a whole accurately

reflect the law. Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 902 (Iowa

2015); State v. Pelelo, 247 N.W.2d 221, 225 (Iowa 1976) (en banc). Here,

the instructions given require Khanna to exercise the same “degree of
                                    37

skill, care and learning ordinarily possessed and exercised by specialists

in similar circumstances.” The failure to do so is negligence.

      Thus the court instructed the jury to consider Khanna’s training

and experience when considering each specification of negligence.       In

doing so, the jury could use Khanna’s lack of training or experience to

help it decide if he was negligent as to any one of the specifications of

negligence the court submitted to the jury. However, even if Khanna was

unqualified to perform the Bentall procedure, as long as he did not

actually breach the standard of care of a qualified cardiovascular

surgeon performing such a procedure, there is no claim for negligent

performance of the operation. This is what the jury found, regardless of

his training or experience. In other words, a jury could not find a person

posing as a physician negligent as long as that person did not actually

breach the standard of care of a qualified cardiovascular surgeon

performing such a procedure.

      Therefore, the instructions as given incorporate Andersen’s claim

regarding Khanna’s lack of experience or training and the jury’s verdict

factually found he was not negligent in the performance of the Bentall

procedure regardless of his lack of training or experience. Accordingly,

the district court did not err in refusing to give Andersen’s requested

instruction.

      VIII. Disposition.

      We vacate the decision of the court of appeals.       We affirm the

judgment of the district court as to Andersen’s specific negligence claims.

We reverse the judgment of the district court removing Andersen’s

informed-consent claims from the case. Accordingly, we remand the case

to the district court to allow Andersen to proceed on his two informed-

consent claims consistent with this opinion.
                                   38

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRRMED IN PART, REVERSED IN PART, AND

CASE REMANDED.

      All justices concur except Waterman, J., Cady, C.J., and

Mansfield, J., who concur in part and dissent in part.
                                      39
                                             #14–1682, Andersen v. Khanna

WATERMAN, Justice (concurring in part and dissenting in part).

      I respectfully dissent from parts IV and VI of the majority opinion.

I would affirm the district court’s summary judgment dismissing the

informed-consent claim based on Dr. Khanna’s failure to disclose his

lack of experience with the Bentall heart procedure. Informed consent is

not an open-ended, unlimited theory of liability. Rather, if a physician

fails to disclose a known material risk and the risk occurs, the patient
can recover for the harm resulting from the risk. But if the physician

fails to disclose a risk that never materializes, the patient cannot recover

for this nonevent. For example, failure to disclose the possible need for a

blood transfusion before a hip replacement surgery does not result in

liability if the patient did not need a transfusion.

      Alan Andersen’s theory is that he should have been told about

Dr. Khanna’s lack of experience because an inexperienced physician is

more likely to make mistakes. That risk never materialized. The jury

verdict establishes that Dr. Khanna met the standard of care for this

surgery. Thus, even if the number of prior surgeries was something that

needed to be disclosed as part of the informed-consent process, the jury

verdict precludes recovery on the informed-consent theory. In any event,

as most courts recognize, physicians owe no duty under informed-

consent statutes to disclose their experiences with particular procedures.

     I. The Jury Verdict of No Negligence Precludes Recovery for
Nondisclosure of Dr. Khanna’s Inexperience.

      Andersen’s informed-consent claim fails even if we assume

Dr. Khanna was required to disclose his inexperience with the Bentall

procedure. It is well-settled that the plaintiff in a medical malpractice

informed-consent case cannot recover unless the risk that the physician
                                    40

failed to disclose in fact materialized and caused harm to the patient.

The seminal case is Canterbury v. Spence, which adopted this

commonsense holding:

             No more than breach of any other legal duty does
      nonfulfillment of the physician’s obligation to disclose alone
      establish liability to the patient. An unrevealed risk that
      should have been made known must materialize, for
      otherwise the omission, however unpardonable, is legally
      without consequence.       Occurrence of the risk must be
      harmful to the patient, for negligence unrelated to injury is
      nonactionable. And, as in malpractice actions generally,
      there must be a causal relationship between the physician’s
      failure to adequately divulge and damage to the patient.

464 F.2d 772, 790 (D.C. Cir. 1972) (footnotes omitted).

      The majority today acknowledges that Canterbury is a “landmark

informed-consent case” and quotes the requirement that the unrevealed

risk must materialize and harm the patient.       Yet the majority fails to

apply this rule and, instead, conflates it with a separate rule that the

patient need not prove the physician negligently performed the surgery to

recover under an informed-consent theory. A surgeon who competently

performs a procedure may still be liable to the patient under an

informed-consent theory, but only if a known risk the surgeon failed to

disclose in fact occurs and harms the patient.

      State supreme courts began adopting the requirement that the

undisclosed risk materialize decades ago.

            [A breach of] the physician’s obligation to disclose the
      material risks incidental to a particular treatment . . . does
      not per se establish liability to the patient. As in the case of
      any breach of a legal duty, the plaintiff must . . . prove a
      proximate causal relationship between the physician’s failure
      to adequately inform and injury to the patient.
              Proof of proximate cause in such cases requires,
      initially, a showing that the unrevealed risk which should
      have been made known has materialized. Absent occurrence
                                          41
       of the undisclosed risk, the doctor’s omission is legally
       inconsequential.

Downer v. Veilleux, 322 A.2d 82, 92 (Me. 1974).

       “The view espoused by the courts in Canterbury and Downer has

been uniformly accepted by the high courts of numerous other

jurisdictions.” Cochran v. Wyeth, Inc., 3 A.3d 673, 680 (Pa. Super. Ct.

2010) (collecting cases). Indeed, “[i]n informed consent cases, it appears

to be well-settled and without debate that the non-disclosed risk must

manifest itself into actual injury in order for a plaintiff to establish
proximate causation.”          Id.; see also Wachter v. United States, 689

F. Supp. 1420, 1422 (D. Md. 1988) (applying Maryland law, which

requires plaintiff to show that the undisclosed risk materialized and

caused injuries); Hales v. Pittman, 576 P.2d 493, 499 (Ariz. 1978) (en

banc) (“The failure of a physician to disclose a known risk does not,

standing        alone,   constitute   sufficient   grounds   for   a   malpractice

action. . . .     Because the anesthesia dolorosa did not occur in [the

patient, the physician’s] failure to disclose its possibility is not actionable

under a malpractice theory.”); Davis v. Kraff, 937 N.E.2d 306, 316–17 (Ill.

App. Ct. 2010) (rejecting plaintiff’s argument “that she was not required

to show that the undisclosed risk ever materialized”); LaCaze v. Collier,

434 So. 2d 1039, 1048 (La. 1983) (“[T]he plaintiff [must] show that the

undisclosed risk actually occurred.”); Aceto v. Dougherty, 615 N.E.2d

188, 192 (Mass. 1993) (“[I]n order to recover for a physician’s failure to

obtain informed consent, the plaintiff must show not only that the

physician failed to disclose material information to the patient, but also

that the physician’s failure in this regard is causally related to the

patient’s injury.”); Reinhardt v. Colton, 337 N.W.2d 88, 95–96 (Minn.

1983) (en banc) (requiring plaintiff to show that the undisclosed risk
                                          42

materialized in harm); Smith v. Cotter, 810 P.2d 1204, 1209 (Nev. 1991)

(per curiam) (“To establish proximate cause, first there must be a

showing that the unrevealed risk which should have been revealed by the

doctor actually materialized.”); Howard v. Univ. of Med. & Dentistry of

N.J., 800 A.2d 73, 79–80 (N.J. 2002) (requiring proof the “undisclosed

risk occurred and harmed the plaintiff” (emphasis omitted) (quoting

Teilhaber v. Greene, 727 A.2d 518, 524 (N.J. Super. Ct. App. Div. 1999)));

White v. Leimbach, 959 N.E.2d 1033, 1035 (Ohio 2011) (“[A] patient bears

the burden to present expert medical testimony . . . showing that one or

more    of   those    undisclosed     risks    and    dangers     materialized     and

proximately caused injury.”); Scott v. Bradford, 606 P.2d 554, 559 (Okla.

1979) (“The risk must actually materialize and plaintiff must have been

injured as a result of submitting to the treatment. Absent occurrence of

the undisclosed risk, a physician’s failure to reveal its possibility is not

actionable.”); Hook v. Rothstein, 316 S.E.2d 690, 704 (S.C. Ct. App. 1984)

(“It is for the plaintiff to show that the undisclosed risk materialized and

caused him or her injury . . . .”).

       We    expressly     recognized      the    requirement      that    “the    risk

materialize[]” to recover under an informed-consent theory in Plowman v.

Fort Madison Community Hospital, 896 N.W.2d 393, 403–04 (Iowa 2017)

(quoting Canesi ex rel. Canesi v. Wilson, 730 A.2d 805, 813 (N.J. 1999)). 6

We compared informed-consent and wrongful-birth actions. Id. at 403.

We allowed the parents’ wrongful-birth action to proceed against medical

defendants who failed to disclose the risk revealed on a fetal ultrasound

that the child would be born with severe impairments. Id. at 395–96,


       6Plowman   was legislatively abrogated on other grounds this year. See S.F. 2418,
87th G.A., 2d Sess. § 118 (Iowa 2018) (2018 Iowa Legis. Serv. S.F. 2418 (West 2018)) (to
be codified at Iowa Code § 613.15B).
                                     43

410.    The Plowmans would have had no right of recovery for that

nondisclosure if the child had been born healthy—that is, if the

undisclosed risk of birth defects never materialized.        See id. at 399

(reiterating that no recovery is allowed for birth of healthy child).

       An illustrative case for this governing rule is K.A.C. v. Benson, in

which the Minnesota Supreme Court held that the “plaintiff must

demonstrate that a reasonable person knowing of the risk would not

have consented to treatment, and that the undisclosed risk actually

materialized in harm.”    527 N.W.2d 553, 561 (Minn. 1995) (emphasis

added).   In K.A.C., the defendant-doctor was infected with the human

immunodeficiency virus (HIV) and suffered from open sores on his hands

and forearms.     Id. at 555.   While infected, the doctor performed two

gynecological procedures on the plaintiff. Id. The plaintiff and 335 other

patients potentially exposed to the AIDS virus were advised to undergo

testing; all who did so, including the plaintiff, tested negative for the HIV

antibody. Id. at 557. The Minnesota Supreme Court affirmed summary

judgment for the medical defendant because “the undisclosed, minuscule

‘risk’ of HIV exposure did not materialize in harm to [the] plaintiff

because [she] tested negative for the HIV antibody.”           Id. at 561–62

(emphasis added).        Similarly, here, the risks of mistakes from

inexperience never materialized, precluding recovery under an informed-

consent theory.

       We have never upheld a recovery under an informed-consent

theory when the undisclosed risk did not occur and cause harm to the

patient. The risk presented by Dr. Khanna’s inexperience was that he

might fall below the standard of care performing the surgery. The jury,

which the majority acknowledges was instructed properly, found

Dr. Khanna not negligent. This verdict establishes that the undisclosed
                                      44

risk of mistakes due to inexperience in fact never materialized.            The

verdict is the death knell for Andersen’s informed-consent claim.           The

majority errs by holding otherwise.

      II. Dr. Khanna Owed No Duty to Disclose His Inexperience
with the Specific Procedure.

      There is a second, independent reason why Andersen’s informed-

consent claim was properly taken from the jury.             The district court

correctly ruled that Dr. Khanna had no duty to disclose that he had

never previously performed the Bentall procedure.            Dr. Khanna is a

board-certified cardiothoracic surgeon who has performed numerous

heart surgeries.   One can often define a medical procedure narrowly

enough to say that this particular procedure has not been done by this

particular physician.

      The   majority    creates   a   new,   ill-defined   duty   to   volunteer

information regarding the physician’s experience. I would not go there.

The legislature detailed the disclosure requirements for informed consent

in Iowa Code section 147.137 (2018). Section 147.137 provides,

            A consent in writing to any medical or surgical
      procedure or course of procedures in patient care which
      meets the requirements of this section shall create a
      presumption that informed consent was given. A consent in
      writing meets the requirements of this section if it:
            1. Sets forth in general terms the nature and purpose
      of the procedure or procedures, together with the known
      risks, if any, of death, brain damage, quadriplegia,
      paraplegia, the loss or loss of function of any organ or limb,
      or disfiguring scars associated with such procedure or
      procedures, with the probability of each such risk if
      reasonably determinable.

Iowa Code § 147.137. In Pauscher v. Iowa Methodist Medical Center, we

described section 147.137 as “[t]he most definitive statement of public

policy” on informed consent and as “a plain statement of the [disclosure]
                                    45

requirements.” 408 N.W.2d 355, 360–61 (Iowa 1987). The statute does

not require disclosure of physician-specific information such as the

doctor’s success rate or number of times he or she has performed the

procedure. I would not add disclosure requirements that the legislature

chose to omit.

      In Doe v. Johnston, we said that “truly informed consent must be

based on knowledge of reasonably available treatment alternatives.” 476

N.W.2d 28, 31 (Iowa 1991). The plaintiff contracted “the dread disease

AIDS” from a blood transfusion during hip replacement surgery. Id. at

30. The fighting issue at trial was whether the surgeon “breached the

standard of medical care by failing to warn Doe of the risk of acquiring

AIDS through a blood transfusion or . . . [by] failing to advise him of the

possibility of self-donating the necessary units of blood.” Id. The jury

found the surgeon not negligent, and we affirmed the trial court’s denial

of Doe’s motion for a directed verdict or JNOV because he failed to prove

such disclosures were required as a matter of law. Id. at 31–32. We did

not mention section 147.137, but the availability of ways to reduce the

risk of the hip replacement surgery by securing safer blood for

transfusion fits comfortably within the statutorily required disclosure of

the “known risks . . . of the procedures.”     That is different from the

physician’s personal experience.

      We have never previously held the physician must disclose his or

her personal experience or lack thereof in an informed-consent case.

Most courts reject such a requirement.         See, e.g., Duffy v. Flagg,

905 A.2d 15, 20–21 (Conn. 2006) (rejecting argument that a physician’s

prior experience with vaginal birth after cesarean section was relevant to

an informed-consent claim because the only required disclosures are the

nature of the procedure, its risks and anticipated benefits, and
                                      46

alternatives to the procedure); Ditto v. McCurdy, 947 P.2d 952, 958 (Haw.

1997) (“declin[ing] to hold that a physician has a duty to affirmatively

disclose his or her qualifications or the lack thereof to a patient” and

noting that “this is a matter best left to the legislature, and . . . the board

of medical examiners”); Wlosinski v. Cohn, 713 N.W.2d 16, 20 (Mich. Ct.

App. 2005) (“As a matter of law, we hold that a physician’s raw success

rates do not constitute risk information reasonably related to a patient’s

medical procedure” that a physician must disclose to a patient.); Abram

v. Children’s Hosp. of Buffalo, 542 N.Y.S.2d 418, 419 (App. Div. 1989)

(noting that the cause of action for lack of informed consent has been

statutorily defined and concluding it does not “require disclosure of

qualifications of personnel providing . . . treatment”); Foard v. Jarman,

387 S.E.2d 162, 167 (N.C. 1990) (acknowledging that “[t]he statute

imposes no affirmative duty on the health care provider to discuss his or

her experience” and declining to impose such a duty); Duttry v. Patterson,

771 A.2d 1255, 1259 (Pa. 2001) (“[W]e hold that information personal to

the physician, whether solicited by the patient or not, is irrelevant to the

doctrine of informed consent.”). I would follow this well-developed body

of precedent.

      The majority instead relies on Johnson ex rel. Adler v. Kokemoor,

545 N.W.2d 495 (Wis. 1996), which is readily distinguishable. That court

affirmed evidentiary rulings allowing evidence of the surgeon’s lack of

experience with the specific procedure (which he had never performed

previously) only after he had misled the patient by telling her falsely that

he had performed the surgery she required dozens of times. Id. at 499.

      Regardless, today’s decision should be limited to its facts—

requiring disclosure of the physician’s inexperience only when the

procedure is extraordinarily complicated and the physician has never
                                          47

performed it. 7 The problem will be drawing the line on when and what

physicians now must disclose about their personal experience.                         Is

disclosure required if the physician has only performed the procedure

twice previously? Ten times? Is the physician required to disclose that

other specialists in his or her group have greater experience?                    What

about similar procedures?            Do the outcomes matter?             What if the

outcomes depend on variables unrelated to surgical skill, such as the age

or health of the other patients? Who decides what must be disclosed?

Today’s decision raises many more questions than it answers.                        See

Jennifer Wolfberg, Comment, Two Kinds of Statistics, the Kind You Look

Up and the Kind You Make Up: A Critical Analysis of Comparative Provider

Statistics and the Doctrine of Informed Consent, 29 Pepp. L. Rev. 585, 596

(2002) (criticizing Kokemoor for raising “[c]ountless questions”).

       And how would the physician disclose to a new patient the

outcomes of his or her other patients’ surgeries without violating statutes

requiring confidentiality?        See Iowa Code § 622.10 (physician–patient

privilege); Willard v. State, 893 N.W.2d 52, 63–64 (Iowa 2017) (holding

patient safety net records were nondiscoverable and inadmissible under

the morbidity and mortality privilege codified in Iowa Code §§ 135.40–

.42); Carolan v. Hill, 553 N.W.2d 882, 886–87 (Iowa 1996) (discussing

broad peer review privilege in Iowa Code section 147.135(2)); see also 45

C.F.R. § 164.502 (2013) (Health Insurance Portability and Accountability

Act   of   1996     (HIPAA)     Privacy    Rule     establishing     protections     for

confidentiality of health information).          Will physicians face a Hobson’s




       7The majority notes that “[t]he record reveals a Bentall heart procedure is a very
complicated procedure. The experts characterized a Bentall heart procedure as being
harder to perform than a heart transplant.”
                                     48

choice   between   disclosing   confidential   information   or   risking   an

informed-consent claim for failing to do so?

      I foresee that any patient with a bad outcome will now bring

informed-consent claims that must go to the jury whenever the physician

failed to disclose his or her specific experience and success rate on the

procedure.    This will further increase costs of healthcare burdening

Iowans. The legislature can have the last word and should overrule this

ill-advised decision.

      For these reasons, I respectfully dissent from sections IV and VI of

the majority opinion.

      Cady, C.J., and Mansfield, J., join this concurrence in part and

dissent in part.
