Goetzman v. Wichern

• Decision Date: 22 December 1982
• Docket Number: No. 66832,66832
• Citation: 327 N.W.2d 742
• Parties: Mary E. GOETZMAN, Appellant, v. Homer E. WICHERN, M.D., Appellee.
• Court: Iowa Supreme Court

Page 742

327 N.W.2d 742

Mary E. GOETZMAN, Appellant, v. Homer E. WICHERN, M.D., Appellee.

No. 66832.

Supreme Court of Iowa.

Dec. 22, 1982.

Rehearing Denied Jan. 13, 1983.

David S. Wiggins and Linda Haley of Williams, LaMarca, Marcucci & Wiggins, P.C., West Des Moines, for appellant.

Eugene Davis and Robert C. Rouwenhorst of Davis, Grace, Horvath, Gonnerman & Rouwenhorst, P.C., Des Moines, for appellee.

Considered en banc.

McCORMICK, Justice.

The question here is whether the common law of Iowa should be changed to substitute the doctrine of comparative negligence for the existing doctrine of contributory negligence. In the present case the trial court submitted a contributory negligence defense over an objection by plaintiff in which she advocated the change. We now abandon the doctrine that contributory negligence is a complete bar to recovery. In its place we adopt the doctrine of comparative negligence under which an injured party's recovery is diminished in proportion to that party's contributory negligence, and recovery is not barred unless the injured party's negligence is the sole proximate cause of the damages. We reverse and remand this case.

This is a medical malpractice action. The facts are relevant only in fixing the context for consideration of the legal question. Plaintiff Mary E. Goetzman alleged in her petition that defendant Homer E. Wichern, M.D., was negligent in the diagnosis and treatment of her breast cancer over a period from 1974 to 1978. She alleged his negligence made it necessary for her to have a mastectomy and to undergo radiation therapy and chemotherapy, proximately causing substantial damages for which she asked judgment. Defendant admitted plaintiff was his patient during the period involved but denied the other material allegations of the petition. Shortly before trial he amended his answer to allege generally that plaintiff was barred from recovery because she was guilty of negligence which was a proximate cause of her injuries and damages. At the beginning of trial, defendant amended his answer to specify that plaintiff was negligent in failing to follow his advice and cooperate with his diagnostic and treatment recommendations.

The case was submitted on plaintiff's claim and defendant's defense, and the jury returned a verdict for defendant upon which judgment was entered. This appeal followed. The only question presented is whether Iowa should now abandon the defense of contributory negligence as an absolute bar to recovery in favor of a system of comparative negligence. Plaintiff contends the change should be made as a development of the common law and on constitutional grounds.

No dispute exists that the evidence at trial was sufficient for jury submission of the allegations of the petition and the contributory negligence defense. Controversy does exist, however, concerning whether plaintiff preserved error on her present contentions, whether she was prejudiced by the court's instruction on the contributory negligence defense, whether the doctrine of contributory negligence is statutory in Iowa, whether any change in the law should be made by the legislature, and whether the contributory negligence doctrine is constitutional. We address all of these issues except the constitutional one. In addition, because we adopt the principle of comparative negligence, we decide the form of the system and the cases to which it is applicable.

I. Preservation of error. In its instruction stating the issues, the court characterized the contributory negligence defense by saying:

The defendant doctor asserts additionally the affirmative defense that the plaintiff herself was negligent and that such negligence was a proximate cause of any injury or damage sustained by her and thus under law she may not recover.

The plaintiff denies this claim. The defendant doctor has the burden of proof.

In its instruction on the defense, the court said:

If you find the plaintiff has proved her case against the defendant doctor under the prior instruction you should consider the defendant's affirmative defense.

The law of Iowa provides that in such a situation if the plaintiff was also negligent and if such negligence of the plaintiff was also a proximate cause of any injury or damage, then the plaintiff may not recover.

The defendant doctor relies on this law in this case. The defendant has the burden of proof.

To establish it the defendant must prove each and all of the following propositions:

A. That the plaintiff was herself negligent. The defendant claims that the plaintiff was negligent in failing to undergo biopsy and possible further surgery at the time recommended by the defendant doctor.

B. That such negligence was a proximate cause of any injury and damage to the plaintiff.

If the defendant doctor has proved both the above propositions then your verdict should be for him and against the plaintiff as to all, or that part of any damage suffered by the plaintiff, which in whole or in part was proximately caused by the plaintiff's own negligence.

If the defendant doctor has failed to prove both the above propositions then this affirmative defense has not been established.

Plaintiff's counsel made a timely objection to the relevant paragraph of the statement of issues by alleging "the defense of contributory negligence is not a proper defense in that the proper defense would be comparative negligence ...." He proceeded to add a detailed objection based on the alleged unconstitutionality of the contributory negligence defense, alleging that equal protection and due process are denied by making comparative negligence applicable in common carrier and employer-employee cases but not in other cases such as the one on trial. He objected to the instruction on contributory negligence on the same grounds "as to the constitutional questions and as to the misstatement of the law."

In determining the sufficiency of an objection to preserve error, "the test is whether the exception taken alerted the trial court to the error which is urged on appeal." Dutcher v. Lewis, 221 N.W.2d 755, 759 (Iowa 1974). The purpose is "to afford the trial judge an opportunity to catch exactly what is in counsel's mind and thereby determine whether the objection possesses merit to an extent the instruction should be recast." State v. Baskin, 220 N.W.2d 882, 886 (Iowa 1974). The issues presented by plaintiff on appeal are the same as those presented in her trial court objection. She contends the doctrine of comparative negligence should be substituted for the absolute defense of contributory negligence, and she separately repeats her constitutional challenge. Any doubt that plaintiff was advocating a change in the law in the trial court was removed by the joinder of her common law ground with her constitutional ground.

Moreover, the objection was not made in a vacuum. The question whether Iowa should adopt the doctrine of comparative negligence was addressed in two cases decided by this court in the two years before the present case was tried. See Fuller v. Buhrow, 292 N.W.2d 672 (Iowa 1980); Stewart v. Madison, 278 N.W.2d 284 (Iowa 1979). Because the question was not settled by those decisions, it is reasonable to believe the bench and bar were aware the question was still viable when the present case was tried. In these circumstances it is unlikely a trial court would not know what a lawyer meant in advocating substitution of comparative negligence for contributory negligence as a statement of the "proper" law.

Defendant argues the objection was insufficient because it did not point out a specific deficiency in the language of the court's instructions and because plaintiff did not offer a substitute instruction setting forth plaintiff's theory of comparative negligence. Plaintiff's attack, however, was not on particular language in the court's instructions but on the principle of contributory negligence incorporated in them. The attack was thus on all of the language outlining the contributory negligence defense in the two instructions involved. When an instruction concerns a feature of the case on which the court has a duty to instruct without a request, it is sufficient to allege the ground of error without offering a substitute instruction. It is only "when the issue is not integral to the case or when an instruction on an integral issue is correct as proposed but is not as explicit as a party desires" that the objecting party must offer an instruction. State v. Templeton, 258 N.W.2d 380, 382 (Iowa 1977). The contributory negligence defense was clearly integral to the present case.

Furthermore, plaintiff's failure to offer a substitute instruction should not have been a factor in the court's ruling on the objection. The question raised by the objection was whether contributory negligence should be abandoned in favor of some form of comparative negligence. It did not raise the next question which is what form the new system should take. The objection was obviously made with little realistic hope that the trial court would refuse to follow this court's precedents dictating an adverse response on the first question. See Kersten Co. v. Department of Social Services, 207 N.W.2d 117, 121-22 (Iowa 1973). Because the trial court gave a negative answer to the first question, it had no occasion to be concerned about plaintiff's view on the second question. Plaintiff's failure to suggest a specific answer to the second question thus did not affect the sufficiency of her objection to raise the first one.

We hold that plaintiff's objection was sufficient to preserve the issue for review.

II. Existence of prejudice. Defendant contends plaintiff was not prejudiced by the court's ruling on her objections to the instructions because the instruction on the contributory negligence defense was actually a comparative negligence instruction. Thus, according to defendant, plaintiff actually received what she was...