In the Iowa Supreme Court
No. 22–2048
Submitted December 18, 2024—Filed May 30, 2025
Fatima E. Belhak and Abdellatif Elfila,
Appellees,
vs.
Denice Smith and Women’s Care Specialists, P.C.,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert,
judge.
Plaintiffs seek further review of a court of appeals decision that reversed a
jury verdict in their favor in a medical malpractice action. Decision of Court of
Appeals Vacated; District Court Judgment Affirmed.
McDermott, J., delivered the opinion of the court, in which all participating
justices joined. Waterman, J., took no part in the consideration or decision of
the case.
Troy L. Booher (argued) and Beth E. Kennedy (until withdrawal) of
Zimmerman Booher, Salt Lake City, Utah, and Nancy J. Penner of Shuttleworth
& Ingersoll, P.C., Cedar Rapids, for appellants.
Anthony J. Bribriesco (argued) and William J. Bribriesco of Bribriesco Law
Firm, PLLC, Bettendorf, for appellees. 2
McDermott, Justice.
When complications arose during the birth of Fatima Belhak’s child, the
attending physician, Dr. Denice Smith, made an incision to expand the birth
canal to complete the child’s delivery. Afterward, Smith used sutures to repair
the incision. But Belhak soon began experiencing pain and a variety of problems
at the wound site, and a few days later, a different physician informed Belhak
that what had been diagnosed and treated as a second-degree laceration was a
fourth-degree laceration, and that it had become infected. Because of the
infection, Belhak had to wait five months to have reconstructive surgery.
Belhak and her husband sued Smith and her employer, Women’s Care
Specialists, P.C., under several negligence theories. The case went to trial, and
the jury ruled in favor of Belhak. On appeal, the court of appeals reversed the
judgment, holding that there was insufficient evidence to submit one of the
negligence claims to the jury. Belhak sought further review, which we granted.
I. Factual and Procedural Background.
In 2014, Fatima Belhak and her husband were expecting their first child.
When Belhak went into labor, she and her husband went to Trinity Medical
Center in Bettendorf, where Belhak had been seeing an obstetrician named
Dr. Mona Alqulali. But because Alqulali was unavailable, another obstetrician,
Dr. Denice Smith, stepped in.
Complications arose during the delivery. Smith eventually determined that
she needed to perform an episiotomy to expand the birth canal. An episiotomy is
a procedure in which a small pair of scissors is used to make an incision from
the vagina into the perineum, referring to the area between the vagina and anus.
Soon after performing the episiotomy, Smith was able to deliver Belhak’s baby.
After the delivery, Smith concluded that the episiotomy resulted in a 3
second-degree laceration. She used synthetic surgical sutures with a tensile
strength labeled “4-0” to repair the incision.
While she was still in the hospital, Belhak began to have pain in her
rectum and noticed stool and blood on her postpartum pad. She reported this to
her nurse, who then examined her. Belhak was told that nothing was out of the
ordinary, and she was given an ice pack and additional medicine for the pain.
Belhak went home after two days in the hospital.
Shortly after her discharge, Belhak observed stool coming out of her
vagina. She and her husband called the hospital to report the issue. Smith told
her to come to the clinic the next day, but Belhak instead went to the emergency
room at a different hospital. The emergency room doctors sent her to the
University of Iowa Hospitals and Clinics in Iowa City. The University’s doctors
diagnosed Belhak with a fourth-degree laceration and a rectovaginal fistula—a
hole between the rectum and vagina that allowed for stool and gas to pass
through her vagina. Belhak had also developed an infection, which is a common
symptom when a rectovaginal fistula is not promptly treated. Because she had
an infection, Belhak needed to wait for it to clear before undergoing
reconstructive surgery to repair the fistula.
The infection took five months to clear. In those five months, Belhak had
to take thirty-minute sitz baths every time she used the bathroom to disinfect
the wound. The physical pain made it more difficult to walk, care for her newborn
child, lift heavy objects, and sit or sleep in certain positions. Smith’s social life
diminished as she couldn’t control her bowels because of the fistula. She also
began to restrict her diet to avoid diarrhea, which she couldn’t easily control.
Some of Belhak’s symptoms did not improve immediately after the surgery.
At times, she had embarrassing uncontrolled gas, making her not want to leave 4
the house. She began physical therapy, but her pelvic pain wouldn’t go away.
Belhak’s fear of reopening the wound changed her sexual relationship with her
husband. Her doctors tried a variety of medications but eventually turned to
nerve blockers that needed to be injected into her vagina.
Belhak and her husband ultimately sued Smith and her employer for
negligence and loss of consortium. The parties presented evidence and argument
in a seven-day jury trial. Their respective theories of the case were relatively
straightforward. Belhak asserted that her injuries were caused when Smith
either (1) failed to perform a rectal examination after the episiotomy, (2) failed to
diagnose her with a fourth-degree laceration, or (3) used too small a suture on
the laceration. Smith’s theory was that the episiotomy itself resulted in only a
second-degree laceration but that the laceration expanded after Belhak left the
hospital from some strain on her rectum. Before trial, Smith suggested that the
strain on Belhak’s rectum could have resulted from either a difficult bowel
movement or anal intercourse, but the district court granted a pretrial motion in
limine preventing evidence or argument about the anal intercourse theory.
At the end of Belhak’s case, Smith moved for a directed verdict, arguing
that Belhak’s medical expert, Dr. Gregory Chen, failed to establish a causal link
between Smith’s conduct and Belhak’s harm. The court denied the motion.
Because the witnesses were called out of order, Smith had already presented all
her evidence before making this motion, so both parties rested.
After Belhak’s closing argument, Smith moved for a mistrial. Smith argued
that a mistrial was required because during closing argument Belhak’s lawyer
(1) accused Smith’s lawyer of “character assassination,” (2) vouched for his
clients by telling the jury they had to hold Smith accountable, (3) made a “golden
rule argument,” and (4) misstated the record. The district court took the motion 5
under advisement but gave the jury a limiting instruction as to the mention of
anal intercourse during Belhak’s closing. The jury entered a verdict finding
Smith liable and awarded Belhak $3.25 million in damages.
Smith moved for a new trial under Iowa Rule of Civil Procedure 1.1004
(2022). She argued that the district court erred in not granting her earlier motion
for directed verdict and that she was entitled to a new trial based on (1) improper
conduct by Belhak’s lawyer during closing argument, (2) improper questioning
of witnesses during trial, (3) improper communication by Smith’s own expert
witness, Dr. Larry Severidt, with a juror during a recess, and (4) insufficient
evidence to submit to the jury the specifications of negligence on both the rectal
examination and the use of 4-0 sutures. The district court denied the motion for
new trial.
Smith appealed, and we transferred the case to the court of appeals. The
court of appeals reversed, concluding that the district court erred in submitting
the 4-0 suture specification of negligence to the jury. Belhak applied for further
review, which we granted.
II. Analysis.
Smith’s arguments on appeal fall into two broad categories: (1) that the
district court erred in failing to grant a new trial based on misconduct by
Belhak’s lawyer during the trial, and (2) that the district court erred in denying
her motion for directed verdict concerning the use of 4-0 sutures.
A. Trial Misconduct Arguments. Smith argues that Belhak’s lawyer
engaged in misconduct both during his examination of witnesses and in his
closing argument, and that the misconduct, both individually and cumulatively,
warrants a new trial. Denial of a motion for mistrial is reviewed for an abuse of
discretion. Kinseth v. Weil-McLain, 913 N.W.2d 55, 66 (Iowa 2018). We have said 6
before that both alleged instances of misconduct that Smith raises are reviewed
for abuse-of-discretion. See, e.g., Giltner v. Stark, 219 N.W.2d 700, 706
(Iowa 1974) (examination of witnesses); Olson v. BNSF Ry., 999 N.W.2d 289, 300
(Iowa 2023) (closing argument misconduct).
Under an abuse-of-discretion standard, “the district court may choose one
among many acceptable alternatives, so long as its choices are not clearly
untenable or unreasonable.” State v. Tucker, 982 N.W.2d 645, 657 (Iowa 2022).
In applying this standard, “we give a great deal of leeway to the trial judge who
must make [a] judgment call.” State v. Newell, 710 N.W.2d 6, 20–21 (Iowa 2006).
The notion of abused discretion “only makes sense . . . if it is assumed that an
official or judge has considerable decisional freedom, or leeway, short of abuse.”
Frederick Schauer, Thinking Like a Lawyer 191 n.6 (2009).
1. Objections to questions. On the improper questioning claim, Smith
argues that she was prejudiced by having to make fifty-six sustained objections
to improper questioning during the seven-day trial. Belhak argues that Smith’s
objections were mostly to the form of the question and not to its substance, and
she suggests that the objections were part of a strategy to develop grounds for
mistrial. The district court rejected Smith’s argument that the number of
sustained objections to questions warranted a mistrial.
Smith points to our holding in Brooks v. Gilbert, 98 N.W.2d 309
(Iowa 1959), in support of her argument. In Brooks, the family of a six-year-old
girl who had been struck by a car in a hit-and-run sued the suspected driver. Id.
at 310. The plaintiff’s lawyer attempted to use photos of the street to establish
where on the street the car had struck the girl. Id. at 311. But instead of calling
actual eyewitnesses, the family’s lawyer called the police officer who had
interviewed the eyewitnesses. Id. After showing the officer one of the photos, the 7
family’s lawyer would ask, “Where did you establish that point of impact?” Id.
The question drew a sustained hearsay objection from the defendant. Id.
Apparently undeterred, the family’s lawyer asked the same question, or a
variation of it, thirteen times. Id. at 311–12. The district court sustained every
hearsay objection to the question. Id. On appeal, we held that the lawyer’s
repeated question to the officer prejudiced the defendant, reasoning that
“although objections were sustained, [the result] was to indelibly fix in the minds
of the jurors . . . the point of impact.” Id. at 312.
But the questions in this case are of a different character. Based on our
review, the objections generally addressed problems with the form of the
question—usually a leading question during a direct examination. “This court
has often stated that trial court has considerable discretion in admit[t]ing or
excluding answers to leading questions and there must be a clear abuse of
discretion to justify a reversal.” Giltner, 219 N.W.2d at 706. Unlike in Brooks, the
objectional questions here did not improperly convey or suggest information
about the key factual issue at trial. By our count, of the seventy-seven total
objections lodged by Smith’s attorney, only a few related to the substance of a
question. We thus find no abuse of the district court’s discretion in its ruling on
this point.
2. Closing argument. In her argument about misconduct during closing
argument, Smith argues that Belhak’s counsel (1) improperly appealed to the
jurors’ emotions and (2) misled the jury by misstating the record. We review
whether the district court erred in refusing to grant a new trial based on
misconduct during closing argument under an abuse-of-discretion standard.
a. “Betrayal” and “accountability.” Smith first argues that Belhak’s lawyer
improperly appealed to jurors’ emotions by characterizing Smith’s actions as 8
“betrayal” during closing argument and developing a theme of “accountability”
during closing. The word “betrayal” appeared when Belhak’s lawyer described
how Belhak asked her husband “to buy a mirror, so she could see with her own
eyes, stool coming out, and when she did, she felt betrayed by her doctor who
spoke the same language and who saw her every prenatal visit.” Smith argues
that the word improperly focused the jury’s attention on the moral quality of
Smith’s conduct and not on whether Smith acted negligently. Misconduct may
arise when a lawyer during closing argument employs “overinflammatory means
that go outside the record or threaten to improperly incite the passions of the
jury.” State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006).
In making a motion for mistrial before presenting her own closing
argument, Smith never offered the reference to “betrayal” as a basis for the
motion. The argument first appears in Smith’s posttrial motion. But in ruling on
the posttrial motion, the district court broadly addressed whether counsel’s
statements during closing argument sufficiently prejudiced Smith to warrant a
new trial without mentioning Smith’s “betrayal” argument. Smith never filed a
motion to enlarge the ruling under Iowa Rule of Civil Procedure 1.904 asking the
district court to address this statement. In any event, “[t]o warrant a new trial
based on attorney misconduct, the complained of misconduct ‘must have been
prejudicial to the interest of the complaining party.’ ” Kinseth, 913 N.W.2d at 68
(quoting Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992)).
“[U]nless a different result would have been probable in the absence of
misconduct, a new trial is not warranted.” Loehr v. Mettille, 806 N.W.2d 270, 277
(Iowa 2011). We have noted that trial courts—“[a]s firsthand observers of the
alleged misconduct”—are in the best position to determine whether the alleged
misconduct was prejudicial. Olson, 999 N.W.2d at 300. Based on this record, we 9
find no abuse of discretion in the district court’s refusal to grant a new trial on
b. “Golden rule.” Smith next argues that Belhak’s counsel improperly
advanced a so-called “golden rule” argument when asking the jury to assess
damages. A “golden rule” argument is one that asks the jurors to put themselves
in the victim’s position, State v. Musser, 721 N.W.2d 734, 754 (Iowa 2006), and
“encourages the jury to depart from neutrality and to decide the case on the basis
of personal interest and bias rather than on the evidence,” Ivy v. Sec. Barge Lines,
Inc., 585 F.2d 732, 741 (5th Cir. 1978).
During the challenged portion of the argument, Belhak’s lawyer began by
telling the jury that he was “going to give you guys some tools” and then asked
them to “imagine” a story. He then described a hypothetical conversation
between a “man in a suit” with a briefcase and “Latif [the husband] and Fatima”
about whether, before the baby’s birth, they would have traded the problems
resulting from Smith’s negligence for seven million dollars:
The man sits down. On the kitchen table, he puts a big briefcase, and he opens it up: seven million dollars. . . . And [the man] says,
“Latif, Fatima, this money, it’s yours, but there’s a catch. Tomorrow [the baby] is going to be fine, but Fatima, you are not going to be. You are going to have a cut and ripping and tearing in one of the most sensitive areas of your body, and that’s going to cause you pain. It’s going to cause you discomfort for the rest of your life.” . . . “When you are in the hospital, you are going to have stool pass through your vagina. And when you come home from the hospital, for months, you are going to have the same thing. You’re going to spend 20 to 40 minutes in the bathroom, instead of being able to spend time with your baby, your mom and your husband. You are going to get reconstructive surgery, but because of the muscles atrophying and hardening, when they put it back together, it’s going to be different; not as flexible, and there’s going to be scar tissue, and that scar tissue and that inflexibility, every time you move, you are going to be reminded of it. . . . Your husband, now, of course, he is going to love you no matter what, but sexual 10
intercourse -- intercourse, it’s going to be painful. It’s going to be different.” . . . “Because of the scar tissue and where the tear is, you are going to have uncontrollable gas. If you are out in public, maybe you can try and distract by (indicating), hitting your foot on the ground, but -- and diarrhea and stool, you are going to have very little warning.”
So before the man in the suit and his briefcase goes on and on and on, Latif and Fatima, what will they tell him? They would tell him, “No. Fatima’s health and family is the most important thing there is,” and they would tell him to get out of their house.
We have generally found golden-rule arguments when lawyers have
directly asked jurors to think of themselves in the victim’s position. See, e.g.,
State v. Brown, 856 N.W.2d 685, 688 (Iowa 2014) (“If you can’t look at it through
the eyes of [the victim], I would ask you to look at it through the eyes of when
you were 7. Go back to when you were 7 years-old and something like this
happened to you . . . .” (omission in original)); Russell v. Chi., Rock Island & Pac.
R.R., 86 N.W.2d 843, 848 (Iowa 1957) (“[H]ow much money would you jurors
take to go through life injured as this man is[?]”). The district court, having heard
the story during closing argument, concluded that it did not constitute a
golden-rule argument because it did not suggest that the jurors put themselves
in the plaintiffs’ shoes but instead introduced the concept of damages by
summarizing the pain and suffering that Belhak had testified she endured.
We are less certain on this point, but in any event, we do not believe that
the story was sufficiently prejudicial to warrant a new trial. We note the damages
that the jury awarded were far less than those mentioned in the story. Reading
the closing arguments as a whole, we are not convinced this device was so
compelling as to have caused the jurors to decide the case based on their
emotions rather than the evidence.
As a result, we find no abuse of discretion in the district court’s denial of
the motion for new trial on this issue. 11
c. Hippocratic oath. Smith also argues that Belhak’s attorney misstated the
record to disparage Smith’s expert witness, Severidt, during closing argument.
Belhak’s lawyer cited the testimony of Belhak’s expert, Chen, to argue
prophylactic episiotomies are an outdated practice. Drawing on this, Belhak’s
lawyer argued:
What did Dr. Severidt also tell you? That in 2000 -- that in the United States, you don’t do that. You don’t automatically do an episiotomy because it could bring harm to a woman. So what is the difference between the mothers in the United States and the mothers in Honduras? Well, Dr. Severidt allows his students to go down there to Honduras and do something he knows is wrong in the United States, and you are allowed to question anything else he says.
Belhak’s lawyer later added:
Even though he swore the Hippocratic oath, to do no harm, and he knows not to do episiotomies prophylactically in the United States, he changes his standard of care, and when it’s right and wrong, when he goes to Honduras.
The district court found that these comments were improper, observing
that although a lawyer may question an opposing expert’s credibility, Belhak’s
lawyer went too far by suggesting that Severidt violated the Hippocratic oath and
performed inappropriate procedures. But the district court went on to explain
that counsel did not belabor the point and that the jury heard the trial testimony
from all the medical experts who said that episiotomies remain appropriate
procedures in the United States. The district court further suggested that the
jurors understood the focus of the trial was the diagnosis and repair of Belhak’s
incision, not the propriety of episiotomies in general. The district court ultimately
concluded that the improper statements involving Severidt did not cause the jury
to reach a different verdict than it otherwise would have. 12
Although the comments were improper, we find no abuse of discretion in
the district court’s ruling that the statements did not warrant a new trial. See
Olson, 999 N.W.2d at 299.
d. “Character assassination.” Smith also argues that Belhak’s lawyer
improperly accused Smith’s counsel of “character assassination” during closing
argument. This issue began when, before trial, Belhak filed a motion in limine
seeking to prohibit Smith from introducing any testimony or statements that
Belhak had anal intercourse with her husband before or after the delivery. The
district court granted the motion in limine. But during the trial, Smith’s lawyer
asked Chen—the first witness in the case—about whether anal intercourse could
disrupt the repair of an episiotomy. Chen answered, “Not necessarily.” Smith’s
lawyer then asked, “Well, anal intercourse is awful close to the perineum and
vaginal repair; is that right?” Belhak’s lawyer objected, and the district court
sustained the objection and admonished the jury to disregard the questions.
After Chen’s testimony, Belhak’s lawyer alerted the district court and
Smith’s lawyer that he intended to ask Belhak about anal intercourse since—the
jury having now heard about it from defense counsel’s question—in his view,
“[Y]ou can’t unring the bell.” The district court noted that the jury had already
been admonished to disregard the question but conceded that “[i]t’s your trial
strategy.” During Belhak’s testimony, Belhak’s lawyer asked her whether she
had ever had anal intercourse (to which she answered no) and whether it was
contrary to her religious faith (to which she answered yes).
During closing argument, Belhak’s lawyer returned to the subject, stating:
[A]nd you can talk about the two competing stories; that there was a fourth-degree extension at the time of delivery, which all the doctors know is a known risk, or somehow Fatima had a monster bowel movement once she left the hospital, and it tore her rectum. When you think about it, that’s kind of funny. Do you know what is 13
not funny? When [Smith’s lawyer] accused Latif and Fatima of having anal sex within days of delivering their baby with no proof. That’s not funny. That’s character assassination, running Latif and Fatima’s name through the mud on such an outrageous accusation without any proof.
After Belhak’s lawyer completed his closing argument, Smith moved for a
mistrial based in part on the “character assassination” statement. The district
court took the motion under advisement. But before Smith’s lawyer began his
closing argument, the district court informed the jury that Belhak’s lawyer’s
statement about defense counsel was improper and admonished the jurors to
disregard it.
Belhak’s lawyer argued that he needed to address the anal intercourse
issue after Smith’s lawyer raised the issue in front of the jury. Belhak argued
that the anal intercourse question not only violated the ruling in limine but was
also inflammatory and designed to impugn Belhak’s character. Smith, in
response, noted that defense counsel asked only Chen, and not Belhak, about
anal intercourse and argued it was a proper medical question that did not
implicate Belhak’s character but instead went to the key issue in the case.
The district court agreed with Smith that Belhak’s lawyer’s statement was
improper. After noting that curative instructions are generally considered
sufficient in most cases to allow a jury to reach a verdict without improper
influence, the district court concluded that the curative instructions given during
Chen’s testimony and closing argument sufficiently resolved the risk of the jury’s
improper consideration surrounding it.
We agree that Belhak’s lawyer’s “character assassination” statement was
improper. But this improper statement was quickly followed by the district
court’s admonition to the jury. State v. Christensen, 929 N.W.2d 646, 660
(Iowa 2019) (“[W]e have stated curative instructions are generally sufficient to 14
cure most trial errors.”). We agree with the district court that this statement does
not meet the threshold for granting a new trial. We thus find no abuse of
discretion in the district court’s ruling.
e. The University’s medical records. Smith argues that Belhak’s lawyer
misled the jurors by telling them that the University of Iowa’s medical records
resolved the disputed issue of the timing of Belhak’s injury. The findings from a
University treatment record stated:
1 cm tissue bridge separating the vaginal and rectum with loose approximating sutures. After removal of suture material, a complete fourth-degree perineal laceration was identified extending 2 cm proximal from the posterior fourchette.
Smith complains that Belhak’s lawyer twice stated during closing
argument that in this medical record, the University of Iowa “said” that the
fourth-degree laceration happened “at the time of delivery.” Smith argues that
because the University’s doctors didn’t see Belhak until several days after she’d
been discharged following the child’s birth, the University’s doctors could not
purport to identify the timing of her injury. No University doctor testified at trial
to explain the meaning of this statement in the medical record.
Belhak argues that there was nothing improper about counsel’s
interpretation of the medical record because counsel “is allowed to draw
conclusions and argue permissible inferences that may be reasonably derived
from the evidence.” State v. Shanahan, 712 N.W.2d 121, 139 (Iowa 2006). Belhak
also asserts that because the medical records were admitted into evidence, any
prejudice from his argument would be minimal at best because the jury could
see for itself what the records said.
The district court concluded that it was improper for Belhak’s lawyer to
characterize the University as “saying” that the fourth-degree laceration 15
happened at the time of delivery. But the district court also concluded that the
statement did not prejudice Smith. The district court noted that the jury was
advised that arguments are not evidence. The jury was aware that no witness
from the University came to testify to confirm Belhak’s lawyer’s interpretation.
The district court highlighted that the jury had the record to determine for
itself whether Belhak’s interpretation aligned with what her lawyer said. A
reasonable juror, in the district court’s view, could recognize that the treatment
record was prepared contemporaneously with the treatment and thus days after
Belhak had been discharged after the delivery. Both parties had the opportunity
to present their own arguments about the proper reading of the medical records
in the case. The district court thus concluded that no prejudice resulted from
these statements. We find no abuse of discretion in the district court’s reasoning
or conclusions on this point.
f. Cumulative effect. Smith argues that even if the points of error that she
raises do not individually result in prejudice, the cumulative effect of Belhak’s
lawyer’s misconduct during closing argument pushes it over the prejudice
threshold. We have said that although a single improper statement might not
amount to prejudice, the cumulative effect of several could. Andrews v. Struble,
178 N.W.2d 391, 402 (Iowa 1970).
In Kinseth v. Weil-McLain, we reversed a jury’s verdict based on a lawyer’s
misconduct during closing argument after the lawyer made a series of improper
arguments spanning a wide array of subjects, including comparing the plaintiff’s
request for compensatory damages to a percentage of the amount that the
defendant’s expert billed for his services, asking the jury to consider the amount
of money that the defendant had spent defending the lawsuit, asking the jury to
“send a message” by using compensatory damages to punish the defendant, and 16
asking the jury to consider other instances where the defendant had been sued
for similar conduct. 913 N.W.2d at 70–72.
The conduct in this case, whether viewed individually or cumulatively, is
far less egregious than what we confronted in Kinseth, which involved many
appeals for the jury to decide the case based on considerations untethered to the
evidence. We highlighted in Kinseth, among other statements, the lawyer’s
assertion “that a punitive damages award between $4 million and $20 million ‘is
certainly within the realms of what [the defendant] ha[s] paid in this litigation.’ ”
Id. at 70 (second alteration in original). We concluded that the only purpose of
these types of “jarring” appeals to emotion “is to alert the jury that [the
defendant] has deep pockets and can afford a substantial award.” Id.
In this case, the district court—having considered “the severity and
pervasiveness of the misconduct, the strength of the evidence, the significance
of the misconduct to the central issues, the use of curative instructions[,] and
the extent to which the defense invited the misconduct”—determined that the
cumulative effect did not warrant a new trial. The district court concluded that
none of the alleged misconduct impeded the jury’s ability to make a fair
determination based on the evidence about the central question in the case:
whether Belhak sustained a fourth-degree laceration during the birthing
process, and not at some later point, such that Smith necessarily failed to
properly diagnose and suture the injury after the birth. On this point, once again,
we review for an abuse of discretion. See State v. Burkett, 357 N.W.2d 632, 638
(Iowa 1984). We agree with the district court that any prejudice to the defendants
from these objectionable statements cumulatively falls below the threshold for
granting a new trial. See Mays, 490 N.W.2d at 803. 17
B. Motion for Directed Verdict Concerning the Use of 4-0 Sutures.
Smith moved for a directed verdict during trial, and later filed a motion for a new
trial, arguing that there was insufficient evidence to submit to the jury that
Smith was negligent by using 4-0 sutures to repair the episiotomy. “Our review
of a district court’s ruling on a motion for new trial depends on the grounds
raised in the motion.” Bryant v. Parr, 872 N.W.2d 366, 375 (Iowa 2015). The
grounds that Smith identifies on appeal center on evidentiary rulings, and
evidentiary rulings are generally reviewed under an abuse-of-discretion
standard. State v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017).
The jury returned a general verdict, meaning that it found in favor of the
plaintiffs without resolving specific fact questions about the basis for its verdict.
As a result, the jury’s verdict could have been grounded on one of several acts of
negligence. “A new trial is required,” we have said, “if the evidence was
insufficient to submit one of several specifications of negligence.” Alcala v.
Marriott Int’l, Inc., 880 N.W.2d 699, 710 (Iowa 2016). Smith thus would be
entitled to a new trial if any of the three negligence allegations lacked sufficient
evidence to go to the jury. Smith thus would be entitled to a new trial if there
was insufficient evidence to submit to the jury on any one of the three negligence
specifications. Here, Smith argues there was insufficiency only as to the third
specification: that Belhak failed to offer evidence that Smith’s use of the 4-0
sutures caused the harm.
“Where a defendant’s challenge is to the sufficiency of the evidence, we will
affirm the trial court’s denial of the defendant’s motion for directed verdict if the
plaintiff’s claims are supported by substantial evidence.” Boham v. City of Sioux
City, 567 N.W.2d 431, 435 (Iowa 1997). “Evidence is substantial when
reasonable minds would accept the evidence as adequate to reach the same 18
findings.” Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 790 (Iowa 2009). This
doesn’t mean the evidence must be “conclusive” but rather simply “more
probable than any other hypothesis based on such evidence.” Id. at 793 (quoting
Ramberg v. Morgan, 218 N.W. 492, 497 (Iowa 1928)).
A medical negligence claim requires a plaintiff to prove the applicable
standard of care, a violation of that standard, a causal connection between the
defendant’s violation and the plaintiff’s injury, and damages. See Susie v. Fam.
Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 337 (Iowa 2020). As to
causation specifically, the plaintiff must show that the defendant’s conduct
“more likely than not” caused the plaintiff’s harm. Id. Iowa law requires an expert
witness to establish causation if it “is not within the knowledge and experience
of an ordinary layperson.” Doe, 766 N.W.2d at 793. It’s undisputed that an expert
was required to prove the medical negligence alleged in this case.
Several witnesses at trial testified about the different types of sutures used
to repair lacerations. Chen explained the different calibers of sutures, ranging
from the largest and strongest—numerically referred to as “0-0”—to the smallest
and weakest—numerically referred to as “4-0.”
Smith admitted that although she had only received training on the 4-0
sutures and that she wouldn’t have been able to repair a wound that required a
stronger suture, Belhak’s wound did not require a stronger suture. The experts
clashed on this point: Chen testified that the standard of care for an episiotomy
requires sutures with a tensile strength of 2-0 or 3-0, while Severidt testified that
Smith’s use of the 4-0 sutures in this case complied with the standard of care.
Smith argues that Belhak’s negligence claim involving the 4-0 sutures
relies on Chen’s interpretation of the University’s medical record and the record’s
statement that the “vaginal repair site appears broken down.” Smith argues that 19
Chen admitted that he could not tell whether this meant that the sutures had
broken or whether the laceration had expanded beyond what Smith had sutured.
According to Smith, this means that Belhak presented no evidence that the 4-0
sutures failed or that such a failure caused Belhak’s injury. As a result, Smith
argues, the district court erred in denying her motion for directed verdict and
her posttrial motion for new trial.
Expert testimony that is merely speculative is insufficient to establish
causation. In Susie v. Family Health Care of Siouxland, P.L.C., a plaintiff alleged
medical negligence based on the defendant’s delay in administering an antibiotic
and asserted that this delay ultimately caused the defendant to have his arm
amputated. 942 N.W.2d at 337. In our review of the testimony on causation, we
concluded that the plaintiff’s expert “provide[d] no guidance for the jury on how
or if [the plaintiff’s] outcome would have been different if antibiotics were
administered one day earlier.” Id. at 338. We stated that “[w]hile an expert is not
required to express an opinion with absolute certainty,” the plaintiff’s expert
“provide[d] only speculative and confusing testimony on causation.” Id. at
338–39. Because the plaintiff lacked evidence to create a jury question on
causation, we vacated the court of appeals decision and affirmed the district
court’s granting of the defendant’s motion for summary judgment.
In Asher v. OB-GYN Specialists, P.C., the parents of a child born with a
brachial plexus injury and a broken clavicle sued an obstetrician and his practice
for the injuries the child suffered during childbirth. 846 N.W.2d 492, 495 (Iowa
2014), overruled on other grounds in Alcala, 880 N.W.2d 699. The plaintiffs
alleged in part that the doctor failed to maintain an adequate chart tracking the
mother’s labor and that this chart would have alerted the doctors that she was
in protracted labor. Id. at 501–02. 20
The plaintiffs’ experts in Asher never directly testified that the inadequate
chart was the cause of the harm. Id. The experts’ testimony instead
(1) established the standard of care, (2) explained that a chart that fails to track
the patient’s labor every hour falls below that standard of care because it fails to
alert the doctor to possible labor complications, (3) stated that one of those
complications is protracted labor, (4) asserted that the plaintiff’s chart didn’t
track the labor every hour, (5) explained that the plaintiff was in protracted labor,
and (6) opined that protracted labor creates “an increased risk” for the same type
of injury that the child suffered. Id. Although not having made a direct statement
about causation, but having testified to each of these components, we held that
a reasonable jury could infer that the doctor’s failure to keep an adequate chart
caused the alleged injuries. Id. at 503.
The district court found Chen’s testimony sufficient to create a jury
question on causation concerning whether Belhak’s injuries resulted from
Smith’s use of incorrect sutures. Whether expert testimony creates a sufficient
probability or likelihood of a causal connection to generate a jury question
requires us to review the testimony in the case. Id. at 501.
Chen testified about the tensile strength of the sutures to enable the jury
to understand the consequences of using too weak of a suture.
A. . . . For an episiotomy, if you want to use appropriate tensile strength, it would be 2-0 or 3-0 vicryl, an appropriate choice. It’s an absorbable suture. Polyglactin suture is the chemical name. It’s an appropriate choice, but 4-0 is too fine of a suture, in my opinion. It would increase the risk of the wound breaking down or not have enough strength to hold it together.
Q. When you say, “the wound breaking down,” could you describe that more?
A. The wound breaking down or opening up or that stitch opening up. If you get stitches on your arm from a cut, and you are goofing around, and someone hits you, it opens up, because it 21
breaks apart the sutures, because of not enough strength holding it together. So we are able to -- With a 4-0, it is a finer suture. It would not be strong enough to hold that tissue together. . . . The other issue I have, in particular with using 4-0 vicryl, it comes on a smaller needle, and in general, when you’re doing episiotomy repair, if you can remember how far apart the tissue is in that picture you need to get what we call a wider bite -- I apologize -- is what we call in medicine a larger bite of issue with a pretty large needle to get a big area of tissue to bring it back together[.] [A]nd the 4-0 -- I have the sutures here to make it easier for the jury to see -- is a finer needle. You use it on small vaginal lacerations around the urethra. Those, in general, they bleed a lot but are very superficial, so you want a fine, smaller needle to sew those up. In general, that’s what we are using 4-0 vicryl for. It should not be used on the perineum – deep perineal tissues. It certainly should not be used as part of the episiotomy repair.
After this testimony, Chen testified about the University of Iowa medical
records stating that when Belhak arrived, she had a fourth-degree laceration and
that at least part of the wound did not have any sutures:
Q. “Per Dr. Miller vaginal repair site appears broken down and she does note stool in the vagina.” Did I read that correctly?
A. Yes.
Q. And so, what does the fact that Fatima Belhak’s vagina repair site appears broken down, what does that mean?
A. It’s hard to say, exactly. From what my guess is, they are seeing an opening either in the perineum or in the vagina or both.
Q. And when you say an “opening,” was your understanding that Dr. Smith attempted to repair -- to repair the episiotomy?
Q. And so, when you say -- Could you describe what are -- When you are looking at this record, what does it mean to you?
A. So broken down means they may see some intact stitches, but you will see tissue that is not sutured, but appears to be separated. 22
After this discussion, Belhak’s counsel asked several questions more
directly addressing the causal connection between the 4-0 sutures and Belhak’s
injury:
Q. Within a reasonable degree of medical certainty, that being more likely true than not, was Dr. Smith’s breach of the 4-0 sutures that she used a cause of the vaginal repair site breaking down?
A. My interpretation, also, they may think it was broken down, meaning they assume, for example, a fourth degree was repaired, and they see a defect in the perineum and don’t see sutures there, so they are assuming some of the sutures were dissolved versus it not being repaired at all.
Q. Sure. So you can’t tell whether -- which circumstance, but you know that whatever sutures that this medical provider is looking at has been broken down?
A. Some of the suture, yes.
The court of appeals concluded that Chen’s testimony, particularly in his
answers to the final two questions, were cryptic or confusing and thus did not
establish a causal link sufficient to create a jury question. But in our view, when
reading Chen’s testimony in its entirety, his testimony permits a reasonable jury
to conclude that, in Chen’s opinion, Smith’s use of the weaker 4-0 sutures
caused the breakdown at the wound site. See Asher, 846 N.W.2d at 500.
Chen’s testimony is thus more akin to the expert testimony in Asher than
in Susie. Chen discussed at length that the standard of care required a 2-0 or
3-0 suture for an episiotomy. He explained how and why a 4-0 suture fell below
that standard of care. He described in general terms that if a 4-0 suture was
used, “[i]t would increase the risk of the wound breaking down or not have
enough strength to hold it together.” The “increased risk” language was the same
language used in Asher. See 846 N.W.2d at 500. He then explained that the
medical records showed that when she arrived at the University’s hospital, her
wound had “some intact stitches” but there was “tissue that [was] not sutured,” 23
and “appear[ed] to be separated.” He testified to his conclusion from this medical
record that at least some of the sutures had broken down.
To determine whether Belhak generated a fact question for the jury, we
“review the evidence presented in the light most favorable to the nonmoving
party.” Dettmann v. Kruckenberg, 613 N.W.2d 238, 250–51 (Iowa 2000) (en banc).
Considering the full scope of Chen’s testimony, we find no error in the district
court’s conclusion that the jury could rely on evidence, and not speculation, to
find that the 4-0 sutures caused the breakdown at the wound site.
The court of appeals also held that even if Chen’s testimony established
that the 4-0 sutures caused a breakdown, Belhak failed to elicit testimony that
the deficient sutures caused the multi-month delay in properly repairing the
episiotomy and thus the harms resulting from that delay. Chen’s testimony
established that the improper sutures also necessitated the delay in her surgery
to repair the open wound. Chen testified that the improper sutures brought on
Belhak’s infection in the wound area because they left the wound area open.
Chen stated that a possible rectovaginal fistula is “an urgent matter that needs
to be investigated . . . to rule out infection and other potential complications.”
But the infection, once present, forced Belhak to wait to have surgery because
“repair[ing] it at this time will have a low success rate” and might require
avoidable repeated surgeries. And he said that the need to wait to have surgery
caused Belhak both short and long-term harm.
In short, Chen’s testimony permits the jury to draw a reasonable inference
that the use of the 4-0 sutures caused the breakdown at the wound site that led
to the infection, and that the infection necessitated the delay in the surgical
repair. Because sufficient evidence supported this specification of negligence, we 24
affirm the district court’s denial of the motions for directed verdict and for new
trial.
III. Conclusion.
We vacate the court of appeals decision and affirm the district court’s
judgment in favor of the plaintiffs.
Decision of Court of Appeals Vacated; District Court Judgment
Affirmed.
All justices concur except Waterman, J., who takes no part.