IN THE COURT OF APPEALS OF IOWA
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No. 24-1140
Filed August 19, 2026
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Tiffany Lawyer, Plaintiff–Appellant,
v.
Leah Vandenbosch and The National Mutual Insurance Company, Defendants–Appellees.
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Appeal from the Iowa District Court for Polk County, The Honorable David Porter, Judge.
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AFFIRMED
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Steven Lawyer of Lawyer Law Firm, West Des Moines, attorney for appellant.
Stefanie J. Thomas-Nichols of Law Offices of John M. Guthrie, Des Moines, attorney for appellee Leah Vandenbosch.
Christopher Scott Wormsley of Lamson Dugan & Murray, LLP, West Des Moines, attorney for appellee The National Mutual Insurance Co.
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Considered without oral argument by Greer, P.J., Langholz, J., and Bower, S.J.
Opinion by Langholz, J.
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LANGHOLZ, Judge.
Tiffany Lawyer brought this personal-injury suit against Leah Vandenbosch after Vandenbosch rear-ended Lawyer’s truck. Vandenbosch admitted fault for the accident. So the four-day trial with competing experts was mainly about whether Lawyer’s damages were caused by the collision or her longstanding hip conditions and whether she failed to mitigate her damages when she chose to proceed with a complex open-hip surgery rather than continuing with conservative physical therapy and pain management.
The jury ultimately found that Vandenbosch caused at least some item of damage to Lawyer. But the jury also found that Lawyer failed to mitigate her damages. And the jury allocated 75% of the fault to Lawyer and only 25% to Vandenbosch. So Lawyer recovered no damages.
Lawyer now appeals. She argues that the district court erred in submitting the failure-to-mitigate defense to the jury because there was insufficient evidence supporting the defense. And alternatively, she contends that the court erred in failing to include an instruction that she had a right to choose between reasonable alternative treatments offered or recommended by her medical care provider.
Substantial evidence supported Vandenbosch’s failure-to-mitigate defense. So the court did not err in submitting that defense to the jury. And because the failure-to-mitigate instruction correctly stated the law and Lawyer’s proposed addition to the instruction was misleading or inaccurate, the court did not err in refusing to add her proposed sentence to the instruction. We thus affirm the district court’s judgment.
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I. Background Facts and Proceedings
Since long before the accident at the center of this suit, Lawyer has had problems with her right hip. She was more susceptible to such problems because of two congenital or developmental conditions. First, she had a misshapen femoral head—the “ball” part of the ball-and-socket hip joint located at the top of the femur (commonly known as the thigh bone). This can lead to impingement of the labrum—the cartilage lining the socket of the hip joint—and eventually to tears or disintegration of the labrum and much pain. Second, she had high femoral anteversion—where the femoral head and femur are abnormally rotated toward the front of the body, which “can contribute to both impingement and instability” of the hip.
As a child, Lawyer began riding horses “[e]very chance [she] could get,” eventually showing horses and participating in rodeo barrel racing and drill team. She also participated in many sports, especially favoring hurdles in middle-school and high-school track.
During eighth grade track in 2009, Lawyer “heard [her hip] pop”
while doing active stretches. Eventually a Des Moines surgeon diagnosed a tear in the labrum of her right hip. And she had her first orthopedic surgery in the summer of 2010 to repair the labral tear and reshape the femoral head. The surgery provided “some relief,” but she “still had a dull, numb pain.”
The next year, she had a second surgery with the same local surgeon to remove scar tissue to correct her ongoing pain. This surgery was more successful than the first, but Lawyer stopped running track to protect the work that had been done. Instead, she became more active in high school rodeo. Her events involved riding the horse at a run and making quick turns. She still felt discomfort, but riding was important to her, and she kept going. The medical records indicate Lawyer “was pain-free and doing great” after
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her second surgery, though at trial Lawyer described it as “improved,” not “pain free.”
Lawyer again returned to the local orthopedic surgeon in 2013. She rated the constant pain in her hip at “3 out of 10” and described it “as an ache, stabbing, and pins and needles” which was “aggravated by running, riding, and walking.” A scan revealed Lawyer’s right hip had a twenty-degree inward femoral anteversion, which the surgeon thought was “playing a role in the reason why she continues to have persistent pain.”
At the local surgeon’s suggestion, she travelled to the Twin Cities to get a second opinion from Dr. Christopher Larson, an orthopedic surgeon who specializes in hip preservation. In November 2013, Dr. Larson performed a third surgery—a revision hip arthroscopy—that repaired further labral tearing with anchors, removed scar tissue, reshaped the femoral head again, and repaired ligaments surrounding the hip. Dr. Larson advised Lawyer that “at some point if she continued to have problems [she] may need to [see] someone for consult on an open hip surgery as needed.”
After the third surgery, Lawyer “felt better than [she] had since the first labral tear” in 2009. She was working out and traveling to perform at rodeos with her drill team and competing at barrel racing. She gave birth to children in 2016 and 2019. In 2017, she was injured by a horse, but Lawyer described the injuries as mainly to her back near her kidneys and flank; she did not report symptoms in her hip. Other than a surgical follow-up appointment in February 2014, Lawyer had no hip-related medical care for the six years after the November 2013 surgery. And Lawyer said she did not think about her hip during that time.
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Then, in mid-November 2019, Lawyer was rear-ended. She was driving to work in her pickup truck—complete with the hitch used to pull her horse trailer—on a highway on the south side of Des Moines. As she came to a stop at a traffic light—with her right leg stretched “relatively straight” to reach the brake pedal (because of her height, it was “a little bit of a reach”)— she was startled by a small car hitting her from behind. The car that rear- ended Lawyer was driven by Vandenbosch.
Lawyer described the crash as “a severe impact” that threw her body back into her seat and then forward into her seat belt; Vandenbosch characterized the impact as “[m]inor. Airbags didn’t go off.” Lawyer testified that she experienced “immediate pain” in her right shoulder, but she did not show any problem with walking and told Vandenbosch she was “okay” immediately after the crash. The crash bent the hitch and frame of Lawyer’s truck and caused her spare tire adjacent to the hitch to puncture. The hitch also penetrated through Vandenbosch’s license plate and into the radiator of her car. Lawyer’s husband came and switched vehicles with her so she could go to work while he took the truck to the body shop. By the time she arrived at work, Lawyer’s hip was starting to bother her. She said it was “a very familiar pain” that she “remember[ed] having felt before . . . like [she] had a knife stuck in [her] hip.”
The next day, Lawyer went to see her doctor and reported pain “in her right shoulder blade, moving down her arm into her fingers” and “[p]ain also in her right hip and down her right side.” The doctor recommended “ibuprofen and ice,” and Lawyer complied. Five days later, Lawyer returned to the doctor because “her [right] hip really started bothering her.” Twice it “lock[ed] while rolling over in bed.” And she “had been having nearly constant [right] hip joint pain, deep, achy” that was “worse with standing
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and walking but [was also] present while siting.” An X-ray taken that day showed the ball of Lawyer’s femur had “some bony overgrowth.” And the doctor told Lawyer, “This is likely chronic and related to old surgeries.”
Lawyer’s shoulder pain resolved a few weeks after the accident, but the hip pain did not. Lawyer stopped riding horses after the accident, saying “It was too painful, I couldn’t move my hip that way.” And she “couldn’t keep up with [her] kids.” According to Lawyer, her hip felt as bad as it had before her first surgery when she injured her hip in eighth grade.
Lawyer’s doctor referred her to an orthopedic surgeon. And she returned to Dr. Larson in the Twin Cities. Dr. Larson concluded Lawyer’s symptoms stemmed from the 2019 car accident, but he was unable to specify what the actual injury was—“the accident led to the development of pain” needing treatment but did not cause the femoral anteversion. Dr. Larson conducted a physical therapy session with Lawyer, then referred her to Dr. Robert Westermann and Dr. Michael Willey at the University of Iowa Hospitals and Clinics (“UIHC”) because “they would have more tools to potentially help her” to “explore the source” of her pain, including the potential for another hip arthroscopy or open hip surgery.
Lawyer first met with the UIHC surgeons in late February 2020.
Dr. Willey explained in his later testimony that he generally first recommends patients with previous surgeries try “multiple nonsurgical treatments including physical therapy, activity modification, or sometimes an injection” to confirm the pain is from inside the hip joint. Consistent with that practice, Lawyer was given a corticosteroid injection resulting in around 60% immediate pain relief. And they prescribed eight weeks of physical therapy, two times per week, which Lawyer started with a provider in Norwalk. She told the provider that the UIHC surgeons said she was “in the gray area for
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if surgery [was] warranted” and they wanted her to do physical therapy “prior to any surgery to see if that helps.” But Lawyer only attended around three weeks of physical therapy appointments. In that time, her functional strength improved, as had her limp. Her final appointment’s record noted she was progressing “without reported increase in pain.”
Lawyer met with the UIHC surgeons again in mid-March. She reported that her pain had not improved. According to the contemporaneous medical notes and Dr. Willey’s testimony, they “advised that she continue with conservative treatment including pain management, physical therapy, and activity modification.” Dr. Willey explained in his testimony that he “would always recommend that for patients that don’t have a life-threatening condition.” But Lawyer was “very unhappy with the current status of her hip and . . . want[ed] to try surgical intervention to improve pain and function.” Specifically, “[s]he requested consideration for hip arthroscopy and femoral osteotomy to correct her intra-articular hip pain.” They “discussed concerns for lesser positive clinical outcomes with revision hip surgeries,” including the “50-60% chance of improvement in symptoms after surgery given several prior surgical inventions,” and “concerns for nonunion with femoral osteotomy and persistent pain.” But after their “long discussion about the risks, benefits, and alternatives to surgery,” Lawyer decided “[s]he would like to proceed with surgery.”
Dr. Willey explained in his testimony that because of the prior arthroscopic procedures, if they were going to do another surgery, they “wanted to correct all pathology and deformity that would be contributing to persistent hip pain” and prevent recurrence of her symptoms. But he also acknowledged “[i]t is very controversial on when the appropriate time to correct femoral version is” and that Lawyer’s “high femoral anteversion was
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in a borderline category that some would choose to do femoral osteotomy, some would choose not to,” but he believed “after already failing three arthroscopic hip surgeries, it was the correct decision to correct all the known pathology that could contribute to her persistent problems.” Still, while Dr. Willey agreed it was Lawyer who “wanted the surgery,” he reiterated that “we wouldn’t have recommended surgery for her if we didn’t think it would benefit her situation.”
So at the end of April, Dr. Westermann and Dr. Willey collectively performed three complex procedures on Lawyer over four hours of surgery. First, Dr. Westermann performed a removal of bony overgrowths on the femur head. Second, he performed arthroscopic labral repair, which required some labral reconstruction and reshaping because Lawyer “did not have adequate labrum tissue to perform a primary repair.” Third, Dr. Willey took over to perform a femoral osteotomy to correct Lawyer’s femoral anteversion. This major procedure involved making a large incision to Lawyer’s thigh to reach the femur bone, cutting her femur in half, rotating the bone by twenty degrees to correct the abnormal angle, and then attaching a custom-fitted metal plate with eight screws to rejoin the two portions of her femur. Dr. Willey was unable to say with any certainty which of the three corrected conditions—bone growths, labrum deficiency, or femoral anteversion—was the source of Lawyer’s pain. But he agreed that all three corrected conditions existed before the accident and were not caused by the accident. The only issue that could have been caused by the accident was the hip pain itself.
During her recovery, Lawyer experienced “incision pain and muscle spasms” in her thigh but less hip pain. Starting around six weeks after surgery, she went to three months of physical therapy to regain her range of
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motion and ability to bear weight on the right hip. Lawyer and her children stayed with her parents—away from her husband, pets, and horses—while she was healing. She was unable to pick up her young children—her mother cared for her kids. And she could not care for herself—needing her mother’s assistance to stand up and sit down to use the bathroom, to shower, to prepare her meals, and to drive her to physical therapy appointments. At the end of physical therapy, Lawyer still had a limp, but she was able to bear her full normal weight on her right leg.
At her one-year surgical follow up, Lawyer “note[d] pain in her right thigh and symptomatic hardware, worse in winter,” but she reported significant hip-pain relief and the ability to carry out all normal activities. She requested the removal of the hardware from her previous surgery to fix the cold-weather pain in her leg caused by the hardware. The surgery occurred in late May. The risks of that surgery included “blood clots, infection and nerve damage.”
According to Lawyer, even after the surgeries and healing process, she has not been able to ride horses regularly again because of the pain it causes. She is also afraid of reinjuring her hip. She testified her hip “just gets tired and painful” when she plays with her kids in the yard and doing house and yardwork takes longer to “not overexacerbat[e] [her] hip joint.”
In November 2021, Lawyer filed this suit against Vandenbosch.1 Over a four-day trial in October and November 2023, the jury heard testimony and
1 Lawyer’s husband also initially joined the suit asserting a loss-of-consortium claim. And the Lawyers asserted claims against National Mutual Insurance Company, their uninsured-and-underinsured-motorist-coverage provider. But shortly before trial, Lawyer’s husband dismissed his claims. And Lawyer’s claim against National Mutual Insurance Company was severed and is not at issue on appeal.
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received evidence describing the facts above, including video depositions from two of Lawyer’s surgeons—Dr. Larson and Dr. Willey.
Vandenbosch also presented the video deposition of her own expert—
Dr. Todd Peterson—to counter the testimony of Lawyer, Dr. Larson, and Dr. Willey. Dr. Peterson explained that an osteoplasty—the shaving of the misshapen bone—can cause the bone to be “irritated, and then it may make more bone up in there.” And he observed this sort of regrowth appeared to have occurred in Lawyer’s hip, and it can “predispose someone to having that impingement or labral tear.” Dr. Peterson further explained that a deficient labrum where her previous labral repair had occurred indicated “an incredibly chronic injury that’s happened over a long period of time.” In short, the three procedures Lawyer underwent after the accident were for chronic conditions—not acute injuries from the accident. He testified, “to a reasonable degree of medical certainty,” that the injury attributable to the accident was “some hip pain”—possibly a hip contusion. But he didn’t believe any labral tearing was specific to the accident, nor was the femoral anteversion—the injuries treated in the surgeries were chronic problems. And so, in his opinion, only the exploratory hip arthroscopy was attributable to the accident—the other surgeries were not required.
According to Dr. Peterson, it was unlikely Lawyer had “any permanent issues or injuries as a result of the accident.” But it was reasonable to say her preexisting condition was “triggered or activated by the collision.” Still, he answered “Absolutely” when asked “if [Lawyer] had participated in conservative treatment like pain management, physical therapy, or activity modification, could she have seen relief from her hip pain as a result of those?” Dr. Peterson explained that his opinion was based on “multiple studies talking about hip arthroscopy after multiple procedures and doing
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surgery and just doing physical therapy” and that it is “just common sense in our surgical world” that “[m]ost people who have been multiply operated on, there are lots of factors at stake there, and they’re just, in general, less positive outcomes than treating a simple acute injury.” And he noted his “100 percent” agreement with Dr. Willey’s “concerns for lesser positive clinical outcomes with revision hip surgeries” that Dr. Willey discussed with Lawyer when “she requested consideration” of the surgery. So Dr. Peterson would not have recommended the surgery for her femoral anteversion. But he did not think the medical care provided was negligent, and he believed Dr. Willey “was trying to help” Lawyer “with his best ability.”
At the close of the evidence, Lawyer objected to the instruction submitting the failure-to-mitigate defense to the jury. She argued that there was insufficient evidence to support submission of the defense because “it was a shared care decision” for Lawyer to elect the surgery and Vanderbosch’s expert, Dr. Peterson, “did not testify to a reasonable degree of medical certainty that the outcome was worse because of the surgery [than] it would have been with an alternative course.” Lawyer also argued that “[i]f the Court intends to leave the instruction in,” it should add a sentence that “a patient has a right to choose between reasonable alternative treatments offered or recommended by her medical care provider.” The court overruled Lawyer’s objections and submitted the failure-to-mitigate instruction without her additional sentence.
Among other claimed damages, Lawyer sought to recover a total of roughly $59,000 in past medical expenses. A little less than $50,000 of those expenses were UIHC expenses for the surgery and post-surgical care and another $5,800 were from another provider for physical therapy to recover
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from the surgery. Only about $3,200 of the medical expenses were for her conservative physical therapy and treatment that Lawyer elected to stop.
Lawyer also sought damages for loss of function and pain and suffering and in her closing argument specifically broke down her request into different time periods: (1) from the date of the accident until her surgery; (2) the surgery until her recovery to be weight-bearing on her hip again; (3) from that point of recovery until the trial; and (4) the future. As for the surgery and recovery, she urged the jury to consider the “pain of the operation” and the ordeal of “two nights in a hospital and just to go through that procedure.” She highlighted that recovery took roughly three months before “she was fully weight-bearing,” and she had to live with her mom, away from “her husband,” “her pets,” and “her horses.” She argued that in addition to pain during that time, her loss of function was “substantial” because she was not “able to walk,” “bathe” herself, “dress” herself, or “stand”—requiring her mom to “come in and lift [her] up off the toilet.”
Vandenbosch argued that none of Lawyer’s claimed damages were caused by the collision but rather by her longstanding hip conditions. But alternatively, she argued that as to these medical-expense, pain-andsuffering , and loss-of-function damages arising from the complex surgery, Lawyer failed to mitigate because “she elected to have surgery to fix all of the pathology that was going on inside of her hip” rather than the more conservative treatment recommended by her surgeons for her new pain— physical therapy and pain management. In discussing any potential pain-andsuffering or loss-of-function damages even after her recovery from the surgery, Vandenbosch also highlighted the expert testimony that Lawyer’s persistent issues would have been a “cumulative” result of all four of her hip
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surgeries, thus contending that the jury might “divide those [damages] by four” to calculate “your one slice potentially related to this accident.”
The jury returned a verdict answering three special interrogatories.
First, it found that Vandenbosch’s fault was a cause of some “item of damage” to Lawyer. Second, it found that Lawyer failed to mitigate her damages. And third, it assigned Lawyer 75% of the fault for her failure to mitigate damages and 25% of the fault to Vandenbosch. Because Lawyer was more than 50% at fault, the jury did not make any finding on Lawyer’s damages.
Lawyer moved for new trial, arguing that the court erred in submitting the failure-to-mitigate defense to the jury because Vandenbosch “failed to proffer sufficient competent expert testimony to support” the instruction and verdict. The court denied the motion, reasoning that Vandenbosch “presented ample medical evidence and testimony to support the submission of the failure to mitigate comparative fault instruction to the jury.” Lawyer now appeals.
II. Sufficiency of the Evidence Supporting Submission of the Failure-
to-Mitigate Instruction
Lawyer first argues that the court erred in submitting a failure-tomitigate instruction to the jury—and in denying her motion for a new trial based on that same error—because there was insufficient evidence to support submission of that claim. We review for correction of errors at law. See Greenwood v. Mitchell, 621 N.W.2d 200, 204 (Iowa 2001). “A trial court must refuse to instruct on an issue having no substantial evidential support or which rests on speculation.” Id. (cleaned up). But in deciding whether the evidence is substantial, “we give the evidence the most favorable
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construction possible in favor of the party urging submission.” Id. at 205 (cleaned up).
Under Iowa’s comparative fault law, the term “fault” means, among other acts, the “unreasonable failure to avoid an injury or to mitigate damages.” Iowa Code § 668.1(1) (2019). This incorporates the “avoidable consequences doctrine,” which provides that “a party cannot recover damages that result from consequences which that party could reasonably have avoided.” Greenwood, 621 N.W.2d at 205 (cleaned up). Unlike contributory negligence, which focuses on “negligence of the plaintiff before any damage, or any invasion of [her] rights,” this defense “comes into play after a legal wrong has occurred, but while some damage may still be averted.” Id. (cleaned up). So when the defense applies, a plaintiff is barred from recovering all or some percentage of the portion of the damages that were caused by the plaintiff’s failure to mitigate. See Iowa Code § 668.3; Greenwood, 621 N.W.2d at 205, 207–08.2
2 Because the failure-to-mitigate “defense is based on conduct occurring after the plaintiff has sustained an injury caused by the defendant’s fault” and “the defendant must prove a causal connection between the plaintiff’s fault and the plaintiff’s damages,” cases involving the defense “almost always present a situation in which some portion of the plaintiff’s damages will not be subject to the failure-to-mitigate claim.” Greenwood, 621 N.W.2d at 207. In that situation, to avoid barring a plaintiff from all recovery when the jury finds that the plaintiff’s failure to mitigate was a greater percentage of the fault than the defendant’s fault, the supreme court has explained that it may often be appropriate to use “separate verdict forms for the period prior to the plaintiff’s alleged failure to mitigate and for the period that includes the plaintiff’s alleged failure to mitigate.” Id. at 208; see also Iowa Code § 668.3(1)(a). But neither party argued for the use of separate verdict forms in the district court. And on appeal, Lawyer does not challenge the verdict form submitted to the jury. Any error on this issue is thus not properly before us.
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To prove the failure-to-mitigate defense, a defendant has the burden to show that:
(1) there was something the plaintiff could have done to mitigate [her] loss, (2) requiring the plaintiff to do so was reasonable under the circumstances, (3) the plaintiff acted unreasonably in failing to undertake the mitigating activity, and (4) a causal connection exists between the plaintiff’s failure to mitigate and the damages claimed.
Vasconez v. Mills, 651 N.W.2d 48, 53–54 (Iowa 2002). And so, “[b]efore a failure-to-mitigate claim may be submitted” to the jury, “the defendant must introduce substantial evidence” on all four elements. Id. at 53.
Over Lawyer’s objection that Vandenbosch failed to present substantial evidence supporting the defense, the district court instructed the jury on Vandenbosch’s failure-to-mitigate claim:
Defendant claims Plaintiff was at fault for failing to mitigate her damages by electing to proceed with surgery as opposed to continuing physical therapy. Plaintiff has a duty to exercise ordinary care to reduce, minimize or limit her damages. However, Plaintiff has no duty to do something that is unreasonable under the circumstances, such as undergo serious or speculative medical treatment, undertake action which is unreasonably expensive or intrusive, undertake action which imposes unreasonable inconvenience.
In order to prove the claim of failure to mitigate damages, Defendant must prove all of the following propositions:
1. There was something Plaintiff could have done to mitigate her damages;
2. Requiring Plaintiff to do so was reasonable under the circumstances;
3. Plaintiff acted unreasonably in failing to undertake the mitigating activity; and
4. Plaintiff’s failure to undertake the mitigating activity caused an identifiable portion of her damages.
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If Defendant has proven all of these numbered propositions, Defendant has proven this defense, and you shall assign a percentage of fault to Plaintiff for the time period after Plaintiff failed to mitigate. This amount will be used in answering a special interrogatory in the verdict.
If Defendant has failed to prove one or more of the numbered propositions, Defendant failed to prove Plaintiff failed to mitigate her damages.
The court did not err in submitting the failure-to-mitigate defense.
Much of the trial focused on whether Lawyer failed to mitigate her damages—specifically the medical expenses of her surgery and the loss of function and pain and suffering resulting from the surgery and her recovery—by stopping physical therapy after three weeks and insisting on the more aggressive surgery. This claim was at the heart of Vandenbosch’s defense. And she presented substantial evidence supporting each element of the defense.
Based on the evidence that Lawyer’s surgeons recommended she engage in eight weeks of physical therapy and pain mitigation, that the therapy was helping, but that she stopped the therapy after three weeks and requested aggressive surgery instead, the jury could have found Lawyer could have mitigated some of her damages by sticking with the conservative treatment plan rather than surgery.
The jury could have also found that requiring Lawyer to do so was reasonable under the circumstances and that she acted unreasonably in failing to stick with the conservative treatment rather than the surgery. Vandenbosch’s expert, Dr. Peterson, testified that he would not have recommended the surgery for the pain arising from the car accident and that continuing with conservative treatment “absolutely” could have relieved Lawyer’s hip pain. Indeed, even her own surgeons recommended that “she
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continue with conservative treatment” and one of them testified that he “would always recommend that for patients that don’t have a life-threatening condition”—as Lawyer did not. They too had concerns about “lesser positive clinical outcomes” from the surgeries—only a “50-60% chance of improvement.” And the surgery did result in great expense, pain, and a lengthy period of recovery.
True, the record also has contrary evidence supporting a finding that Lawyer’s conduct was reasonable. But where, as here, there was substantial evidence supporting either finding, that is not enough to keep the defense from the jury. See Fuches v. S.E.S. Co., 459 N.W.2d 642, 644 (Iowa Ct. App. 1990) (“Whether plaintiff has acted reasonably in minimizing or mitigating damages and whether or not the treatment suggested was reasonable should be determined by the trier of fact.”); cf. Greenwood, 621 N.W.2d at 206 (holding that mere letter from physical therapist to the plaintiff suggesting some exercises without “any testimony that [the plaintiff’s] failure to continue his home exercise regimen in perpetuity was unreasonable” or “any expert testimony that [his] continuation of home exercises would have prevented certain damages” was “too uncertain to support submission” of a failure-to-mitigate defense).
And finally, the jury could have found that Lawyer’s choice to elect the surgery rather than continuing with conservative treatment caused an identifiable portion of her damages. Lawyer sought roughly $56,000 in medical expenses that her exhibits showed were the result of the surgery— over 90% of her total request for past medical expenses. She also placed much emphasis on her request for pain-and-suffering and loss-of-function damages specifically from the surgery and the roughly three months of recovery from the surgery. And Vandenbosch argued that these items of damage specifically
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were caused by her choice to elect the surgery. While sometimes more specific expert testimony about causation is required, see Greenwood, 621 N.W.2d at 207, here it was “so obvious that it is within the common knowledge and experience of a layperson” that these items of damage were not caused by anything else besides the surgery, Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 794 (Iowa 2009); cf Stickleman v. Synhorst, 52 N.W.2d 504, 507 (Iowa 1952) (holding that no expert testimony was required on causation where evidence showed that patient began bleeding profusely from the neck after doctor inserted needle into the throat, apparently missing the intended mark and hitting a blood vessel).
We thus affirm the district court’s submission of the failure-to-mitigate instruction to the jury and its denial of Lawyer’s motion for a new trial on that same basis.
III. Additional Instruction on Choosing Alternative Treatments
As her backup, Lawyer argues that even if submitting a failure-tomitigate instruction was proper, the court should have added another sentence to it, instructing: “A patient has a right to choose between reasonable alternative treatments offered or recommended by her medical care provider.”3
3 On appeal, Lawyer also challenges another sentence in the submitted instruction that instructed the jury: “Plaintiff has no duty to do something that is unreasonable under the circumstances, such as undergo serious or speculative medical treatment, undertake action which is unreasonably expensive or intrusive, [or] undertake action which imposes unreasonable inconvenience.” But before the district court, Lawyer did not object to including this sentence in the instruction. So any error in its submission is not preserved for our review. See Olson v. Sumpter, 728 N.W.2d 844, 848–49 (Iowa 2007).
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We review jury instructions for correction of legal error. Rivera v.
Woodward Res. Ctr., 865 N.W.2d 887, 891 (Iowa 2015). “It is error for a court to refuse to give a requested instruction where it correctly states the law, has application to the case, and is not stated elsewhere in the instructions.” DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009) (cleaned up). But a “court has the responsibility to submit only those instructions that have support in the record.” Field v. Palmer, 592 N.W.2d 347, 352 (Iowa 1999). And “[w]hen we weigh the sufficiency of the evidence to support an instruction, we construe the evidence in a light most favorable to the party seeking submission, here the defendant.” Sleeth v. Louvar, 659 N.W.2d 210, 215 (Iowa 2003) (cleaned up). Instructional error “does not merit reversal unless it results in prejudice”—such as if they mislead the jury or materially misstate the law. DeBoom, 772 N.W.2d at 5 (cleaned up).
The district court did not err in refusing to add Lawyer’s requested sentence to the instruction. The instruction given to the jury correctly stated the law on the failure-to-mitigate defense. Indeed, it closely tracked the Iowa State Bar Association’s Model Civil Jury Instruction 400.7. And to the extent that Lawyer’s proposed sentence would have added anything not already covered by the given instruction, it is misleading or an inaccurate statement of the law. Rather than focusing on the reasonableness of a plaintiff’s conduct under all the circumstances, the instruction appears to suggest that if the medical treatment was reasonable and a doctor was willing to offer it, then a plaintiff could never be responsible for damages caused by the plaintiff’s choice as a matter of law however unreasonable the choice may have been under all the circumstances. Lawyer points us to no precedent establishing such a limitation on the failure-to-mitigate defense. And we have found none.
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To be sure, the reasonableness of the surgery and the extent that it was offered or recommended were proper factors that Lawyer could—and did— argue to the jury as bearing on the reasonableness of her conduct under the circumstances. But they do not have the dispositive weight Lawyer sought to give them with her added sentence. We thus affirm the district court’s refusal to add Lawyer’s proposed sentence to the jury instruction.
AFFIRMED.