Zaw v. Birusingh, 974 N.W.2d 140

Background

Plaintiff Zaw, a Burmese-speaking immigrant, sought a circumcision in Iowa and was referred to The Iowa Clinic; clinic arranged Burmese interpreters through LANGUAGEtech.
At the first visit an interpreter signed a “consent for sterilization” form; records and testimony conflict on whether Zaw understood it or met the doctor before signing.
At a later appointment, with a different interpreter, Dr. Birusingh performed a vasectomy (not a circumcision); Zaw alleges he did not consent to or understand the vasectomy.
Zaw sued Dr. Birusingh for medical negligence and failure to obtain informed consent; The Iowa Clinic was vicariously liable; defendants third‑partied LANGUAGEtech.
A jury returned a general verdict finding Dr. Birusingh 70% at fault and Zaw 30%, awarding substantial damages, and found LANGUAGEtech not negligent; defendants moved for JNOV/new trial.
The court of appeals reversed and remanded for a new trial: it held the district court erred in submitting a separate “negligent‑communication” claim (unsupported by expert evidence), but preserved the informed‑consent theory for retrial and ordered all parties (including LANGUAGEtech) retried; peremptory strikes for each defendant must be four on retrial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was a separate negligent‑communication negligence theory properly submitted to the jury?	Zaw argued negligent communication (esp. failures to obtain/confirm referral info from third parties) was distinct from informed consent and supported liability.	Birusingh argued negligent‑communication was subsumed by informed consent and lacked expert testimony establishing a standard of care.	Court: No. The negligent‑communication theory as pled lacked expert support and substantial evidence and should not have been submitted; its submission requires a new trial because the verdict was general.
Was plaintiff’s expert testimony (Dr. Busky) admissible where he described the standard as ensuring the patient actually understood (strict‑liability phrasing)?	Zaw relied on Busky to show the duty to make patient understand.	Defendants argued Busky’s opinion improperly equated standard of care with patient comprehension (strict liability) and was legally incorrect.	Court: Busky could not state the standard as strict liability (i.e., actual patient understanding); that opinion was erroneous. But the court did not reverse solely on that error because it found expert testimony unnecessary to define the basic duty to inform about which procedure will be performed.
Was informed‑consent claim supported by substantial evidence and/or barred by statutory presumption of consent?	Zaw argued evidence (timing of signatures, interpreter testimony, witnesses) showed he lacked knowledge and rebutted statutory presumption.	Defendants contended no expert established a breach of disclosure duty and the statutory written consent presumes informed consent.	Court: Informed‑consent claim survives. Expert testimony is not always required to show physician’s duty to inform what procedure will occur (lay jurors can assess that disclosure); there was sufficient evidence to submit the claim and to rebut the statutory presumption.
Should LANGUAGEtech be excluded from retrial and how many peremptory strikes apply?	N/A (LANGUAGEtech sought exclusion after new trial granted).	Defendants argued LANGUAGEtech could be dropped because jury previously found it not negligent and issues are separable; defendants also objected they were improperly grouped with LANGUAGEtech for strikes.	Court: LANGUAGEtech must be retried with the other parties because liability issues are intertwined and the erroneous instruction may have affected the verdict; on retrial each defendant (Birusingh/Iowa Clinic and LANGUAGEtech) gets four peremptory strikes.

Key Cases Cited

Ferguson v. Exide Techs., Inc., 936 N.W.2d 429 (Iowa 2019) (standard of review for JNOV)
Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1 (Iowa 2014) (JNOV review: view evidence favorably to nonmovant)
Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839 (Iowa 2010) (fact question standard for JNOV)
Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161 (Iowa 1992) (expert testimony usually required to establish physician’s duty/standard)
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (informed‑consent focus on physician’s disclosure rather than patient’s comprehension)
Andersen v. Khanna, 913 N.W.2d 526 (Iowa 2018) (informed‑consent elements and rebuttable presumption analysis)
Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355 (Iowa 1987) (patient ordinarily needs expert proof on nature and likelihood of risks for materiality analysis)
Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973) (injury alone does not establish negligence)
Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82 (Iowa 1992) (general verdict tainted by erroneous theory requires new trial)
Jack v. Booth, 858 N.W.2d 711 (Iowa 2015) (new trial may be limited to some defendants; consider whether issues are intertwined)