Schnebly Ex Rel. Schnebly v. Baker

Kelly SCHNEBLY, H. minor, Orvin Schnebly, Schnebly and Wanda natural friends, al., Appel guardians et and next lees, Appellant. BAKER, M.

John BAKER, Appellant,

John M. OF

ST. JOSEPH MERCY HOSPITAL al., Appellees. DUBUQUE, Iowa, et

No. 55408.

Supreme of Iowa. Court

April 24, 1974.

Laird, Burington, Heiny Bovard & Pappas, City, William and Theo- Garfield, Ames, dore appellant. G. Karr, Karr Karr, City, & Webster Robins, Lyons, Davis & Eisberg, F. John Paul, Minn., St. Wattson, and Robert M. Minn., Minneapolis, appellees for Schnebly. Schroeder, Walter City, C. Mason Ahlers, Cooney, Dorweiler, Hay- Allbee & nie, Moines, Des appellee Hospital. for Brown, Kinsey Shep- & Funkhouser and Shepard, ard & City, appellees Joyce and Potter.

UHLENHOPP, Justice. appeal This is an by defendant M. John $1,044,798 Baker from judgment a against malpractice him for and from dis- cross-petition missal of his against others for indemnity or parties contribution. The divergent take views the facts but we light consider the evidence in most fa- vorable to findings. the trial court’s Zeman, (Iowa). Reichle N.W.2d Schnebly H. Rh-positive Orvin has wife, blood. Schnebly, His has Wanda Rh-negative present blood. Prior to the events, Schnebly Mr. and Mrs. had three Rh-positive children. Their first child had blood and their second third children Rh-negative had blood. Erythroblastosis fetalis is a disease of the fetus and the newborn resulting group blood incompatibility between Rh-negative mother and If an child. Rh-positive mother conceives an fetus and pla- some of the fetus’s blood crosses the embracing grasp jarred), blood mother’s stinctive when into the barrier cental lethargy, irritability, cry, rigidity, shrill system antibod stream, forms the mother’s spleen. enlargement of unaffected. liver and Generally fetus is ies. Treatment, indicated, usually subsequently conceives when consists if the mother But fetus, exchange an one or more transfusions Rh-positive mother’s another high propor- and is in barrier blood successful may placental tibodies cross in small destroy tion of cases. Blood red blood transfusions fetus and its into this infants are bil- attended moderate—al- cells, producing Accumulated bilirubin. though not negligible cell causes in a child irubin newborn —risks. death, death occurs when that cell Iowa, Schneblys City, live Forest system including the the central nervous Schnebly engaged where Mr. in business. Brain is irreversible. brain, damage question Prior to Mrs. events Schne- ker- is called damage caused bilirubin bly, homemaking, worked .in addition Neyland, 115 U.S. nicterus. See Price v. bookkeeper, quite and was familiar with App.D.C. 320 F.2d complicated bookkeeping systems. had She normally the liv- Bilirubin handled “A” college taken some work and received way in the urine or and is excreted er grades. ques- Throughout events during the first gall But bladder. tion, Schnebly oth- kept Mr. each Mrs. life, infant’s an liver 72 hours informed regarding er Mr. details. Schne- criti- bilirubin. The yet be able handle bly testified he understood that bilirubin per milligrams is 20 cal level bilirubin danger point level of 20 was the at mgs %), (20 blood milliliters of damage brain could start thereafter. to begins irritation occur point brain rate damage. Schneblys’ possible physician cell was with brain T. Irish of J. pre- City, general practitioner. in the newborn Forest rise of bilirubin Schne- reading blys The “indirect” bilirubin and Dr. Irish were dictable. aware of Rh incompatibility, is the one used. and Dr. discussed Irish it them during Schnebly’s pregnan- with Mrs. run in laborato- for Tests bilirubin cy. explained He expect, detail what reagent used hospitals. The ries of physicians tests, what watch for in the age, making deteriorates such tests pregnan- what would During be done. to be unreliable. causing test results cy upon Dr. Irish conducted tests Mrs. Schnebly X-rays. and took He ascertained indicat- newborn child is Treatment of a that her type. antibodies were a virulent jaundice within if the child exhibits ed Mrs. apprehensive was Schnebly and was birth; indirect if the eight to hours of especially worried last month. mgs within n % level bilirubin exceeds mgs hours, 15 within the first 24 % During pregnancy in- Dr. Irish hours, mgs thereafter or 20 first 48 % formed prob- Dr. M. Baker about John life; if the days of within the first five lem and the possible need assistance. mgs per hour rise 0.5 rate of exceeds % Dr. Baker is Dr. Irish’s brother-in-law Rh incom- hours. during the first 48 pediatrician is a at Mason He City, Iowa. a se- cases, patibility physician orders is on Joseph the staff Mercy Hospi- of St. apart fol- several of blood tests hours ries at City tal Mason performed and has birth, keep the biliru- lowing the child’s contract, By patholo- transfusions there. tests Blood level under observation. bin gists George Joyce T. H. Potter Paul accurate; invariably for bilirubin are charge have laboratory at that hos- regularly physician also observes hence pital. The City hospital laboratory Forest heightened bilirubin signs child could also run bilirubin tests did not jaundice, less- include signs These levels. (in- have pathologist charge. Moro’s reaction suck reflex and ened Schnebly’s Mrs. reported antibodies rose He toward the test to Dr. level Baker. end pregnancy. of her According Schnebly, Dr. Irish in- to Mrs. Dr. Irish told this, formed her of entered her her For- that the was that Dr. level 17 and Bak- City hospital, est morning induced labor er said to until bring near wait the end. p. 8, 1964, At 7:40 on child to City m. Mason tests and more June Schnebly Mrs. was delivered of a decision normal on what to do. child, full-term male whom Schneblys morning ap- On the 10 the child June Kelly. named The child’s bilirubin level at peared Schnebly. At worse Mrs. 7:30 1,48 %, birth was mgs according to the morning, o’clock that Irish entered the Dr. City hospital Forest laboratory. Dr. Irish Joseph Hospital child at Mercy St. at Ma- so telephone informed Dr. Baker City. son Dr. Baker examined child Schnebly told Mrs. the test was “one.” complete and ordered a blood He count. At 7:30 m. spleen a. 9 the child’s testified that the bili- child’s and liver June rubin had risen mgs to 9.4 were not enlarged. That fore- (cid:127)%. Schnebly noon Mrs. observed that the child Pathologists Joyce and Potter had not was beginning yellow. to turn At noon procedure established a in the Mason Dr. Irish Schnebly informed Mrs. that the hospital laboratory to that the re- assure test was nine and that this was a fast rise. agent used for bilirubin tests would not be- According Schnebly, to Mrs. Irish told Dr. overaged. morning come On the her June that Dr. Baker said if got the test reagent 10 the overaged was in fact 20, a blood exchange might necessary, yielded wrong Although results. it is un- from 20 to 25 certainly there most disputed that the actual bilirubin level be some brain damage, from 25 to 30 there approximately the child was then damage, would be serious and from to30 City laboratory 11.2, test result was usually 50 the child went into a coma or reported and that level Bak- died. Schnebly Mrs. testified she was question er. Dr. Baker did not that read- long worried and wanted to know how ing; he laboratory’s readings testified the they going were to taking wait before during years had been accurate the several City. child to Mason Dr. Irish said practiced City. he had at Mason theOn would run another test. hand, jaundiced, other the child was By City mid-afternoon on the child Forest test of 16 to 18.3 was incon- June yellow, active, was more less 11.2, and less re- City sistent with the Mason test of sponsive Mrs. Schnebly. to That after- Dr. Baker could that have ascertained noon the bilirubin had risen to City 13.6. Dr. rate of rise the Forest tests Irish Schnebly so informed Mrs. but said internally was consistent. He did not or- taken; another test would be Baker der a Dr. retest or a series tests the Ma- did not want brought the child City Mason laboratory probably son —which yet. City At that time the rate rise was yield wrong any- have continued results mgs per 0.6 persist- hour. If way that rate placed he his reliance on the Ma- % —but ed, the critical level of 20 would be City son test and that the Forest assumed early reached in morning hours of City test was inaccurate. Dr. Irish relied 10. reported Dr. Baker’s conclusion and June Schnebly City Mrs. that reading the Mason evening On the Schnebly 9 Mrs. June reassuring. was which was Dr. Irish “just something knew” that wrong. was throughout endeavored Mrs. to reassure The child did not yellow; eat. He was the Schnebly. whites eyes of his starting were to turn. p.

At 10:00 m. the bilirubin had risen to day That Irish Drs. and Baker had the between 16.3 figure and 18—the exact was A urinalysis afternoon off. done at that not ascertained. Dr. Irish was concerned. urine, signi- time showed bile the child’s City hospital Joyce and asked if the Mason red of the child’s destruction

fying massive having any tests present, was trouble with bilirubin not Dr. he was cells. blood Since no, also asked report that and was told and he Dr. at Baker did not receive Joyce’s opinion City hos- about the Forest Schnebly visited evening Mr. time. That pital laboratory and has hospital and was told “there City Mason the child at the coming been inaccurate results from there.” jaundiced. saw that he was Joyce Dr. he not remember testified did bili- 11a second morning of On the June this that “it call but well have taken City hospital read at the Mason rubin test place.” he Dr. Baker also testified called 9.9, probably level was the actual whereas Irish Dr. and was told the alertness and picture clinical approximately 37. The ability sucking good. of the child were 9.9, inconsistent with the child would ap- rely morning 12 the child on the lab- On but Dr. Baker continued June worse, cried, peared just took be re- as bad or discharged the child to oratory and nourishment, poorly. very little and sucked City. test result turned to Forest Schnebly nearly to Mrs. testified she was out impending return child’s 9.9 and the worry. of her mind with Dr. Irish was Mrs. City reported to Schne- Forest were in his fa- greatly from also worried and called Schnebly the child bly. Mr. returned ther, physician. They a retired told that the child Mrs. City. He testified Mason nurse, Schnebly they going to take the child very and that he told the was dark City. to Mason just like a Chinaman. baby looks “This yel- very jaundiced He is The child was readmitted to the Mason that Schnebly further testified low.” Mr. City hospital day. He about noon cry unnatural and did the child had a shrill rigid somewhat at times which indicated all, Baker appear at and that Dr. not well opisthotonos, a sign damage. of brain Dr. he baby very jaundiced and stated “the test, Baker ordered which read a bilirubin rely on quite going rigid, but we He talked to the head medical technol- child, Upon seeing Mrs. the test.” ogist discrepancies and told her about the Schnebly The child did was worried. City City Forest tests. sucking strength. to eat and had no care faulty reagent, ran She discovered the an- test, p. reported also worried and 2:00 which read Dr. Irish was reported reading had the Forest labora- to Dr. Baker. Dr. Irish day m. that he yielded It tory Schnebly test. these same aft- another bilirubin facts Mrs. run said, this to Mrs. reported “There of 39.8. He ernoon. She testified he seems result said the her Baker to be Schnebly and told a mistake. have made a mis- We bring testified, right not be and to take.” further him test could She “I asked morning if City wrong the next some ánd child to Mason more about this solution necessary. According they to thought he said he but that when Dr. Irish didn’t know Schnebly there, testimony, got they was aware and it her Mrs. over ran another test relying on the insisted on again, that Dr. Baker was low under 20 and Dr. Baker despite the readings City going anything bilirubin wasn’t and Dr. Irish to do readings said, and the Forest ‘And ranted and and raised different I raved Irish child. Dr. to deepening jaundice got of the the roof until I the head technician Schnebly should discussed what run Then he and Mrs. come down and another test.’ Rochester, they they about been done, and she asked out that had said found Schnebly nobody testified Dr. making Mr. a Minnesota. mistake. He said worried, just Kelly could they thought that Dr. Irish was Irish was listen to him and sick, understand, going knew the child was to do right. he all Dr. Baker wasn’t Baker’s follow Dr. anything but he said he had to and he said he made a nuisance they he just Dr. Baker testified when run directions. of himself and he insisted 39.8, called Dr. report again.” he received that test over report After Dr. Baker received the of without success. At suggestion, Dr. Irish’s an exchange he ordered transfusion. Schneblys took the child to Dr. Baker in This after- at 3:15 o’clock that commenced December 1964. Dr. Irish had recom- transfusion, noon. After the the bilirubin pacifier, mended use of a but Dr. Baker dropped reported said, level 23.8. Dr. to Irish “Don’t pacifier use the because he that Schnebly just Mrs. the transfusion had in the air sucks and it makes him all gone right thought all he one and another colicky.” more Schneblys He told transfusion, necessary. keep would be A second the child right on his side try day, the next reduced 14.6. the level phenobarbi- Atarax which is stronger than rebound, tal, After slight many level declined. that babies colic had and the Schnebly Mrs. testified she felt reassured. outgrow regard child would it. With Very severe, permanent damage damage, brain brain Dr. Baker it stated would be high during occurred time bili- years they ten before would know and then rubin they level. At trial wouldn’t know the extent. Schnebly whether he re- Mr. was asked hospital The child after remained saying anything called Dr. Baker about Schnebly Mrs. discharged. was testi- She Schnebly child’s future Mr. condition and terrible, fied that on 21 he looked like June said no. “refugees that haven’t eaten and the skin is clinging they their bones have a Schnebly Mr. and Mrs. testified While dead, kind of lost look to them.” Schne- they assured felt statements blys brought July the child home 9. physicians, they they also testified that continually. Thereafter the child cried readings were aware 39.8 nearly Irish every day. pre- called He possible they damage that knew brain phenobarbital. scribed Schnebly Mr. de- brain readings damage over 20 and severe scribed the nightmare. situation It levels, higher occurs at took an hour or more to feed the child. very worried. He would hold his breath and turn dark Schneblys Baker, After saw Dr. “pass blue and sometimes out.” He would except couple cry child continued to for a spit up sleep milk and curdled but little. near did weeks Christmas. He not de- Schnebly squeeze Mrs. bag used to force children; velop Schneblys’ like he

milk into him. The child’s hard continuous sick, constantly sleep, was did not and ran crying hernia, caused a double which the testified, Schnebly temperature. Mrs. successfully repaired. Drs. Irish child respond. “He didn’t He ever look at didn’t required care, day night. constant anything.” us like he knew Schnebly Mr. and Mrs. conferred incident, Following the firecracker Mr. kept each other up each other date Schnebly suggested Irish to Dr. as to what each of them observed might child be sent to the school for physician what the Schnebly said. tes- Mr. maybe responded deaf. Dr. Irish tified that did a nor- the child not act like school would not take him because men- mal baby he very and that worried ability high enough. tal He would not be about possibility damage. brain they University suggested take the child Schneblys suspected the child deaf. was Hospitals at for evaluation. Mr. Schnebly off set a firecracker on They April so and in 1965 the did child floor and the child did tes- not flinch. He thoroughly Schnebly was tested Mr. there. tified he knew then the child not could testified, along, “As these tests went we hear. disabilities, Kelly’s learned more of his The child cry continually, continued to damages, damages, brain extent out, to turn pass blue and his go and to vomit would and be what he would limited to food. Dr. Irish tried doing. various medicines said what his The doctors never entirely stimuli; tactile lack also of but This we would ob-

limits would be. inability and light perception After limited went on.” exami- serve as time stated, inability nation, objects visually; and an according doctor there follow recognize strangers, pos- in Schnebly, “would al- difference Mrs. that the child sibly recognizing his mother and father ways complete care and that have to have blackouts, only primitive way. in spells a a crying were brain seizure, Kelly did not type of and that regular The has manual child exercises wasn’t he crying; even he was know hours, diapered every and as he few anything, just he didn’t have—he pain or He lacks control of elimination. must it; we he said could just know and didn’t spits fed and he out some food as he can- to, if we wanted phenobarbital give him tongue. his He bites his hands control any good. It him it wouldn’t do but that sounds, cheeks, unintelligible and makes sleep so we put him he’d only out so change laughs and He cannot random. while, he sleep could for little and position, Schnebly his and him Mrs. holds seizures would become thought these upright a half rest hour at time to couldn’t take he said that we worse and him. he grows larger, As he older and go he said that we should of him and care may require He male-nurse attendance. department place- about and the social see expectancy. live out normal life ” ment, him, ‘No, care to.’ but didn’t I told I Schneblys to the referred The doctor child, April through On Mr. children, severely handicapped school for Schnebly (in and next friends di- Mrs. Schneblys on at- instruction gave Schnebly vision and Mr. indi- I), and Mrs. exercising the tending, feeding, and child. vidually petition filed their (in II) division in an insti- placing child The matter of against City hospital asking the Mason Schneblys tution discussed but was damages with connection agreement not to do so. faulty bilirubin tests. Mr. Mrs. and Schnebly personally swore truth of Schnebly up day- Mrs. set Thereafter allegation this regarding the child: “He is home, she attended care center in her where permanently now and will continue to be later children as well. child handicapped completely disabled and Kelly grew employed assistants. some She himself; unable to care for be- and that very mentally. physically little On his ap- cause of invalid and unattractive evidence, de- the trial court basis of the pearance inability to coordinate his scribed the child thus: any way, movements or communicate in he Kelly all of classi- Schnebly exhibits deprived has and will continue to be of all kernicterus; findings cal severe parents, family social contacts retardation; namely, profound mental spiritual physical friends and all of the develop- profound growth failure joys. plaintiffs’ . . . The son’s brain ment; of the cen- profound involvement severely damaged help- he and will be a by quad- system, tral manifested nervous life, less invalid the rest of his being com- nervous riplegia; profound athetosis [a pletely physical pro- unable to control his slow move- disorder marked continual acquire any knowledge.” cesses the teeth due to ; involvement ments] child asked a damages million dollars apparent damage; staining and bilirubin Schneblys individually $500,000. asked deafness, input without rec- whether damage; 19, 1967, bilat- ognition July true On plaintiffs nerve the same eyes; of both filed involvement an amended petition eral nerve and substituted bilaterally, preventing palsy, four sixth nerve divisions. Divisions I and were II side; charac- voluntary turning original petition to either similar to the but named the extremities Drs. Joyce of and teristic contractures Potter as additional defend- limited almost responsiveness ants. body; and Divisions against III and IV were against negligence; Dr. Baker for division III was Dr. Baker for dam- the amounts of by by ages child and division IV was Mr. the found and dismissed Dr. Baker’s individually. Schnebly against hospital and Mrs. cross-claims the and Drs. Joyce and appealed. Potter. Dr. Baker petition, the answering addition to the Dr. Baker contends here that he did not cross-petitions defendants filed various a receive fair trial on the whole case. We against indemnity each other for or contri- have examined the and record that hold bution, by cross-petition such including this contention not substantiated. Dr. against hospital Baker the Drs. Dr. and Baker also makes several other conten- Joyce pleadings and Potter. Various other tions, only following the issues need to filed, including plaintiffs one First, be considered. the claim was of Mr. of which increased the their dam- amounts Schnebly individually and Mrs. barred age claims. limitations at the was time it filed? Sec- jury. The action to be was tried to a ond, damages was the award of the Shortly begin, before trial was the hos- Third, child ? was excessive Dr. Baker’s pital Joyce and Potter Drs. and settled negligence superseding cutting cause off plaintiffs. published This fact was the negligence causal of effect the the newspaper, and Baker local Dr. there- hospital Joyce and Drs. And Potter? upon argued trial that pub- to the court the fourth, if Dr. Baker entitled contribu- licity prejudice jury. par- tion, apportionment what of contribution agreed jury, ties then to waive a should we make ? plaintiffs’ case tried was court Schneblys I. Limitations. filed against claims Dr. Baker and Bak- on Dr. petition amended bringing and substituted er’s indemnity cross-claims for or contribu- in Dr. Baker as a more defendant than two against hospital tion Joyce and Drs. years but than years less five after com- and Potter. alleged mission of the tort. Under our trial, At parties brought out the mat- mentally statute relating to ill minors ters we have related and also introduced persons, against the child’s claim Dr. Bak- expert testimony. substantial er was not barred. Code 614.8. § pleaded, however, Dr. Baker claim The trial court found that the sus- child Schnebly individually of Mr. and was Mrs. $912,124 damages tained of and that Mr. plea, barred this lapse of time. On two Schnebly Mrs. consequen- sustained questions (a) must be considered: What damages tial $132,674. The court also statutory period ap- was of limitation Baker negligent found was plicable consequential damage to the claim respects, including numerous his inatten- Schnebly for Mr. and Mrs. care and child, tion failure to establish earnings during loss of his mi- of the child regimen case, basically, nority? (b) fraudulently Did Mr. Baker course, his unquestioning acceptance Schneblys’ claim conceal Mr. and Mrs. City laboratory readings Mason in the face from them? of the different readings Forest provided (a) legislature Our has in the symptoms. child’s negligence, This found, following portions the Code: proximate was 614.1 cause of the injuries. child’s The court further found brought Actions within Joyce negligent, Drs. and Potter were limited, respectively, after times herein through City hospital them the accrue, afterwards, their causes and not negligent. But the court found that except specially de- when otherwise negligence proximate this was not a cause : . clared . . injuries, as Dr. Baker’s was a superseding Injuries person reputation cause. The court there- fore judgment plaintiffs rendered rights penalty. —relative —statute 718 directly depend which must on someone’s injuries on to founded

Those injuries their inju- personal for creation including reputation, person or damages existence are incidental on both based rights, ries whether relative to consequential injured person’s per to the tort, penalty, for a statute or contract or injuries, eyes sonal are all in the years. within . two legal category.”); of the law in same injuries to 4. Unwritten contracts— Electric, Ry., Basler v. Gas & Sacramento Those actions. property—fraud—other (husband’s action 33, 166 Cal. 134 P. 993 contracts, those founded on unwritten Skilton, injuries ; Sharkey wife) for v. to property, or for injuries brought for to Atlantic, 503, (same); 83 Conn. 950 77 A. cases of fraud in ground relief on the McDilda, 468, Ry. V. & W. v. 125 Ga. 54 solely cognizable in a court heretofore (wife’s S.E. 140 for death hus action actions not other- chancery, and all other ; Durden, band) v. Hutcherson 113 Ga. respect, for in this within provided wise 987, 39 for (father’s S.E. action seduc 495 years. five . . . ; Boston, Mulvey tion daughter) v. 197 178, (husband’s Mass. N.E. 402 action 83 independent nature The of the issue injuries for Heavner wife); to v. Uni in- damage claims is not consequential Inc., royal, 130, A.2d 412 (fol 63 305 Brown, 216 Handeland v. volved. N.J. See ; lows Rex Hutner, infra) Rex v. Hut v. (Iowa). N.W.2d 574 ner, 489, (husband’s 26 A.2d 753 140 N.J. injuries action for leading case); wife — a to statutory lim question of the The Delaware, R., Maxson v. R. L. & W. 112 person’s ato con period applicable itation 559, N.Y. (husband’s 20 N.E. 544 action sequential damage resulting from claim injuries for wife); to Constantinides v. usually injury person of another or death Co., 147, App.Div. Manhattan Transit 264 spouse, arises parent in actions 34 (father’s N.Y.S.2d 600 action in for and the asking expense for the of care juries ; to Black Eastern child) v. Penn or of the loss of of a minor child services sylvania Ry., 273, 257 Pa. 101 A. (hus 644 that such spouse. Most courts hold Desj band’s injuries wife); action for damage claims founded consequential are ourdy Mesrobian, 146, v. 52 R.I. A. 158 person” injured “injury on ; Memphis 719 (same) Blackwell v. Street spouse and fall within or deceased child or Ry., 516, 124 (mother’s Tenn. 137 486 S.W. two-year corresponding to our statutes action injuries ; for daughter) Barker to actions “founded relating subsection Saunders, v. 548, 116 W.Va. 182 S.E. 289 supra. person”. injuries 614.1(2), (mother’s injuries action for to infant consequential actual foundation child). See 108 A.L.R. Annot. 525. claim, which it would not damage without exist, of the child injury or death A few decisions are contra. Illinois in recoverable on the con spouse. The items termediate appellate courts have held that merely sequential damage claim measure such consequential damage actions are not “the and do not constitute damages personal injuries, early since the case upon cause of action ground or Chicago, Waller Ill.App. 209. See Grill, suit is Emmert v. founded.” however Airlines, Hockett v. American 690, numerous decisions 693. Some Inc., 357 F.Supp. 1347n. 7 (N.D.Ill.) Burstein v. United States holding so (stating that principle announced Co., (2 (husband’s Cir.) Lines F.2d the New Jersey court in Hutner, Rex v. ; Up injury wife) action Ravetz v. supra, is “a logical rule”). more The New john Co., F.Supp. (par (E.D.Pa.) Jersey formerly held ap Illinois anti arising from defective ents’ action pellate Fryer courts hold. Holly v. Mount Bahumes, ; given child) Weaver v. biotic Co., Water A. But F.Supp. (N.D.Cal.) (husband’s N.J.L. “Any damages Fryer injury action for case was overruled in Rex wife— 489, light we in Hutner, 140 A.2d 753. When construe these the of supra, 26 N.J. other, referring formerly generally each one to took York court also The New courts, inju- rights persons personal the appellate of and position of the Illinois the ries, rights and the under con- Washburn, 509, but that other to v. 34 Hun Groth injuries tracts and to are holding in Max we was overruled the case property, R., fairly to con- Delaware, supra, brought naturally and the L. son v. & W. R. clusion, 559, the bar suit at comes within N.Y. 20 N.E. 544. spirit scope the of the former rather The statutes of limitation in some states than of the latter clause of the section. “bodily rather injuries” use the words than The court the Sherman case in followed “personal injuries.” jurisdictions fewA Emmert v. Grill, 39 Iowa 690. Section “bodily injuries” hold that term is less the of 2740(1) the was then Revision of 1860 § comprehensive injuries” “personal than of the In 2529(1) Code of 1873. Emmert consequential damage does cover damages a wife sued for her arising from Latz, Seligman claims. Cliff v. & 38 F.2d injuries resulting to her the husband from Cir.) (6 (applying Corp Ohio law); liquor sale of to him the defendant. Boyer, 233, man v. 171 Ohio St. 169 N.E. two-year period This court held applied the 2d apparently 14. Indiana follows the ra pages stated at 692-693: tionale Ohio decisions. v. Graf Co., 249, Transit 220 Ind. 41 N.E.2d 941. The case of Sherman v. The Western In Massachusetts this result is reached in Co., Stage supra, holds that the founda- implied legisla motor vehicle cases the per- tion of the in such is the action cases in compulsory tive intent found insur injury sonal to the who kill- individual Hudson, ance statute. Cormier v. ed. .. . 625, applied Mass. in 187 N.E. Bartlett apply principles When we these to the Hall, 288 Mass. 193 N.E. 360. In us, that, case although before we find courts, however, line with most the Massa gives statute wife or child chusetts “inju court holds that words right against person action who ries person” general to the in its statute of causes the intoxication of the husband or consequential limitations cover damages. father, by liquors intoxicating sold to Mulvey Boston, supra, 197 Mass. law, yet him in violation of the founda- N.E. 402. tion wrongful of the action is the act of causing The Iowa the defendant in decisions in the intoxication accord with father, per- the rule the husband prevailing or which is a most states. Subsec- injury sonal tions 1 and 3 of to him. . 2740 of . . the Revision of § 1860contained the substance of subsections It is true that the second section of present 614.1 of the Code [dramshop] (chapter 47, statute which we quoted have (except the words of 1862) wife, Laws provides that the injuries “including rights” relative etc., may damages injuries recover present statute). a husband support, person her means of proper- and father damages sued for his arising ty, by any caused person, intoxicated child, the death of his wife and only etc., this is purpose for the Co., the case of Stage Sherman v. Western measuring damages, does not 22 Iowa 556. This court held the action injuries ground constitute such “injuries founded on person” to the upon cause action suit is subsection 1 of (now the 1860 Revision founded. 2), subsection two-year period and that the applied. therefore The court considered legislature The reenacted the entire subsections 1 of the 1860 Revision statute of limitations in the 1897 Code. page stated at 557: Evidently codifying for the purpose pro- Emmert, question which of those two legisla- On rule of Sherman and the six- applied, the court held visions two-year subsection ture added provision applicable injury since the words, injuries month relative “including read, resulted from a defective sidewalk. the subsection to rights,” causing father’s person however that the injuries was clear “Those founded on on the consequential damages to were founded including injuries relative reputation, or 601, tort, personal injuries, page saying son’s at contract or rights, whether based on years. at penalty, within two 829: or for statute N.W. 1897, (now 614.- 3447(3) ...” Code § § right plaintiff’s That of the foundation in a case arose 1(2)). injury is so clear of to the action was son damages arising for her from wife sued sup- authority in need be cited no of caused de-

the death her husband port proposition. But see Sher- of the liquor him. sale of to O’Banion fendant’s 556; Iowa, Stage Co., man v. Western Garmo, 139, 96 De 121 Iowa 739. v. N.W. Grill, Iowa, 690. Emmert v. “injuries to This court construed relative consequential rights” to cover the wife’s its this court confirmed Subsequently two-year period. rights” the damages applied holding “relative O’Banion 141, at page plaintiff damages The court stated N.W. to a consequential cover arising injuries to another. Chase v. 740: from 1361, 1363, Winterset, 214 N.W. 203 Iowa is also remember that the It well to 591, compre- attempt a (“We need not is foundation the action the sale of of rights, hensive definition relative liquors, and intoxicating the the conse may as the such arise out of include husband, quent intoxication of the occa relationship wife, master husband and plaintiff. sioning damages to The intox ward, servant, and simi- guardian injury resulting ication was the direct relationships.”). lar li wrongful selling from the act of the it, quor person drinking question to the recently such the We considered 211, is injury of action. That to again Figge, the cause in Clark v. 181 N.W.2d wholly is Em consequential. phrase wife the 214-215 We held that the (Iowa). Iowa, Grill, Paragraph mert 690. injuries rights” v. to cov- “including relative 3, 3447, person 614.1(2)], injuries of the Code ers harm related to to the [now § § period expressly reputation, provi- the within which two-year limits or under therefor to actions be maintained sion. stated: We years: injuries two “Those founded on phrase “rights In substance the means person reputation, in including to the or injuries person repu- to to or relative juries rights, whether relative based Hartford tation.” Accident & Indem. Cf. tort, for a pen on contract or or statute Co., Dickey Mfg. Clay Co. W. S. years.” alty within suit is two This 411, history 24 A.2d The Del.Ch. rights on an to the injury based relative of the subsection bears out this view. (Italics added.) . . . wife. subsection, Previously far as ma- so question applicable here, spoke only injuries limitation terial period Rap 1873, next person arose Palmer v. Cedar reputation. or Code § ids, 165 Iowa dramshop arising 146 N.W. 827. There un- 2529(1). In a case consequential damages subsection, father sued his sought der that a wife recov- from arising injuries inju- minor son ery damages resulting of her caused sidewalk. In addi brought defective ries to her husband which were present two-year provision tion liquor, selling about him defendant’s personal injuries, the statute at time damages and this held the court wife’s provided a person personal six-month limitation for related to the so husband’s injuries injuries arising years. al from defective streets. as be barred two Grill, Emmert 690. When 80 A.L.R.2d 368. The general rule enacted, subsequently is period Code of 1897 was tort cases that the of limitation the words “includ- legislature added commences when tort is committed. 51 ing injuries rights” relative after Limitation Actions 146 at § Am.Jr.2d “injuries person reputa- words to the 715; 54 Limitations of Actions § C.J.S. 1897, 2447(3). tion.” Code Thereafter rule, 205 at however, 216. To this two § ex- applied this Emmert ceptions rule on developed have in the medical rights” basis “relative in another malpractice field, both founded on the un- Garmo, dramshop case. O’Banion v. De awareness of plaintiff injury of his 121 Iowa 96 N.W. 739. of its cause. exception Neither ap- proved by all exception courts. One Code, present Thus 614.1(2) predicated on when physician fraud: here, so far we are concerned with it fraudulently injury conceals the itsor cause defamation, bodily covers torts causing or, knowing the facts as to injury death, injury harm related cause, fraudently them, fails to disclose wrongs. those period begin does not to run until plaintiff review of or in This the authorities makes discovers the exercise of due care plain con- should discover the injury that most hold actions for or the courts arising injury cause of it. sequential damages Underlying exception from the this is relationship the close “personal or death of another to be for trust confi- injuries” patient physician. under similar to our dence between statutes A provision majority two-year this 614.1(2), in that decisions which consider the cases, early question approve exception. held in so this g.E. Ta Clifton, Ga.App. 768, bor legislature holding by adding codified such v. 63 12 S.E.2d “including injuries rights” (surgeon, 137 employed to relative for appendectomy, secretly subsection, two-year peri- fact and that the withheld he also removed right tube applicable ovary); Thompson od limitation Mrs. Mr. and v. Bar nard, 238, 142 Schneblys’ years. claim is therefore 241 two S.W.2d (Tex.Civ.App.) (“If respective doctors knew at the (b) fraudulently Did Dr. Baker conceal continuously time and after the incision Schneblys’ Mr. and from Mrs. claim gauze sponges closed that had been fraudulently They pleaded them? that he permitted negligently pa- remain in the concealed the of the child’s nature condi- abdomen, tient’s and continued to treat her tion until the time was too late for them to days for fifteen thereafter and then dis- period They sue within the of limitations. charged her as sufficiently from recovered appear however to have retreated the operation to return to her home with- position by this in stating their brief that disclosing out such situation and without “they subsequently learned in ear- 1965 and suggestion or advice to further treat- ly in dam- 1966 he had suffered brain ment, it would seem that such facts expired age” years two in —the June pertinent in determining whether begun.”); fraudulent concealment had Schneblys In this court claim Morrison, 139, Acton v. 62 Ariz. 155 P.2d fraudulently Baker or failed to concealed (dentist patient 782 did not tell left he bro- divulge it was revealed until jaw portion fraudulently ken subsequent discovery drill deposition in a of Dr. patient stated would have trouble); no Irish. Miller, 605, Moses v. 202 Okl. P.2d 216 979 (surgeon falsely gall stated he removed The issue of whether andMr. bladder); Hargens, 520, Hinkle v. 76 S.D. Schneblys’ Mrs. is requires claim barred 81 fraudulently N.W.2d 888 (surgeon con- application consideration of the stat cealed fact he surgical left malpractice. ute of needle embed- limitations in medical 1317, patient’s See Annots. 74 A.L.R. 144 A.L.R. ded back); Hendrix, Baker v. injury or of tions —unawareness 37, (surgeon S.E.2d 126 W.Va. holding stat- caused it. Decisions pa what sponge fact of fraudulently concealed situa- not involve limitations did run approvingly ute of adverted body). We tient’s patient did not know exception in tions which concealment the fraudulent Indeed, exceptions them- Falls, the two facts. 189 N.W. City of Cedar v. Gruener stat- qualification contain this part of the selves is it We hold (Iowa). 2d 577 —the plaintiff run while the ute does in conceal law, fraud is whether happened. blamelessly unaware of what applica disclose, as an failing or in ing States, (9 F.2d 578 v. Brown United concealment general fraudulent tion of the Per v. California Cir.); Winkler Southern Peterson, N.W. Pride doctrine. See Cal.App.2d Group, 141 Medical manente (Iowa). 2d 549 Waxler, 738, 728; Hemingway v. P.2d as the dis- exception, known 68, 699; Bathke v. Cal.App.2d 274 P.2d courts, accepted by fewer covery rule and 640; Rahn, 116 P.2d Cal.App.2d exception this step farther. Under goes a Mouradian, (Fla. 100 So.2d 70 Buck v. concealment or apart 258; from fraudulent Warner, Ill.App. App.); Mills v. physician, when the by the nondisclosure Crandon, Tabolsky 259 Mass. “inherently unknowa- injury or its cause 657; Berg, 336 Mich. N.E. Kroll v. Vanden does not com- period of limitation ble” 897; Joseph 57 N.W.2d Wilder v. St. plaintiff discovers mence until 651; 42, Hays Hospital, 82 225 Miss. So.2d should dis- of reasonable care the exercise Hall, (Tex.Civ.App.). 402 v. 477 S.W.2d injury or 61 cause. cover person can have held that “a We ourselves Am.Jur.2d g. Surgeons 183 at 310. E. course, Physicians concealment, & if he not claim States, F.Supp. 306 1063 United Toal v. and, plaintiff knowledge,” “That has not know radio- (D.Conn.) (plaintiff did the details of the have been unaware of material, injected spinal myelo- opaque support claim does not evidence to her ; brain) Dobbins v. gram, traveled to City of change the result.” v. Ce Gruener 1, Clifford, N.Y.S.2d 743 39 A.D.2d 330 Falls, 577, dar (Iowa). N.W.2d damaged pancreas that (plaintiff "unaware Robb, Ogg also 181 Iowa See v. spleen); Ruth during operation on v. N.W. 660, 453 P.2d 631 Dight, 75 Wash.2d here, testimony The facts from the left in ignorant foreign article (plaintiff Schneblys themselves, they are that were surgery). approved the

body after We only injured was not aware the child gen actions discovery negligence rule persisted relying also knew Dr. Baker Griswold, erally in Chrischilles City readings on the Mason bilirubin in the 453, 463, un (plaintiff 150 N.W.2d contrary face of the Forest City readings design until water of defective aware worsening and the child’s condition. now believe through ceiling- dripped —-“We that a cause action rule to be better Schneblys injury, As to the child’s until not accrue on does based intimately familiar condition with his has that he plaintiff has fact discovered throughout. days they From the first rea injury by the exercise of suffered knew of the' bilirubin levels of 39 and discovered it diligence should have sonable and of the lethal effects of such levels. rationale of the dis persuaded and are hospital appeared the child to Mrs. adopted.”) covery be See doctrine should Schnebly refugees like one of those with Rankin, F.Supp. (S.D. Bryant Although that dead lost born look. on discovery exception Iowa). The also he was released to them until June part of Iowa law. therefore July continually. Schneblys 9. He cried damage.

were worried Mr. about brain however, Schnebly Schneblys’ difficulty, confirmed the child’s deafness in excep- for the the foundation fact two firecracker incident. when Dr. child vomited fed. Irish child appeared Schnebly worse to Mrs. unsuccessfully tried various City, medicines. was taken Mason Irish Dr. re- Schneblys Baker, took ported the child to Dr. who Schnebly back Mrs. that the test prescribed Regarding 11; Atarax. dam- brain there was evening Schnebly that Mr. age, years Dr. Baker said it would ten saw jaundiced condition of the child they they before would know and then while at City; Mason day (June the next would not know the extent. Thereafter 11) Dr. reported Schnebly Irish to Mrs. cry except' the child continued to for a test was 9.9 and that Dr. couple Schnebly weeks. Mrs. testified the Baker going rely it; was day child did never look at them he like knew Schnebly child, Mr. got the who looked anything. “like a Chinaman” appear and did not well all, and Dr. Baker told Schnebly Mr. Schneblys City. took child to Iowa baby that the was very jaundiced quite explained A doctor that the al- child would rigid “but we rely on going ways require complete care that his test”; reported afternoon Dr. Irish spells blackouts, were brain He seizures. Forest City reading 39.8 to Mrs. Schneblys referred to the school severe- Schnebly, discussed what could be ly handicapped. Schneblys institu- refused done Schnebly and Mrs. mentioned Roches- tionalization. Schnebly up day Mrs. set ter; the next morning (June 12) child th$ care for the handicapped child and other worse, Schnebly Mrs. was “about out period children. Within the limitation worry,” her mind with Irish Schneblys commenced action against took City; the child back Mason after a hospital alleging that the child’s brain was there, test faulty reagent was dis- severely damaged. According their own obtained; covered and a reading of 40 was Schneblys opera- testimony, knew the basic returned, explained Dr. Irish this to Mrs. tive injury. facts about the Schnebly, and told her Dr. Baker was not going to do after anything As the test of negligence, to Dr. Baker’s is not this until Dr. Irish “ranted patient a a and raved and case of who is unaware raised roof.” the problem phy- medical or of the acts of the Schneblys regularly kept sician. each oth- Schneblys’ Under about testimony Dr. informed; er they the Rh were aware of role, they operative Baker’s knew the basic incompatibility problem implica- and its facts could the of and make most them. ; explained, according tions Dr. Irish think did We Dr. Baker not have to tell Schnebly, Mrs. a that with level bilirubin Schneblys, before the statute of limitations certainly of to 25 there most would be run, negligent would that he and that was some from damage, brain 25 to there they against cause of had a action him. damage, would serious from 30 to be and usually coma the child went into a or plaintiff which a is This is not case in died; Schnebly of the he informed Mrs. Schneblys’ individual claim was unaware. bilirubin; child’s of he told her initial level barred limitations. morning (June of its of next level nine the rise; 9) fast Mrs. and that this was Damages? Schne- II. Excessive Since Schnebly was worried about the wait be- barred, is we con- blys’ damage own claim the fore would take child to child. award the only damage sider ho City; Irish told Mrs. that afternoon Dr. granted child these The trial court risen 13.6 and Schnebly the level had $385,440 therapy damages: for care and yellow and less she was observed child $226,684for loss age, after he of becomes active; “just Schnebly Mrs. evening that becoming age, capacity after earning wrong, child something knew” did was person, $300,000 injuries and to the eat, her the level not and Dr. Irish told disability. pain suffering, total 17; (June morning 10) the the next standing position be- upright an erate grounds four stated This as of an atonic neck reflex. Also cause for exccssiveness setting verdicts aside along Lines, Inc., gains weight child and size Truck Schmitt Jenkins age compound- problems his will be : with 632, (Iowa) N.W.2d ed; bathing, feeding mov- those of aside or not set will be a verdict In fact home; his within and ing him out of is, exces- flagrantly (1) it altered unless eventually eliminate his mother size will out of rea- inadequate; so (2) or sive or may lifting handling him and sense or the conscience to shock son as Dr. require nursing male attendance. presumption or raises justice; (3) there Dunphy did believe [a witness] prejudice passion, the result that it is problem be a in terms of sexual motive; (4) or other ulterior sensory in- low attractions because his support. in evidential lacking up poten- put, he it is pointed that problem. eventually at tial He could damage award that a may add We attendant, require more than one times aside, wrong course, if be also set family Dunphy point- or other. Dr. also Trial applied. 66 New measure C.J.S. mother, that for her as ed out own at nn. family’s Kelly’s as and even well her think appear, we which will For reasons welfare, totally be left to the care “not successfully contend Dr. Baker cannot this relief and relief she child without exist, under- nor do we grounds from, anticipate can trust and results He does they exist. he contends stand day-care program this such contend, award however that child’s up, receiving.” child is All of this adds support (b) does lacks evidential (a) testifies, Dunphy reasonable measure. proper not reflect certainty permanent to- medical life, “ad tal condition for the rest of proofs, examining the (a) After infinitum; forever,” and total and con- lacks say the child’s award cannot we every every tinuing day for care hour of do better support. cannot evidentiary We period the same of time. . findings in quote trial court’s than describing the child connection. After this open frequently. His mouth tends quoted, previously language we have Regular manual exercises are adminis- these statements the trial court made day- tered to him nurses supported the evidence: daily care he is from 8:00 center where diapered every to A.M. 4:00 P.M. He is requirement contin- Consequently, of a few hours and lacks control of natural at all total care uous and unbroken exists Kelly functions. Nor is to fend for able and has had re- times He and hours. eating. himself matter of He has care; he would good without it ceives spoon-fed by to be attendants. It is com- arms and of his have severe contractures plicated by tongue his lack of control. in the legs, he will have contractures and opens his When mouth to food receive regimen daily given he is future unless tongue his causing part is thrust out of therapeutic prescribed regular ex- and of each ejected to be mouthful within by manipulation of his limbs. ercises only part the mouth with He swallowed. therapy must be good health For his and gags tolerating chokes on solid foods his of life. for the remainder continued only strained, soft and blended foods. contractures, apart from his Preventing liquids partly are also swal- Juices the ease appearance, is with concerned spit and partly lowed out His taken. handled, he be moved can with which meals, intervals, at four hour and each and handled and about, placed a chair up take half an hour of time. fre- fed, are rendered easier. He of which all ever tol- expected this child will quently jaws It’s not works his biting in a mo- ground $282,684, tion so his teeth are to the less estimated income of taxes gum During years $56,000,or, first line. three earnings $226,684, net of lost. his he of life would bite his hands and

evidently the hurt more it the harder he care necessary His therapy, limit- They bit. forcibly would have to be re- ed to his waking, or day, sixteen hours a He makes moved. audible but unintelli- reasonably must be estimated have to gible laughs sounds. He also at times past been in the and continue inbe to when he is playing and sometimes at hour, the future an six- times $2 quite well, sleeps random. He needing hours, teen sixty- times three hundred ordinarily attention but once twice at days, thirty-three five years, times adult night. positions He is change unable to ages twenty-one through fifty-three, to- sleeps while he so his usually mother $385,440 tals therapy. for such care holds upright him half an hour to for rest At him. the time of trial he

weighed twenty-one pounds, having Kelly Schnebly’s damages injuries for gained pounds years. three the last three person, pain suffering and to- disability tal quite cannot be measured in It point say is needless at this way damages herein have been Kelly’s injuries catastrophic. are Born damages ascertained. Death in- perfectly healthy an avoidable con- here, volved it can persuasively but dition, defendant’s has inflict- contended that the devastation dealt upon ed life-long him of disaster death is not greater less but is than greatest possible Any magnitude. nor- damages we find These here. are found mal enjoyment by Kelly Schnebly of the to be in the of reasonable sum no less existing things, order of has been com- $300,000. than pletely overthrown. support evidence contains He will never develop be able a ca- specific dollar for the awards for amounts pacity for work. he is As a member of therapy earning care and loss of family high average of least achiev- capacity. monetary ers, No evidence it is range within the of reasonable amounts was for the court’s allow adduced anticipation Kelly, believe as normal $300,000 injuries person, ance of adult, child and have achieved pain suffering, disability, and total entered the labor force with at least the incapable such pecuniary items are mea equivalent high school education. surement witnesses and must be left Plaintiff has damages established the fact-finder, judgment sound herein a preponderance of the evi- Lange, based Carradus evidence. damages dence. The in- evidence ; (Iowa) Chica N.W.2d Jackson Marberry, cludes that Charles E. Pro- go, M., Ry., St. P. & 238 Iowa P. Finance, fessor College of Busi- N.W.2d ness University Administration Iowa, adopts which the Court as reason- and pain an allowance for Was able. . . . ( here? suffering warranted the evidence earning suffering” is item capacity through loss of “Pain and of course an

[H]is ages twenty-one twenty-four damages of 22 Dam to are de- itself. Am.Jur.2d 155, 155; $12,864; ages ages twenty-five termined 105 at 106 at 25 to § § C.J.S. thirty-four, $91,010; 812, to at Both ages thirty-five Damages 62 at 63 815. § § in $98,080; past pain suffering forty-four, and, forty- to and future and are ages mentality fifty-three, is $80,730; resulting five to volved here. While child’s close, lost, greatly question gross earnings ages twenty-one reduced and the is through sixty-three we years, of believe that under the evidence [sic] 726 reasonably

fact-finder find wages could that the er evidence of earnings, and as the experience pain, at consciously Anthes, child does trial court did here. Anthes 258 v. great 260, least on environmental Iowa stimulation. 139N.W.2d 201. Heym, (3

See Frankel v. 466 F.2d 1226 Another item damage recog of Co., Parke, Cir.); Tinnerholm Davis v. & nized for disability the law is of mind (2 Cir.). 411 of F.2d 48 The award body, impairment physical and of func $300,000 pain and was not for suffer- tions, deprivation powers. and of mental ing alone, ask item and Dr. Baker did not g. Hoskins, 225 See e. Yance v. enlarged to findings to show have (disability arm); of Smith N.W. for item rule sum allowed itself. See Mommsen, son 224 Iowa 276 N.W. of 179(b), Rules Civil We Procedure. (back disability). See also 22 say sup- that the cannot evidence does not Am.Jur. 171; 2d Damages 118 at at port $300,000 § § an of the items of award for 25A at Damages This 185(4) 224. injuries person, suffering, § pain to the and C.J.S. deprivation item is for the of mind full disability, altogether. and total body, and separate apart impair and the amounts allowed total- hold that We ment of earning capacity. It is for this $912,124 ing supported are substantial item that the apparently trial court allowed Actually, objection evidence. Dr. Baker’s damages “inju when it made an award for is rules of law allow such dam- to which disability.” person” ries to the and “total ages, evidentiary lack rather than of for support awarded. amounts finding loss the amount of physical disability, the for such or mental re- arguments (b) Two Dr. Baker’s of duplica fact-finder must of course avoid re- garding proper damages of measure damages impairment earning of tion for of quire relates to the consideration. One capacity. Overlapping damages not $226,684 possible overlap in the awards of permitted. Damages 3 at 630. § $300,000. for The first of these was C.J.S. Damages at See § earning capacity loss of second Am.Jur.2d jury this a case an instruc Were without person, pain injuries for duplication avoiding tion on of such dam disability. suffering, and total We problem. ages, we would have different place suffering pain the matter court, the parties But tried this case to the overlap exist aside, as no find reading and our close of the court’s overlap Was there an between that. ings the court did leads us conclude that $226,684 ca- earning award of for loss of anything impairment for of earn allow $300,000 pacity and the portion ing capacity injuries for its allowance injuries person was for and total person disability. and total disability P argument re Baker’s injuries, personal for In tort cases damages has to garding the measure of do capacity is impairment earning of future present of al ascertaining the value damage. item Carradus distinct damages. ; future Most of the lowances for Am. (Iowa) Lange, N.W.2d damages child’s occtlr the future. will 130; 25A Damages 89§ C.J.S. Jur.2d therapy loss of The items for care and impair 230. Such Damages 185(6) at earning period for present capacity wholly by the “is to be measured ment age. The item general after the child becomes impairment value of the loss injuries person, pain suffer to the wages earning capacity, than loss rather past ing, disability and fu occupation.” specific total earnings in a 581, 585, damages past period as 118 ture to Thomas, Iowa v. 254 Grant — pe the tort the trial and future for determining the 545, 548. N.W.2d may riod thereafter. loss, of the fact-finder consid amount

727 mathematically damages ture must be reduced to its did not trial court The present value”). damages back to discount future by the trial present. process applied The this While court and a number of other by for the award may be illustrated court courts have past held that inflation be beginning the child therapy when care and present comparing considered in verdicts on the majority. Based evi- attains previous ones, with fewer have dealt courts present dence, the trial court found question with the of inflation. future be two dollars for care of the child to cost Most of the courts which have done so that rate per Multiplying hour. have held damages that future are to be after he becomes hours the child’s life of ascertained on present price the basis of age yielded $385,440. But based on the of meaning in a case like this one levels— Mar- testimony of the Charles witness E. anticipated higher prices future cannot rate that the berry, the trial court found power to offset earning money used in the child will increase future for care of paid presently. Compare Heym, Frankel v. years increasing price levels because of Eaton, ; Murphy 466 F.2d (3 Cir.) 1226 v. approxi- that the rate of increase will Towne, Inc., Yale (6 Cir.); & 444 F.2d 317 money. mately equal of return on the rate In re Petition F. Corp., of U. 436 S. Steel Hence, held, and the the court the increase States, 2d (6 Cir.); 1256 Williams v. United child is return each other and the offset 435 (1 F.2d 804 Sleeman Cir.); v. Chesa $385,440 the full entitled to now. peake Ry., & (6 414 F.2d 305 Cir.); O. hand, McWeeney York, R., argues, v. New N. H. Baker on the & H. R. (2 ; 282 interest, $385,440 Cir.) 34 received now F.2d Armentrout v. Vir that at 6% ginian Ry., F.Supp. $923,718,subject income 997 (S.D.W.Va.), will increase to rev’d taxes, grounds, (4 on other the child becomes 166 F.2d by the time ; R., peri- Raines v. Ill. nothing subsequent Cir.) New York R. age, say C. App.2d294, 895; expectancy. 263 N.E.2d Zaninovich v. during life He od the child’s Airlines, Inc., American 26 A.D.2d argues similarly as to the awards latter, N.Y.S.2d Pacific Co. v. $300,000 $226,684 ex- Southern —the Zehnle, approximately (9 163 F.2d 453 Brooks v. ample, Cir.); increasing 6% ; States, F.Supp. (D.S.C.) United $3,400,000 expectancy child’s during the Elliott, Beaulieu (Alaska). v. 434 P.2d 665 life. principal argument allowing The con offsetting process of discount This up sideration of inflation is that an future evi anticipated (if shown inflation price probable ward is and that movement system have change the we dence) valuing damages present future terms generally to this followed time. With prices fully compensate does not the vic treatment, an il as item of future care principal opposing argument tim. The lustration, generally this time we have to specu that future inflation or deflation pe for the future ascertained the total cost lative, person injured and that the can riod, prices, and then dis present based any recovery equities event invest his present value. that cost back to counted such as land and thus have the benefit adhered rule has been “present value” both inflation and the income. damages. by this future E. appear in Iowa We to have crossed g. Thomas, 254 118 N. Grant Rubicon on this impaired issue Schmitt v. reference to (with W.2d Jenkins Lines, Inc., (Iowa). Truck ; City Keo N.W.2d 632 earning ability) Wardlow fu- One of issues there was Schmitt’s kuk, (with refer (Iowa) 190 N.W.2d earnings ture had he lived. Professor death). wrongful See ence to Am.Jur. here, Marberry, pre- 140; the same witness as Dam Damages 96 at 25A 2d § C.J.S. pared future for fu an exhibit 14 which showed (“An ages 194 at 259 allowance damage and The amount of was also estab- earnings pro- with inflation increased contribution, in ductivity economy the future tak- To have Dr. Baker lished. only en then that into consideration. He discounted needed to establish the laborato- ry’s concurring higher earnings present negligence legal value of a such was $307,469 $141,586present alleged damage. in contrasted cause of the Plaintiffs —as earnings in pleadings value future without their effect before for Schmitt’s which were considering hospital and future inflation increased settled with the Drs. productivity. Joyce negligences and Potter the Four members of this court that approved judge the use exhibit One the several defendants concurred. We 14. expected part remaining fact-finding, in the would have took no case. The such dissented, legal wrong readings four on this the from the but not issue. bilirubin City laboratory triggered this Judge Stuart stated for the dissenters that whole readings Marberry’s assumption tragedy wrong aof were forth- Professor 7% years coming fi- laboratory advance for most was incorrect but from the down to the project- “I nal But trial disapprove do not of the use of afternoon. the court found ” said, ed negligence during income. . . . He “I that the of Dr. Baker also superseded hours adequate approximately believe there was foundation last 24 laboratory’s Essentially, the opinion negligence. cause a that inflation would par- salary year problem in in this our here whether increase is to determine per 4% position.” support finding. ticular at 667. the evidence will N.W.2d judges appear agreed, The to have there- first consider Dr. Baker’s We fore, that future inflation be consid- superseding was contention that cause if shown Future in- ered evidence. pleaded, court in effect in that the trial here, was flation shown evidence unpleaded jected last clear chance. We that the the evidence further showed think this contention takes a narrow too inflation rate and discount rate would off- superseding Dr. Baker was view of cause. Schmitt, set each other. Professor obliged allege prove that the labora Marberry damages by increased the future tory’s negligence proximate was cause of the rate inflation reduced such in- damage. Long, Allied Mut. Cas. Co. damages by creased the discount future For 682. con N.W.2d process Here rate. he testified such cause, proximate to be a two factors duct unnecessary since the two rates were exist: must be a substan must conduct opinions in standoff. Under two no producing damage tial in factor Schmitt case and the evidence rule of law exist which relieves the must case, present process adopted liability because of the manner actor permissible. trial court was damage which the Restate resulted. damages the child hold the awarded We ment, 2d, Torts One such “rule of § are not excessive. Id., superseding d law” cause. Comment

(“These 435-461.”); rules stated §§ (superseding Superseding cause). When Dr. III. Cause. alleged proximate Baker al under cause he thus superseding cause arises question of leged factors, indemnity both of these their and under cross-petition for Dr. Baker’s hospital Joyce denials the and Drs. the circumstances contribution. Under dispute for he Potter could either or factors. indemnity, both here, he could not have superseding We hold that cause was on his cross- negligent. But himself was integral case as an part estab the issue Baker claim for contribution Dr. proximate found, Doser Interstate cause. See trial lished, and the Co., (Iowa); Power Joyce and Potter N.W.2d and Drs. hospital Inc., Lines, of Schmitt v. Truck negligent- will call Jenkins —we laboratory’s (Iowa). N.W.2d negligence.” “the those three approximate cut the last negligence Did Dr. Baker’s hours before the transfusion, laboratory’s beginning causal effect of the that near the the the off frequently period has 24-hour negligence? This court Dr. Baker was informed of proximate reading, rules applied cause 39.8 bilirubin that he had been cited previous American Institute. informed of the discrepancies as restated Law be- Co., 208 tween the g. City Pose Roosevelt Hotel N. Forest and Mason E. Daly (§ 431); readings, v. Illinois (Iowa) that when he saw the child he W.2d R., 758, 335 must signs Central R. 248 Iowa 80 N.W.2d have observed the clinical Sandven, disease, the advancing obstinately (§ 432); Calkins that he 682, 434); accepted Federated (§ City readings 129 N.W.2d the Mason over Implement City, Hardware Ins. Co. v. those of Mut. & Forest that his conduct in so (§ Dunkelberger, (Iowa) doing was extremely not normal N.W.2d and was negligent, “le speak in terms of he 435). rules did not take immediate Those proxi traditional action gal” pass during rather than but let crucial hours cause Restatement, 2d, Torts which the child mate 430. sustained irreversible brain cause. § damage, substantial is not a and that If an actor’s conduct such conduct him con- such con stituted bringing damage, superseding overriding in about cause factor laboratory’s negligence. and that ends the legal duct is not a cause inquiry. But if an actor’s con 431(a). § particular Under intervening facts con bringing in is a factor duct substantial may manifestly duct be so in superseding or forces later damage but conduct about prior nature as to off liability neg cut supersede which law considers occur ligence as a matter of or, law on the other conduct, actor’s then also the the actor’s extreme, may fail as a matter of law supersed legal is not a cause—“A conduct superseding constitute a cause. Between person or an of a third ing cause is act the extremes are the in cases which the pre by its intervention other force which question is one of fact. Brewer v. John harm being liable for vents the actor from son, 556; 247 Iowa Re N.W.2d his antecedent to another which statement, 2d, Torts Comments b § bringing in about.” is a factor substantial c; Negligence 198 at § Am.Jur.2d 440. § 569; Negligence 65A 264 at 926- § C.J.S. 927. may Intervening or forces conduct actor’s liability may not cut off considerations which are Various case, the actor’s prior given conduct. In a important, although necessarily control laboratory’s negligence) (the conduct se, ling per in determining whether inter negli Baker’s intervening (Dr. conduct vening superseding is or conduct is not a concurring le as gence) may regarded be cause are listed in 442 of the Restate § causes, cir under other gal while ment (e) of Torts 2d. Considerations intervening conduct cumstances particularly (f) are relevant here: superseding may found to be forces intervening (e) fact liability [T]he actor’s terminates the cause which person force due to an act of a third original for the conduct. § wrongful which is toward the other [the per- subjects the third such apparently child] trial believed The him; liability son laboratory’s negligence was a substan- damage, bringing about the tial factor culpability of a (f) degree of [T]he otherwise hardly found and he could have person wrongful which act of third laboratory wrong readings from as the intervening sets the force motion. the ultimate in motion for set the forces expands (e) child’s Section 447 on considerations that the the court held result. But situations, as we have during (f) such damage brain occurred irreversible here, intervening again railway injuring plaintiff. act or omis- subsequent propping up The section is that the negligent is a asserted sion one. superseding typical is a negative, but we was a cause. Such coached in believe ques- superseding The sec- involving the reverse be relevant. case cause also things in- among other that an tion. tion states supersed- not tervening negligent is a act however, Here, the of the un- on basis intervening is act a nor- ing cause if “the evidence, disputed we have several distin- consequence mal of a situation created is guishing original factors. that the One actor’s and the manner the conduct laboratory, actor, City in fact the Mason extraordinarily neg- it is is done not reports its relied intended that should be token, By ligent.” the same 447(c). on. is Here This not so the usual case. a normal intervening that an act is not laboratory’s purpose the the re- very negli- consequence extraordinarily and is ports guidance physicians. was Dr. gent superseding it is a tends to show that laboratory very Baker the thing did the cause. expected reports; he he with re- would do the child was first time The Second, on the of the lab- lied force them. hospital, accepted brought to the Dr. Baker oratory’s by repe- negligent acts continued City reading the the Mason bilirubin over again tition the is not down to last. This may then have City He reading. Forest laboratory the did usual The not case. ir negligent. Had the child sustained been stage merely report set the one on the time, Mason damage at that the reversible first day, dissipated of which the force put laboratory hard City have been City reports later in from Forest came was not conduct show Dr. Baker’s signs the clinical The labora- worsened. consequence a or was extraordinar normal tory submitting wrong negligently kept re- ily But evidence sustains negligent. the ports kept rely- negligently and Dr. Baker finding that the irreversi the trial court’s ing negligences on The two them. the ble did not occur until last damage aspect operating concurrently. Still third hours, informa after Dr. Baker had more usually present nature of not is critical adhered to the Mason tion nonetheless laboratory’s laboratory work. The was laboratory readings. trial court City The building not Its fence. function constitut- subsequent of Dr. conduct found that this part diagnostic ed a vital of the and thera- response not a normal Baker was peutic process which a child’s life de- negli so laboratory and was conduct of the pended. laboratory major played a The laboratory’s negli gent that it cut off the process, role in the its tending to increase facts, think that

gence. we Under responsibility for the ultimate result. finding stand. cannot present A not is generally fourth factor laboratory’s negligence. extent considerably dif- here is situation The single This was not an isolated fluke in a ac- an the usual one which ferent from reagent test. The had deteriorated over subsequent to negligence tor asserts period patient For this time. alone superseding cause. his own constitutes laboratory faulty ran one but several cre- negligently case the In the usual actor merely tests. The test results were not af- no further and takes a condition ates degree; erroneous were com- negli- else later action. Someone firmative pletely wrong. The extent of the laborato- person a third act and gently an commits ry’s culpability to extend the causal tends is illustration injured. good A becomes negligence. its Fifth, effect of Baker Ry., 127 N. Burlington & W. Fishburn v. dealing reports laboratory from a railway There a 483, 103 N.W. small laboratory rural manned a medical which sub- a fence negligently constructed technologist reports large, and with from a children some Later fell down. sequently well-equipped supervi- laboratory fell under thereafter up. The fence it propped As pathologists. complication, The written con- to the first sion two after find- ing Joyce pathologists negligent and the hos- and Potter tract between Drs. provide pital hospital trial hospital recites that the will court found utilities, laundry negligent “equipment, customary “vicariously through them.” service, person- Since that supplies finding unchallenged, materials and we ac- cept necessary opera- it. As a result proper finding, nel insure an ex- ception department.” pathology equality applies. tion of the to the rule of covenant, person liable, mat- When a is vicariously contract “In all contains contract, person and the ters in connection with this tortfeasor whose imputed patient shall al- to him are together welfare and interest of considered partic- ways paramount, purposes. be considered contribution Reese v. Henke, 690; ularly phases, namely 145, 286 Minn. (1) as to these 174 N.W.2d Zeglen Minkiewicz, 497, giv- v. 12 improve endeavor the care N.Y.2d 240 constant 965, 450; patient; cir- N.Y.S.2d 191 N.E.2d (2) en under no Martindale Griffin, 510, any App.Div. v. 233 shall there he 253 cumstance decrease N.Y.S. 578, 530, aff’d pa- 167; 259 182 quality the care rendered the N.Y. N.E. of Rodgers, Pa.Super. 48, Parker v. 125 have the of 189 tient.” But now we contention 693; Pierce, 202, A. Wait v. 191 pathologists, those hired to run the labora- Wis. 209 475, 822; expertise, N.W. 210 tory that their reh. N.W. Restate- because of their ment, 2d, 16, Torts preference Tentative Draft medical doctor’s No. fellow § 886A, will, however, neg- (“There Comment h reports extraordinarily their was both or, be situations in equitable principles which ligent and in the words of abnormal— will Institute, equal] call for a different unusual.” Re- distri- “altogether [than C, Thus B statement, 2d, if is the or Torts Comment e. bution. servant § independent contractor, an and C has be- simply Putting together, these factors it only vicariously come liable for the tort negligence cannot be said that Dr. Baker’s B, may proper it be hold B and C to- laboratory’s superseded negligence. gether for one-half share of the total lia- City hospital, and Baker, the Mason Dr. bility, rather than each.”). one-third medical fi- pathologists were all in this vicariously-liable hospital is that result Baker’s together. asco hold that Dr. We is pathologists considered with the and not superseding cause. was not separately. He entitled from the hos- is to contribution complication, As the second Baker pital pathologists. Dr. and the Joyce contends and Dr. Potter each Dr. duty procedures had a to see that were es- Contri Apportionment IV. tablished and followed which assured apportion do we contribu bution. How duty, reagent, fresh that each breached Ordinarily total amount of the tion? sep- and that each is therefore liable for equally among those judgment is divided think, portion arate of contribution. We injured person. 18 Am. liable to the See however, pathologists two come those 92; 83, 61 at Contribution §§ Jur.2d exception within another in which several have 6 at 10. We Contribution § C.J.S. persons together respon- a common violate legal entities here: persons four or such sibility here, to establish and enforce a Baker, hospital, Dr. the Mason — Dr. proper laboratory procedure. v. Wold Joyce, and Potter. Dr. 364, Grozalsky, N.E.2d 437 N.Y. complications One But two exist. negligent in fall (three defendants of flow- hospital erpot vicar- common wall between two held to be from the trial court buildings; is that Drs. one defendant owned one build- iously and the other liable laboratory ing and other defendants Joyce operated the two owned and Potter building; in halves rather together. contribution decide, any Rede do we the effect settlement also Ramirez v. thirds). than See Francisco, hospital payments which made velopment Agency of San pathologists. or does 397, 356; Bundy v. Baker Cal.Rptr. When Dr. Cal.App.3d execution, he collect become entitled to can York, New 23 A.D.2d N.Y.S.2d one, some, all 221; judgment Marymount College v. J. John Joyce, Co., hospital, three: Dr. and Dr. 161 N.Y.S.2d Abramsen 6 Misc.2d ; Stacy, 920; Tex Potter. Palmer 44 Iowa 340 Petroleum Co. v. Eastern States Faro, R., Benjamin 1 A.D.2d 150 N.Y. (Tex.Civ. as & N. R. S.W.2d O. 2d, indemnity Restatement, any rights if Torts Tentative S.2d 620. What App.); 16, 886A, hospital, Joyce, (“Again, h contribution the Draft No. Comment inter se through harm the Dr. Potter or will have we do plaintiff if the suffers lots, not consider. party.wall fall of a between two one by A, and the other owned case, carefully On the whole we have B, common, may proper it C and D arguments considered numerous other B, together D to hold liable C presented, the re- change do not one-quarter rather than one-half, each.”). sult. partnership Suppose here the consisted of pathologists nine instead of two. Under judgment sustain for the child We division, pay would equal an Dr. Baker the claim of and Mrs. dismiss Mr. only Joyce hold that Drs. one-tenth. We Schnebly. judgment for award contri- We together and Potter to be considered against in bution favor of Dr. Baker and failing for purposes, for contribution City hospital patholo- the Mason and the responsibility. their fulfill common We gists. tax the costs one-half to We Dr. the result do intimate what Baker and one-half the Mason hos- pathologists actually be if those had two pital pathologists, and the but we limit the separate negligent committed acts which appellees-Schneblys’ costs for brief to $2 concurred other and with Dr. with each per page. Finally we return the case injury. the negligence Baker’s to cause entry judgment. district for hospital The is the and the result part, part, Affirmed in in reversed pathologists one- are liable to contribute remanded. half; Baker the un- Dr. bears other half. rules, equi- his der the that is contribution MOORE, portion. J., RAWLINGS, REY-

table C. McCORMICK, NOLDSON, HARRIS Dr. Baker is entitled to While JJ., concur. judgment against hospital now and the contribution,

pathologists for execution is REES, JJ., LeGRAND and dissent from judgment not to until Dr. issue on Division IV. discharged equita Baker has more than portion judgment ble of the child’s only

then in pays that he for amount MASON, J., part. takes no equitable portion. excess of his Falciani v. Co., Philadelphia F.Supp. Transp. LeGRAND, Di- (dissenting from Justice (E.D.Pa.) (conditional judgment); Wait apportionment vision IV contribu- Pierce, 475, on Wis. N.W. tion). judgment). (contingent N.W. 822 reh. portion” “equitable

We use the words rath I judgment plaintiff concur in the specific er than a dollar amount because majority except and in opinion all of the we do not know how child’s judgment Division dealing IV with the manner paid discharged will be or because which apportioned among contribution is parties us, presented have not before nor the defendants. Baker, hospi- majority

The finds Dr. pathologists for determination tal, pathologists guilty appropriate two all later action.

negligence proximately which caused the I refute the rationale which one of overwhelming damages which followed. negligent parties three penalized is because judgment The opinion then orders the other two bear relationship some paid Baker and one-half Dr. one-half each other entirely separate and distinct jointly by hospital patholo- and the two from his Why involvement. should this gists. part opinion is This of the with penalize Baker, Dr. whose un- agree. which I cannot der the majority’s findings of the is same quarrel

I no treating have the two order as with that of the other defendants? It entity purposes note, pathologists single interesting too, as a is majority that the finding dispute contribution but I reaches result on contribution which hospital with them for none of associates the parties requests argues. result, course, only is that purpose. The The presented matter appeal on this is rather contribution distributed halves whether contribution should be in thirds or is that than thirds and the result words, further fourths. should two required pay pathologists unfairly—is be assessed singly togeth- Baker— rather than judgment one-half the total er? No one contends contribution should one-third, which I think would be the cor- be in halves. That an issue which the majority rect assessment. has gratuitously advanced this case. theory majority does this on the vicarious, arising hospital’s negligence is result, I think this is wrong particular- relationship only ly majority’s its in view because of claim that con- pathologists, negligent who committed the equitable tribution should be determined on liability depends. principles. In the upon which acts Yet the singularly decision is accept I this under place, inequitable. first cannot It grossly unfair to one de- trial record us. In reversing preferential fendant and unjustifiably before negli- finding Baker’s court on its that Dr. the others. cause, majori- gence superseding mentioned, already As agree I with the on the

ty against the defendants held judgment My of plaintiff. favor disa- proximate issue as a matter cause greement goes only to what is a fair ad- con- that same law. The record demands justment among the who defendants must hospital’s independent clusion as to the pay plaintiff’s damages. furnishing totally unrelia- negligence in trigger solution—the real reagent ble modify majority opinion I would all that followed. provide for contribution one-third Dr. correct, majority is assuming Even Baker, hospital, one-third one- liabil- however, hospital’s concluding jointly by pathologists. third the two apportion ity I only, vicarious respects all other I concur. Baker, the among equally contribution leaving the hospital, pathologists, and the REES, J., joins in this dissent. hospital contribution between

matter of

Case Details

Case Name: Schnebly Ex Rel. Schnebly v. Baker

Court Name: Supreme Court of Iowa

Date Published: Apr 24, 1974

Citation: 217 N.W.2d 708

Docket Number: 55408

Court Abbreviation: Iowa