a story reported in the Des Moines Register, among other news sites., according to
In 2015, an immigrant from Myanmar named Zaw Zaw was referred by his primary care physician (PCP) to The Iowa Clinic, in West Des Moines, for a circumcision.
Because Mr. Zaw didn’t speak English, a language translation company provided him with an interpreter for the procedure, as well as for any necessary follow-up appointments. The procedure would be performed by urologist Kevin Birusingh, MD, who at the time was employed by the clinic. Prior to the surgery, however, a miscommunication occurred, leading the urologist to perform a vasectomy instead of a circumcision on his patient. It was not until a later follow-up visit that the error was discovered, along with Mr. Zaw’s realization that he was now medically sterile and unable to father more children.
Mr. Zaw sued both Dr. Birusingh and the clinic, which in turn sued the translation company. Against Dr. Birusingh, Mr. Zaw made two claims: one, that the doctor hadn’t obtained the proper informed consent, and two, that he had engaged in “negligent” communications with several key individuals, including other clinic staff members and Dr. Zaw’s PCP.
In 2019, a trial jury found the clinic liable, awarding Mr. Zaw more than $1.4 million in damages. The same jury found no liability on the part of the translation company, however.
Following the verdict, the clinic appealed to the Iowa Court of Appeals. Late last month, the appeals court sent the case back to the lower court for a new trial.
In its ruling, written by Judge Sharon Soorholtz Greer, the appeals court said it could find no evidence that, in failing to communicate personally with his colleagues or Mr. Zaw’s PCP, Dr. Birusingh had violated an established standard of care. For this reason, Judge Greer said, the claim of negligent communication should have been dismissed before it went to the jury. Because it hadn’t been, however, she concluded there was no way of determining to what extent, if at all, it affected the jury verdict. She ordered a new trial that would exclude the negligent communication claim.
In its appeal, The Iowa Clinic also sought to have the first claim dismissed – the one involving informed consent. Contrary to the testimony of a defense expert witness, the clinic argued, Iowa malpractice law doesn’t automatically fault a doctor whose patient misunderstands the procedure he or she is about to receive – as long as, that is, the doctor has made a “reasonable effort” to inform the patient beforehand.
Judge Greer agreed on this point of general law but still permitted the retrial to go forward. Why? She did so because, as the decision made clear, no expert testimony is needed to establish medical malpractice if the lack of care is so obvious that it’s within the comprehension of a layperson.
Mr. Zaw and his attorney, Ben Novotny, have petitioned the Iowa Supreme Court to review the appeals decision.
If the high court refuses that petition and the trial court schedules a new trial on the informed consent issue alone, Mr. Novotny is optimistic: “However it’s determined, whether it’s here [district court] or at the Supreme Court, we’ll live with the court’s decision, we’ll retry the case, and we’ll ask for more money.”