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Wolbers v. Finley Hospital12/17/2003
tant issue in this case, and it was error for the district court not to instruct the jury that the death certificate was presumptive evidence of the facts contained therein. Plaintiff argues the requested instruction would have been an improper comment on the evidence and a misstatement of the law.
2. Analysis
The hospital requested the following jury instruction:
A certified copy of a death certificate by a physician is presumptive evidence of the facts contained in the death certificate.
We conclude that the proffered instruction was properly rejected by the district court. One of the fighting issues in this case was the cause of death. The death certificate stated as cause of death: "Sudden death due to left carotid endarterectomy 5/16/97, due to peripheral vascular disease due to tobacco use." We have recognized that, although Iowa Code section 144.45 makes death certificates presumptive evidence of facts recited, that is limited to such facts and data as are specific and known, but do not contemplate the perpetuating of hearsay testimony, which is merely conclusions or opinions of the person or persons making them.
Beardsley v. Ostrander, 254 Iowa 356, 359, 118 N.W.2d 61, 62-63 (1962) (citing Morton v. Equitable Life Ins. Co., 218 Iowa 846, 853, 254 N.W. 325, 328 (1934)). A jury given only the instruction proffered by the hospital would not be apt to draw the distinction between facts and opinions and might apply the statutory presumption to the cause of death as expressed in the death certificate. For that reason, the instruction was properly refused.
C. Hypothetical Questions to An Expert
The hospital argues that the court's instruction regarding hypothetical questions and expert-witness testimony was a misstatement of the law and that it was prejudiced by the instruction. The instruction that has been challenged provided:
An expert witness was asked to assume certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. If any fact assumed in the question has not been proved by the evidence, you should decide if that omission affects the value of the opinion.
The hospital contends that the instruction does not truly state the law as established in Cody v. Toller Drug Co., 232 Iowa 475, 480, 5 N.W.2d 824, 827 (1942). Cody states the rule as follows:
[Answers] to hypothetical questions should be disregarded if the facts assumed have not been proven and juries are not permitted to pass on the materiality of such facts.
232 Iowa at 480, 5 N.W.2d at 827 (emphasis added). We need not decide whether the instruction given impermissibly deviates from the rule of law established in Cody. The hospital does not identify any hypothetical questions in the present case that assumed facts that were not proven. Consequently, we have no basis for concluding that the giving of the instruction was prejudicial even if it was improperly worded.
D. Submission of past loss of function of mind and body as an element of damage. The hospital urges that loss of function of mind and body was not a proper item of damage because it lacked support in the evidence. We have recognized that this element of damage may be allowed even though the time between a negligent act impeding a patient's bodily functions and the time of death is brief. Mead v. Adrian, 670 N.W.2d 174, 179 (Iowa 2003).
Plaintiff's evidence revealed that over the course of several hours her decedent's upper airway became obstructed. Dr. Raphael testified that plaintiff's decedent went into respiratory arrest and died because of an upper airway obs
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