Hagen v. Siouxland Obstetrics & Gynecology, PC et al

Filing 140

ORDER Certifying Questions to the Iowa Supreme Court - I find certification is appropriate in this case, even post-judgment. I hereby certify the questions stated earlier to the Iowa Supreme Court. The Clerk shall forward this order to the Iowa Supreme Court under official seal as required under Iowa Code Section 684A.4. Signed by Judge Mark W Bennett on 8/29/13. (certified copy mailed to Iowa Supreme Court) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
EDWARD P. HAGEN, D.O.,
No. C 11-4047-MWB
Plaintiff,
vs.
SIOUXLAND OBSTETRICS &
GYNECOLOGY, P.C., an IOWA
CORPORATION, PAUL J. EASTMAN,
M.D., TAUHNI T. HUNT, M.D., and
ANGELA J. ALDRICH, M.D.,

ORDER CERTIFYING QUESTIONS
TO THE IOWA SUPREME COURT

Defendants.
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION AND BACKGROUND .............................................. 5 
A. 
Factual Background ............................................................... 5 
1. 
The parties and their relation to each other ........................... 6 
2. 
The facts surrounding Hagen’s firing.................................. 7 
B. 
Procedural Background ........................................................... 9 

II. 

LEGAL ANALYSIS ...................................................................... 11 
A. 
Authorization and Standards for Certification of Questions ............. 11 
B. 
Certification Analysis ............................................................ 13 
1. 
Whether legal issue is unsettled ....................................... 13 
a. 
Question 1: Whether Iowa law recognizes
Protected Conduct 3, 4, or 5 as protected
activities that can support claims for wrongful
discharge in violation of public policy ....................... 14 
i. 
Iowa’s standards for recognizing
protected activities ....................................... 14 
ii. 
Protected Conduct 3:
A doctor
reporting nurses’ malpractice to the

2. 
3. 
4. 
5. 
6. 
7. 

hospital
where
the
malpractice
occurred ................................................... 15 
iii.  Protected Conduct 4:
A doctor
disclosing to a patient’s family that the
patient was a victim of medical
malpractice ................................................ 20 
iv. 
Protected Conduct 5:
A doctor
consulting with an attorney about
whether that doctor had a legal duty to
report another doctor’s medical
malpractice to the Iowa Board of
Medicine ................................................... 21 
b. 
Question 2: Whether contractual employees
can bring claims for wrongful discharge in
violation of Iowa public policy ................................ 27 
c. 
Question 3:
Whether the lack of an
“overriding business justification” is an
independent element of a claim for wrongful
discharge in violation of public policy ....................... 33 
Availability of legal resources .......................................... 40 
Court’s familiarity with state law ...................................... 40 
Time demands on comparative court dockets ....................... 41 
Frequency legal issue is likely to reoccur ............................ 42 
Age of litigation and prejudice from certification .................. 42 
Whether there is a split in authority .................................. 43 
a. 
Question 1: Whether other courts recognize
Protected Conduct 3, 4, or 5 as protected
activities that can support claims for wrongful
discharge in violation of public policy ....................... 44 
i. 
Protected Conduct 3:
A doctor
reporting nurses’ malpractice to the
hospital
where
the
malpractice
occurred ................................................... 44 
ii. 
Protected Conduct 4:
A doctor
disclosing to a patient’s family that the
patient was a victim of medical
malpractice ................................................ 54 
iii.  Protected Conduct 5:
A doctor
consulting with an attorney about
2

b. 
c. 

III. 

whether that doctor had a legal duty to
report another doctor’s medical
malpractice to a state board of
medicine ................................................... 59 
Question 2: Whether contractual employees
can bring claims for wrongful discharge in
violation of public policy ....................................... 63 
Question 3:
Whether the lack of an
“overriding business justification” is an
independent element of a claim for wrongful
discharge in violation of public policy ....................... 68 

CONCLUSION ............................................................................ 70 
This is an order certifying questions to the Iowa Supreme Court following a jury

trial in which a jury found Defendants liable for wrongfully discharging the Plaintiff in
violation of Iowa public policy. On June 6, 2013, I sua sponte ordered the parties in
this case to provide supplemental briefs on the following issue, among others:
“Whether the Court should certify to the Iowa Supreme Court the question of whether
Iowa law recognizes the public policy exceptions on which the jury found Defendants
liable” (docket no. 124). The Plaintiff and Defendants filed their supplemental briefs
on July 5, 2013 (docket nos. 134 and 137). The parties presented oral arguments on
this issue on August 23, 2013. Like the eight-day jury trial, the oral arguments were
vigorously and zealously presented by highly skilled and exceptionally well-prepared
counsel. Though their clients obviously disliked each other, counsel demonstrated the
utmost professionalism and civility toward each other and to me.

It would be

wonderful if I could clone these lawyers for other hotly contested federal civil
litigation.
I raised this matter sua sponte because this case turns on a number of unresolved
questions of Iowa law. The answers to these questions are critical to resolving the
Defendants’ post-trial motion for judgment as a matter of law (docket no. 119), which
3

is currently pending before me. Because this case raises issues of first impression
under Iowa law that should, under the circumstances, be decided by the Iowa Supreme
Court, I conclude that I should certify the following questions to the Iowa Supreme
Court:
Question 1
Does Iowa law recognize any of the following conduct as
protected conduct on which a doctor-employee can base a
claim for wrongful discharge in violation of Iowa public
policy?:
(a) A doctor reporting, stating an intention to report,
or stating that he might report, to a hospital,
conduct of nurses that the doctor believed may
have involved wrongful acts or omissions;
(b) A doctor disclosing to a patient or a patient’s
family that the patient may have been the victim of
negligent care or malpractice; or
(c) A doctor consulting with an attorney, stating an
intention to consult with an attorney, or stating
that he might consult with an attorney, about
whether another doctor or nurses had committed
wrongful acts or omissions that the doctor should
report to the Iowa Board of Medicine or a
hospital.
Question 2
Does Iowa law allow a contractual employee to bring a
claim for wrongful discharge in violation of Iowa public
policy, or is the tort available only to at-will employees?
Question 3
Under Iowa law, is an employer’s lack of an “overriding
business justification” for firing an employee an independent
element of a wrongful discharge claim, or is that element
implicit in the element requiring that an employee’s
4

protected activity be the determining factor in the
employer’s decision to fire the employee?
Whether I grant the Defendants’ post-trial motion for judgment as a matter of law or
motion for a new trial will depend, in part, on the answers to these questions.
I.

INTRODUCTION AND BACKGROUND

“A certification order shall set forth . . . a statement of facts relevant to the
questions certified, showing fully the nature of the controversy in which the questions
arose.”

Iowa Code § 684A.3.

Unless I note otherwise, the following facts are

presented “in the light most favorable to the jury verdict, assuming all conflicts in the
evidence were resolved in [the Plaintiff’s] favor, and giving Plaintiff[] the benefit of all
reasonable inferences that may be drawn from the evidence . . . .” Craig Outdoor
Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1013 (8th Cir. 2008).
A.

Factual Background

In this case, Dr. Edward Hagen (Hagen) sued his former employer, Siouxland
Obstetrics & Gynecology, P.C. (Siouxland), and his former partners, Dr. Paul Eastman
(Eastman), Dr. Tauhni Hunt (Hunt), and Dr. Angela Aldrich (Aldrich) (collectively
“the Siouxland Defendants”) for wrongful discharge in violation of Iowa public policy.
In particular, Hagen claims that the Siouxland Defendants ousted him from their
medical practice because Hagen reported, or threatened to report, to St. Luke’s hospital
and a patient, that Eastman and two nurses committed medical malpractice causing an
unborn baby’s death. Hagen also claims that the Siouxland Defendants ousted him for
consulting with attorneys about whether Eastman and the nurses had committed
malpractice, and whether Hagen should report Eastman to the Iowa Board of Medicine
or St. Luke’s.

5

1.

The parties and their relation to each other

Siouxland, an Iowa professional corporation, is located in Sioux City, Iowa, and
provides obstetric and gynecologic services to patients. Siouxland expanded into the
area of cosmetic surgery and related services, including the development of The
Rejuvenation Centre, which provided client services such as Botox treatment, Juviderm
treatment, hair removal, liposuction, massage therapy, and weight loss consultation.
Siouxland was formed and organized by three physicians, including Hagen’s father, in
1975. At the time of Hagen’s firing, in November 2009, the doctors with an interest in
Siouxland were Hagen, Eastman, Hunt, and Aldrich.
Hagen is a doctor of obstetrics and gynecology, presently licensed to practice
medicine in Iowa, South Dakota, and Wisconsin. On January 1, 1993, Hagen entered
into an employment agreement with Siouxland.

Hagen has been an equity owner,

president, and director at Siouxland. At the time he was fired, Hagen was the president
of Siouxland.
When the doctors joined Siouxland, they agreed not to “engage in the practice of
medicine except as an employee of the CORPORATION unless otherwise authorized by
the Board of Directors.” The employment agreement states all income generated “for
services as a doctor and all activities relating thereto, such as lecturing, writing articles
and consulting work, shall belong to the CORPORATION . . . .” A doctor could be
terminated by delivering a written notice of cancellation at least 90 days prior to the
effective date of cancellation or “discharged by the CORPORATION in the event of
embezzlement or other theft; willful contravention of professional ethics; substantial
and willful violation of any other terms or conditions of this employment agreement, all
subject to determination by the Board of Directors of the CORPORATION.”

6

2.

The facts surrounding Hagen’s firing

Hagen’s claims in this case arise out of an incident that began at St. Luke’s
hospital in Sioux City, Iowa, on Thursday, November 5, 2009. On that day, Selvin
and Maria Maeda, who were husband and wife, were at St. Luke’s because Maria
Maeda was dealing with complications related to her pregnancy. She was 34 weeks
pregnant and she was suffering from infections related to a prior liver transplant.
Eastman was Maria’s consulting physician and had met her during a prior examination,
but he was not at the hospital with Maria on the 5th. In fact, Maria had been admitted
to the hospital at around 1:00 pm and Eastman had never gone to St. Luke’s to check
on her. Hagen was on call that evening to cover patients at St. Luke’s. At around 4:30
pm, Eastman called Hagen to ask whether Hagen was on call and to explain Maria’s
complications. Eastman explained to Hagen that he thought Maria was at a hospital in
Omaha, and had only recently learned that she was still at St. Luke’s. Eastman told
Hagen that Maria was in labor and going into intensive care based on her
complications.
After speaking with Eastman for about 30 minutes, Hagen went to St. Luke’s.
Hagen arrived at the hospital at 5:30 pm. He immediately went to see Maria, who was
under general anesthesia, and performed an ultrasound, which confirmed that her baby
was dead. Hagen began asking two labor and delivery nurses—Peggy Mace and Holly
Duerksen—how long the baby had been dead. They could not tell him. Hagen became
very upset and asked the nurses: “How the fuck can this happen at St. Luke’s that
[nurses] watch a baby die on the monitor, suffocate, and do nothing?” Hagen went on
to say to the nurses: “You killed this baby. You watched this baby die on the monitor.
I mean, you guys did nothing.” Hagen noted that the nurses had missed the fact that
Maria’s baby was dead because they had mistaken Maria’s elevated heart rate for her
baby’s and presumed the baby was still alive.
7

After realizing that Maria’s baby was dead, Hagen determined that he needed to
perform a C-section to deliver the dead baby. Before doing so, Hagen called Eastman
on the telephone. At trial, Hagen testified that the conversation went as follows: “And
I told [Eastman] we got a problem here. We’ve got a mother here that’s had no care.
The nurses screwed up. You didn’t come see her, and this baby is dead, and now I’ve
gotta do a C-section on a mother and deliver a dead baby.” Eastman offered to help do
the C-section, but Hagen declined, telling Eastman: “I don’t need help doing a Csection. I can do that. I needed your help three hours earlier, but I don’t need it now.”
Before performing the C-section, Hagen spoke with Selvin, Maria’s husband.
They talked for over an hour in the doctor’s lounge. During their conversation, Hagen
told Selvin that “things could have been done better” and that Hagen thought “the
nurses missed something here.” Hagen then performed the surgery to remove Maria’s
baby.
The next day, Hagen went to one of the hospital’s administrators, Dr.
Hildebrand (Hildebrand), to report himself for using the F-word to the nurses, and to
report the nurses and Eastman for their failure to properly care for Maria.

After

making these reports to the hospital, Hagen consulted with three different attorneys
about various issues, including how Hagen should document what had happened the
night before and what Hagen should do personally in response to the incident. During
one of these conversations, one of the attorneys reminded Hagen that he had a duty to
report malpractice to the Iowa Board of Medicine. Later that day, Hagen told Eastman
that “these attorneys are telling me I have to report you to the Iowa state medical
board.” Hagen also had a conversation with Hunt and Aldrich in which he told them
that Hagen had reported the nurses and Eastman to the hospital, and that Hagen had
spoken with attorneys who told him that he might have to turn Eastman in to the Iowa
Board of Medicine.
8

Hagen spent the next two days, Saturday and Sunday, in Lincoln, Nebraska,
with his children and then returned to Sioux City.

The following Monday night,

November 9, 2009, Hagen received a 10-day suspension from St. Luke’s hospital. On
Tuesday, Hagen was noticeably upset at work because of how the hospital handled the
suspension, punishing Hagen without also punishing the nurses or Eastman. Hagen told
his medical partners that he was going to tell the patient to sue the hospital, and that he
was going to tell the patient to get a lawyer and investigate what happened. Then, on
Wednesday night, Hagen called Maria Maeda at the hospital and told her: “You were
mistreated, this is malpractice, the nurses missed the boat, Dr. Eastman missed the
boat, and I think you should get an attorney.” Finally, on Thursday, Hagen informed
his partners that he had spoken with Maria. That was the last day Hagen worked at
Siouxland.
The following Monday, while Hagen was out of town at his cabin in Wisconsin,
Hagen received a call from Siouxland’s corporate attorney, who told Hagen he needed
to be in a meeting at 7:00 pm because he was being fired. Hagen drove back to Sioux
City to make the meeting, which was held at Siouxland’s attorney’s law firm. At the
meeting, Siouxland’s attorney told Hagen that the partners at Siouxland had decided to
fire him.

Following his firing, Hagen sued the Siouxland Defendants, claiming a

number of causes of action including wrongful discharge in violation of Iowa’s public
policy.
B.

Procedural Background

On April 19, 2013, the parties went to trial on Count IV of Hagen’s Complaint:
Retaliatory Discharge in Violation of Public Policy.1 The trial lasted eight days and
occurred between April 19, 2013, and May 1, 2013.
1

In his complaint, Hagen pleaded thirteen counts against some, or all, of the Siouxland
Defendants: fraudulent misrepresentation, conspiracy to defraud, forgery, retaliatory
9

At the trial’s conclusion, the jury found the Siouxland Defendants liable for
wrongfully discharging Hagen in violation of Iowa’s public policy. The verdict form
provided five options of protected conduct that the jury could find to support their
conclusion that the Siouxland Defendants wrongfully discharged Hagen. The verdict
form read, in pertinent part:
If you found in favor of Dr. Hagen in Step 1, which one or
more of the following kinds of conduct do you find were
determining factor(s) in Siouxland’s decision to terminate
Dr. Hagen?
Dr. Hagen reporting, stating an intention to report, or
stating that he might report to the Iowa Board of Medicine
conduct of Dr. Eastman that Dr. Hagen believed may have
involved wrongful acts, omissions, negligence, or
malpractice [Protected Conduct 1]
Dr. Hagen reporting, stating an intention to report, or
stating that he might report to a hospital conduct of Dr.
Eastman that Dr. Hagen believed may have involved
wrongful acts, omissions, negligence, or malpractice
[Protected Conduct 2]
X Dr. Hagen reporting, stating an intention to report, or
stating that he might report to a hospital conduct of nurses
that Dr. Hagen believed may have involved wrongful acts or
omissions [Protected Conduct 3]
X Dr. Hagen disclosing to a patient or a patient’s family
that the patient may have been the victim of negligent care
or malpractice [Protected Conduct 4]

discharge in violation of public policy, negligence, breach of fiduciary duty, breach of
contract, promissory estoppel, unjust enrichment, tortious interference with business
relationships, tortious interference with prospective business advantage, intentional
infliction of emotional distress, and punitive damages. All of these claims survived
summary judgment, but Hagen voluntarily declined to pursue all but his wrongful
discharge claim.
10

X Dr. Hagen consulting with an attorney, stating an
intention to consult with an attorney, or stating that he might
consult with an attorney about whether Dr. Eastman or
nurses had committed wrongful acts or omissions that Dr.
Hagen should report to the Iowa Board of Medicine or a
hospital [Protected Conduct 5]
(Docket no. 113). The jury marked the last three options—i.e., Protected Conduct 3,
4, and 5—in support of the verdict in favor of Hagen, and awarded Hagen $1,051,814
for past lost earnings. The jury awarded Hagen no damages for future lost earnings,
and it awarded no punitive damages. The Clerk entered judgment for Hagen in the
amount of $1,051,814 on May 2, 2013.
Following the verdict, the Siouxland Defendants moved for judgment as a matter
of law, or alternatively a new trial. In their post-trial motion, the Siouxland Defendants
argue, among other things, that none of the protected activities on which the jury based
its verdict are actionable under Iowa law, and that Hagen failed to prove he was an atwill employee and therefore cannot maintain a claim for wrongful discharge in violation
of Iowa public policy.
II.
A.

LEGAL ANALYSIS

Authorization and Standards for Certification of Questions
Both Iowa law and this court’s Local Rules permit me, on the motion of a party

or sua sponte, to certify a question of state law to the Iowa Supreme Court. Iowa’s
certification statute provides:
The supreme court may answer questions of law certified to
it by the supreme court of the United States, a court of
appeals of the United States, a United States district court or
the highest appellate court or the intermediate appellate court
of another state, when requested by the certifying court, if
there are involved in a proceeding before it questions of law
of this state which may be determinative of the cause then
pending in the certifying court and as to which it appears to
11

the certifying court there is no controlling precedent in the
decisions of the appellate courts of this state.
Iowa Code § 684A.1. Local Rule 83 of the Northern District of Iowa provides:
When a question of state law may be determinative of a
cause pending in this court and it appears there may be no
controlling precedent in the decisions of the appellate courts
of the state, any party may file a motion to certify the
question to the highest appellate court of the state. The court
may, on such motion or on its own motion, certify the
question to the appropriate state court.
N.D. Ia. L.R. 83.
The United States Supreme Court has recognized that:
Certification procedure . . . allows a federal court faced
with a novel state-law question to put the question directly to
the State’s highest court, reducing the delay, cutting the
cost, and increasing the assurance of gaining an authoritative
response.
Arizonans for Official English v. Arizona, 520 U.S. 43, 76 (1997); see Lehman Bros. v.
Shein, 416 U.S. 386, 391 (1974) (by certifying a question of state law, the federal court
may save “time, energy and resources and hel[p] build a cooperative judicial
federalism”). Thus, “[t]aking advantage of certification made available by a State may
‘greatly simplif[y]’ an ultimate adjudication in federal court.” Arizonans for Official
English, 520 U.S. at 76 (citing Bellotti v. Baird, 428 U.S. 132, 151 (1976)).
Whether a federal district court should certify a question of state law to the
state’s highest court is a matter “committed to the discretion of the district court.”
Allstate Ins. Co. v. Steele, 74 F.3d 878, 881-82 (8th Cir. 1996); Schein, 416 U.S. at
391 (“[Certification’s] use in a given case rests in the sound discretion of the federal
court.”); see Babinski v. American Family Ins. Group, 569 F.3d 349, 353 (8th Cir.
2009) (“‘Whether a federal court should certify a question to a state court is a matter of
12

discretion.’”) (quoting Johnson v. John Deere Co., 935 F.2d 151, 153 (8th Cir. 1991));
see also Anderson v. Hess Corp., 649 F.3d 891, 891 (8th Cir. 2011); Jung v. General
Cas. Co., 651 F.3d 796, 796 (8th Cir. 2011); Packett v. Stenberg, 969 F.2d 721, 726
(8th Cir. 1992).
I previously articulated the following factors to be considered in determining
whether to certify a question to a state’s highest court:
(1) the extent to which the legal issue under consideration
has been left unsettled by the state courts; (2) the availability
of legal resources which would aid the court in coming to a
conclusion on the legal issue; (3) the court’s familiarity with
the pertinent state law; (4) the time demands on the court’s
docket and the docket of the state supreme court; (5) the
frequency that the legal issue in question is likely to recur;
and (6) the age of the current litigation and the possible
prejudice to the litigants which may result from certification.
Leiberkneckt v. Bridgestone/Firestone, Inc., 980 F. Supp. 300, 310 (N.D. Iowa 1997);
accord Erickson-Puttmann v. Gill, 212 F. Supp.2d 960, 975 n.6 (N.D. Iowa 2002); see
Olympus Alum. Prod. v. Kehm Enters., Ltd., 930 F. Supp. 1295, 1309 n.10 (N.D.
Iowa 1996) (citing Rowson v. Kawasaki Heavy Indus., Ltd., 866 F. Supp. 1221, 1225
& n. 5 (N.D. Iowa 1994)).

In Leiberkneckt, I also considered a seventh factor;

“whether there is any split of authority among those jurisdictions that have considered
the issues presented in similar or analogous circumstances.”

Leiberkneckt, 980 F.

Supp. at 311. I will address each of these factors in turn below.
B.
1.

Certification Analysis

Whether legal issue is unsettled

The initial certification factor considers whether the issue is “unsettled” by state
courts.

See Leiberkneckt, 980 F. Supp. at 310; see also Erickson-Puttmann, 212 F.

Supp.2d at 975 n.6; Olympus Alum. Prod., 930 F. Supp. at 1309 n.10. As is discussed
13

below, both of the questions that I have chosen to certify are unsettled under Iowa law.
Thus, I find that the first certification factor weighs in favor of certifying to the Iowa
Supreme Court the questions of whether Hagen engaged in protected conduct, and
whether a contractual employee can sue for wrongful discharge in violation of public
policy.
a.

Question 1: Whether Iowa law recognizes Protected
Conduct 3, 4, or 5 as protected activities that can support
claims for wrongful discharge in violation of public policy
i.

Iowa’s standards for recognizing protected activities

Iowa law recognizes a “public-policy exception to the at-will employment
doctrine[,]” which “limits an employer’s discretion to discharge an at-will employee
when the discharge would undermine a clearly defined and well-recognized public
policy of the state.” Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 109 (Iowa
2011) (citing Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 763 (Iowa 2009); Thompto v.
Coborn’s Inc., 871 F. Supp. 1097, 1112–13 (N.D. Iowa 1994)). Under this “publicpolicy exception,” an employee can bring “an intentional tort claim of wrongful
discharge from employment in violation of public policy” against his or her employer if
the employer fired the employee for engaging in certain categories of “protected
activity.” Id. at 109-10. At issue in this case is whether the protected activities found
by the jury—Protected Conduct 3, 4, and 5—are, or would be, recognized under Iowa
law such that Iowa employers could be held liable if they fire employees for engaging
in those activities.
Not every “socially desirable conduct” an employee might engage in is
actionable under Iowa’s public policy exception. Jasper, 764 N.W.2d at 762. Rather,
to be actionable, an employee’s purported protected conduct must be “clear and welldefined” under Iowa law such “that it should be understood and accepted in our society
as a benchmark” activity for which employers cannot fire employees. Id. at 763. A
14

well-defined public policy might be embodied in Iowa’s legislatively enacted statutes,
Iowa’s Constitution, or even Iowa’s administrative regulations.

Id. at 763-74.

Whether legislative or administrative, a purported public-policy source “must not only
relate to public health, safety, or welfare, but the regulation must also express a
substantial public policy in a way that furthers a specific legislative expression of the
policy.”

Id. at 764.

Based on these principles, Iowa law protects employees in

performing at least four broad categories of conduct: “(1) exercising a statutory right
or privilege; (2) refusing to commit an unlawful act; (3) performing a statutory
obligation; and (4) reporting a statutory violation . . . .” Id. at 762 (internal citations
omitted).
This case involved three purportedly protected activities—Protected Conduct 3,
4, and 5—that the Iowa courts have yet to explicitly recognize. Based on the discussion
below, I would find that Iowa’s public policy exception protects employees, like
Hagen, who engage in these activities. But because the Iowa courts have not addressed
these activities directly, I find that certifying these questions to the Iowa Supreme Court
is appropriate.
ii.

Protected Conduct 3: A doctor reporting nurses’
malpractice to the hospital where the malpractice
occurred

In this case, the jury found that Protected Conduct 3 was a determining factor in
the Siouxland Defendants’ decision to fire Hagen. Specifically, the jury found that the
Siouxland Defendants fired Hagen for “reporting, stating an intention to report, or
stating that he might report to [St. Luke’s] hospital conduct of nurses that Dr. Hagen
believed may have involved wrongful acts or omissions” (docket no. 113). The Iowa
courts have not yet addressed whether a doctor stating his or her intention to report
nurses’ malpractice to a hospital constitutes protected conduct.
15

Though the issue remains undecided, Iowa’s comprehensive statutory and
regulatory schemes governing medical professionals demonstrate a strong public policy
interest in protecting doctors and nurses who openly report malpractice. To start, Iowa
law requires that all doctors and nurses be licensed by state licensing boards before they
practice medicine or nursing. Iowa Code § 147.2. These state licensing boards—the
board of medicine and the board of nursing—must establish rules for revoking and
suspending licenses of doctors and nurses who engage in harmful or unprofessional
conduct. Id. § 272C.10 (mandating that the boards establish revocation and suspension
rules); see also id. § 147.55 (providing a non-exhaustive list of grounds for revoking or
suspending licenses). For example, the board of medicine or nursing must revoke or
suspend a doctor’s or nurse’s license if he or she demonstrates “[p]rofessional
incompetence” or “[k]nowingly mak[es] misleading, deceptive, untrue, or fraudulent
representations in the practice of a profession or engag[es] in unethical conduct or
practice[s] harmful or detrimental to the public,” among other things.

Id. §§

147.55(2)-(3). The Iowa Code goes on to permit the board of medicine to discipline
doctors who are “guilty of a willful or repeated departure from, or the failure to
conform to, the minimal standard of acceptable and prevailing practice of medicine and
surgery” or who commit “an act contrary to honesty, justice, or good morals . . . .”
Id. § 148.6(2) (listing other grounds for discipline as well). And the board of nursing
may similarly discipline nurses who are “guilty of willful or repeated departure from or
the failure to conform to the minimum standard of acceptable and prevailing practice of
nursing . . . .” Id. § 152.10(2) (listing other grounds for discipline as well).
Additionally, the text of these licensing laws demonstrates that the regulations
imposed on doctors and nurses are designed to protect the public, not just individual
patients.

See, e.g., id. § 272C.10(3) (requiring revocation or suspension where a

doctor or nurse “engag[ed] in unethical conduct or practice harmful or detrimental to
16

the public”); id. § 147.55(3) (same). In fact, if a doctor or nurse fails to live up to
certain standards in Iowa’s licensing laws, “actual injury to a patient need not be
established” before a board can discipline that doctor or nurse.

Id. § 148.6(2)(g)

(doctors); id. § 152.10(2)(g) (nurses); id. § 147.55(3) (noting that “[p]roof of actual
injury need not be established” before disciplining both doctors and nurses who
“[k]nowingly mak[e] misleading, deceptive, untrue, or fraudulent representations in the
practice of a profession or engag[e] in unethical conduct or practice[s] harmful or
detrimental to the public”).
And Iowa’s licensing laws are designed to regulate not only how a doctor or
nurse treats a patient, but also how a doctor or nurse responds to other medical
professionals who fail to conform to Iowa’s licensing standards. Iowa’s statutes and
administrative regulations impose a duty on doctors and nurses, in certain
circumstances, to report other doctors or nurses who fail to meet the standards of care
required of medical professionals. Under Iowa law, “[a] licensee has a continuing duty
to report to the licensing board by whom the person is licensed those acts or omissions
specified by rule of the board pursuant to section 272C.4, subsection 6, when
committed by another person licensed by the same licensing board.” Id. § 272C.9(2).
The Iowa Administrative Code further discusses a licensed doctor’s mandatory
reporting duties, and provides: “A report shall be filed with the board when a licensee
has knowledge as defined in this rule that another person licensed by the board may
have engaged in reportable conduct.”

Iowa Admin. Code r. 653-22.2(2).

Administrative Code defines “reportable conduct” as
wrongful acts or omissions that are grounds for license
revocation or suspension under these rules or that otherwise
constitute negligence, careless acts or omissions that
demonstrate a licensee’s inability to practice medicine
competently, safely, or within the bounds of medical ethics,
17

The

pursuant to Iowa Code sections 272C.3(2) and 272C.4(6)
and 653—Chapter 23.
Id. r. 653-22.2(1). “Failure to report a wrongful act or omission in accordance with
this rule within the required 30-day period shall constitute a basis for disciplinary action
against the licensee who failed to report.” Id. r. 653-22.2(2)(e).

Similarly, the

Administrative Code defines “unethical conduct” for nurses to include “[f]ailing to
report suspected wrongful acts or omissions committed by a licensee of the board.” Id.
r. 655-4.6(4)(r).
Taken together, Iowa’s statutes and regulations governing the conduct of medical
professionals express common-sense public policy values: People want to ensure that
their doctors and nurses—who have immense control over people’s lives and health—
are not only highly competent, but also highly accountable. These values benefit the
public just as much as they benefit individual patients. After all, “[e]veryone will, at
some point, consume health-care . . . services.”

Nat’l Fed’n of Indep. Bus. v.

Sebelius, 132 S. Ct. 2566, 2618 (2012) (Ginsburg, J., concurring in part and dissenting
in part). And when the public inevitably consumes health-care services, it expects that
its medical professionals will be qualified and will not attempt to sweep mistakes under
the rug. Thus, Iowa law requires doctors and nurses to disclose malpractice to their
governing boards. While Iowa Code § 272C.9(2) only requires a licensee to report
malpractice committed by a “person licensed by the same licensing board,” Iowa’s
mandatory reporting laws stand for a greater principle: Iowa law encourages medical
professionals to disclose medical mistakes, not hide them.
Hagen’s open intention to report nurses who committed malpractice to St. Luke’s
hospital was consistent with the spirit of Iowa’s public policy favoring disclosure.
True, Iowa’s mandatory reporting laws require only that licensees report malpractice to
their board, rather than to a hospital. But the public policy benefit underlying Iowa’s
18

mandatory reporting requirements—the open disclosure of medical mistakes—is equally
served when a doctor reports malpractice to authorities at a hospital where the
malpractice happened. It would be strange to protect a doctor from being fired for
discharging his or her mandatory duty to report malpractice to the board of medicine,
but leave that same doctor exposed to termination for reporting that same malpractice to
a different medical authority, like a hospital’s management.
In Jasper v. H. Nizam, Inc., 764 N.W.2d 751 (Iowa 2009), the Iowa Supreme
Court confronted an analogous statutory scheme designed to protect the public. The
Court in Jasper held that a children’s day-care director could sue her employer for
wrongful discharge in violation of public policy after the director was fired for refusing
to allow the day-care to operate below the proper child-to-staff ratio mandated by
Iowa’s Administrative Code. Id. at 768. The Court in Jasper held that Iowa’s child-tostaff administrative rules could form the basis of a wrongful discharge claim because
these rules were “a means ‘to assure the health, safety, and welfare of children’ in daycare facilities.”

Id. at 766 (quoting Iowa Code § 237A.12(1)(a)).

Based on this

regulatory goal, and because “the protection of children is a matter of fundamental
public interest,” Iowa’s child-to-staff regulations “satisfy[ied] the goal that the
regulation affect the public interest.” Id.
Like the regulations at issue in Jasper, Iowa’s mandatory reporting and licensing
regulations for medical professionals protect the health, safety, and welfare of patients.
In particular, these regulations were designed, in part, to protect against “unethical
conduct or practice[s] harmful or detrimental to the public.” Iowa Code § 272C.10(3).
Given that Iowa’s licensing and reporting laws promote medical competence and open
disclosure, I would find that a doctor reporting nurses’ malpractice to a hospital
constitutes protected activity under Iowa law.

19

iii.

Protected Conduct 4: A doctor disclosing to a
patient’s family that the patient was a victim of
medical malpractice

In addition to Protected Conduct 3, the jury found that Protected Conduct 4 was
a determining factor in the Siouxland Defendants’ decision to fire Hagen. Specifically,
the jury found that the Siouxland Defendants fired Hagen for “disclosing to a patient or
a patient’s family that the patient may have been the victim of negligent care or
malpractice” (docket no. 113). Like Protected Conduct 3, the Iowa courts have not yet
directly addressed whether Iowa law recognizes Protected Conduct 4 as protected
activity that can support a wrongful discharge claim. But, again, I would find that
Iowa’s public policy protects a doctor who engages in this activity. The public policy
goals of competence and open disclosure in Iowa’s licensing laws equally favor
protecting doctors who openly disclose another’s malpractice to the very people
victimized by the malpractice—the patients. Because I discussed the applicability and
goals of Iowa’s licensing laws above, I will not repeat that rationale here.
Aside from the statutory policy goals favoring disclosure, Iowa law provides
additional support for protecting doctors who disclose malpractice to patients. Under
Iowa law, “[t]he close relationship of trust and confidence between patient and
physician gives rise to duties of disclosure . . . .” Koppes v. Pearson, 384 N.W.2d
381, 386 (Iowa 1986).

A number of Iowa regulations and statutes recognize the

importance of open and clear disclosure between doctors and their patients. See, e.g.,
Iowa Admin. Code r. 653-13.7(3) (requiring that patient “[i]nformation shall be
divulged by the physician when authorized by law or the patient or when required for
patient care”); id. r. 653-13.7(7) (requiring doctors to provide a patient with a copy of
their medical records upon request); Iowa Code § 147.137 (detailing requirements of a
patient’s written informed consent, which include a number of disclosures related to the
risks of medical procedures). These statutes, combined with Koppes’s recognition of a
20

doctor’s duties of disclosure and Iowa’s licensing standards favoring disclosing
malpractice, would lead me to conclude that Iowa’s public policy protects doctors who
inform patients that they were the victims of malpractice.
iv.

Protected Conduct 5: A doctor consulting with an
attorney about whether that doctor had a legal duty
to report another doctor’s medical malpractice to the
Iowa Board of Medicine

Finally, the jury found that Protected Conduct 5 was a determining factor in the
Siouxland Defendants’ decision to fire Hagen. Specifically, the jury found that the
Siouxland Defendants fired Hagen for
consulting with an attorney, stating an intention to consult
with an attorney, or stating that he might consult with an
attorney about whether Dr. Eastman or nurses had
committed wrongful acts or omissions that Dr. Hagen should
report to the Iowa Board of Medicine or a hospital.
(Docket no. 113). No Iowa court has ever directly addressed whether consulting with
an attorney about whether a doctor has a legal obligation to report another doctor or
nurses to the Iowa Board of Medicine constitutes protected activity. Thus, this issue,
like those above, appears to be unsettled under Iowa law.
Based on Iowa’s public policy principles, I held nearly two decades ago that
Iowa’s public policy protected an employee who was fired after threatening to consult
an attorney about a dispute the employee was having with her employer. Thompto v.
Coborn’s Inc., 871 F. Supp. 1097, 1116 (N.D. Iowa 1994). I reached that conclusion
by relying on a combination of legislative and judicial authorities, all of which
recognize the paramount importance of allowing people to consult with lawyers. These
authorities fall into two categories:

(1) statutes and rules regulating the legal

profession, and (2) common-sense judicial and legislative declarations about the
necessary role lawyers play in society. Id. at 1119-21.
21

First, I noted in Thompto that Iowa’s legislature has vested the Iowa Supreme
Court with the authority to regulate many aspects of the legal profession, including
granting and revoking law licenses, disciplining attorneys, and adopting rules regulating
Iowa lawyers. See Iowa Code § 602.10101 (“The power to admit persons to practice
as attorneys and counselors in the courts of this state, or any of them, is vested
exclusively in the supreme court which shall adopt and promulgate rules to carry out
the intent and purpose of this article.”); id. § 602.10121 (granting the court the power
to revoke and suspend law licenses); Thompto, 871 F. Supp. at 1119. And “[t]he Iowa
Supreme Court has always reserved to itself the inherent power to regulate the legal
profession in this state[.]” Thompto, 871 F. Supp. at 1119 (citing Matter of Peterson,
439 N.W.2d 165, 166 (Iowa 1989) (further citations omitted)). Consistent with this
authority, in 1994, when I decided Thompto, the Iowa Supreme Court enforced the
Code of Professional Responsibility, which discussed the important role lawyers played
in society. For example, the Code recognized that
[l]awyers, as guardians of the law, play a vital role in the
preservation of society. The fulfillment of this role requires
an understanding by lawyers of their relationship with and
function in our legal system. A consequent obligation of
lawyers is to maintain the highest standards of ethical
conduct.
Id. (quoting Code of Professional Responsibility, Preamble). The Code also stated
“that every person in our society should have ready access to the independent
professional services of a lawyer of integrity and competence.” Id. (quoting Code of
Professional Responsibility, EC 1–1). To promote this ideal, the Code provided that
[t]he need of members of the public for legal services is met
only if they recognize their legal problems, appreciate the
importance of seeking legal assistance, and are able to obtain
the services of acceptable legal counsel. Hence, important
functions of the legal profession are to educate laypersons to
22

recognize their problems, to facilitate the process of
intelligent selection of lawyers, and to assist in making legal
services fully available.
Id. at 1119-20 (quoting Code of Professional Responsibility, EC 2–1). Based on these
rules, I concluded that “the Code of Professional Responsibility embodies a strong
public policy favoring access of persons to professional legal services for the purposes
of recognizing legal problems.” Id. at 1120 (footnote omitted).
Then, in 2005, the Iowa Supreme Court adopted a new (though highly similar)
set of professional rules—the Iowa Rules of Professional Conduct—which govern Iowa
lawyers today. Ia. Ct. R. Ch. 32; see also Iowa Supreme Court Disciplinary Bd. v.
Casey, 761 N.W.2d 53, 57 (Iowa 2009) (noting that the Iowa Rules of Professional
Conduct were adopted in 2005). Though the text and organization of these newer rules
differs from the Code of Professional Responsibility, the Rules of Professional Conduct
retain much of the same language cited above. See, e.g., Iowa Rules of Prof’l Conduct
Preamble [13] (“Lawyers play a vital role in the preservation of society. The fulfillment
of this role requires an understanding by lawyers of their relationship to our legal
system. The Iowa Rules of Professional Conduct, when properly applied, serve to
define that relationship.”); id. Preamble [6] (“[A] lawyer should seek improvement of
the law, access to the legal system, the administration of justice, and the quality of
service rendered by the legal profession.”); id. (“[A]ll lawyers should devote
professional time and resources and use civic influence to ensure equal access to our
system of justice for all those who because of economic or social barriers cannot afford
or secure adequate legal counsel.”).
Second, I noted in Thompto that, “[p]ractically speaking, attorneys are the key to
obtaining relief from violations of individual and group rights in employment and many
other contexts.” 871 F. Supp. at 1120. “[T]he nature of the judicial system of this
country, civil and criminal, itself makes consultation, and often employment, of legal
23

representatives essential . . . .” Id. at 1120. “The importance of consultation and
employment of legal counsel to vindicate civil rights has also been recognized by
federal statutory provisions awarding attorney fees for parties who succeed in
vindicating those rights at trial . . . .” Id. For instance, 42 U.S.C. § 1988 allows
prevailing parties to collect reasonable attorney fees in federal civil rights litigation.
Similarly, Iowa’s legislature has passed fee-shifting statutes allowing successful litigants
to recover attorney fees under the Iowa Civil Rights Act. See, e.g., Iowa Code §
216.15(9)(a)(8).

“These fee-shifting statutes legislate a simple truth: In today’s

complex legal system, lawyers play a critical role in vindicating important public and
private rights.” Thompto, 871 F. Supp. at 1120.
Based on these observations, I held that an employer violates Iowa’s public
policy when it deters employees from consulting with an attorney about their legal
rights:
In light of the clear articulations of public policy favoring
consultation with attorneys in order to determine whether a
person has a legal problem, public policy favoring the
availability of competent legal advice, public policy placing
on lawyers a duty to counsel only actions that are legal and
just, and public policy favoring compensation of legal
counsel for individuals who endeavor to vindicate civil
rights, the court concludes that acts that impede an
individual from seeking legal advice would be injurious to
the public, or against the public good, would not be right
and just, and could potentially have a deleterious effect on
what affects the citizens of the State collectively. Such
conduct would therefore be in violation of public policy.
Id. at 1121 (internal quotation marks omitted); accord Chapman v. Adia Servs., Inc.,
688 N.E.2d 604, 609-10 (Ohio App. 1997) (relying, in part, on Thompto’s reasoning in
holding “that Ohio public policy encourages individuals to consult an attorney regarding
a possible claim”).
24

In the nearly two decades since I decided Thompto, the Iowa Supreme Court has
never explicitly recognized a public policy protecting an employee’s right to consult an
attorney, nor has the Iowa Supreme Court rejected such a public policy. The Iowa
Supreme Court has, however, held in Ballalatak v. All Iowa Agriculture Association
that Iowa’s public policy does not protect an employee who threatens to contact an
attorney on behalf of his or her coworkers. 781 N.W.2d 272, 279 (Iowa 2010). But,
contrary to the Siouxland Defendants’ assertion that “Thompto’s continued validity is
questionable” (docket no 119-1, at 20), the Court in Ballalatak explicitly left open the
possibility of “recogniz[ing] a right to consult or threaten to consult one’s own attorney
. . . .”

781 N.W.2d at 279 (emphasis added). In fact, Thompto did not purport to

recognize a public policy right to consult an attorney on behalf of third parties; rather,
Thompto recognized an employee’s right not to be fired “for threatening to consult an
attorney to vindicate what the employee believes to be his or her rights against an
employer . . . .” Thompto, 871 F. Supp. at 1121 (emphasis added).
The principles outlined in Thompto apply with even greater force to this case. In
Thompto, I held that Iowa’s public policy protected an employee who threatened to
consult an attorney about her employer’s decision to deny her husband cancer insurance
coverage, which is merely a permissible reason to consult an attorney. Id. at 1107-08.
In other words, Iowa law did not require the plaintiff in Thompto to take any action.
By contrast, this case involves a doctor’s mandatory duty to report malpractice under
Iowa law. As discussed above, the Iowa Administrative Code mandates that doctors
report other doctors’ negligence to the Iowa Board of Medicine. See Iowa Admin.
Code r. 653-22.2(2) (imposing a duty to report); id. r. 653-22.2(1) (defining reportable
conduct to include “wrongful acts or omissions”). “Failure to report a wrongful act or
omission in accordance with this rule within the required 30-day period shall constitute
a basis for disciplinary action against the licensee who failed to report.” Id. r. 65325

22.2(2)(e).

Based on these mandatory reporting regulations, Hagen had a duty to

report Eastman’s negligence.

If he did not, he exposed himself to discipline.

Following Thompto’s reasoning, if Hagen would have been protected in consulting an
attorney to bring a permissible cause of action, he must have at least as much protection
in consulting an attorney to meet a mandatory, legal duty.
In addition to Thompto, the Iowa Supreme Court’s holding in Jasper provides
support for protecting an employee who tells his or her employer that he is consulting
with an attorney regarding a mandatory legal obligation. Under Jasper, “the tort of
wrongful discharge not only protects the reporting of an activity violative of public
policy, but also protects the refusal by an employee to engage in activity that is
violative of public policy.”

764 N.W.2d at 767-68 (citing Fitzgerald v. Salsbury

Chem., Inc., 613 N.W.2d 275, 286 (Iowa 2000)). In fact, the employee in Jasper did
not report an administrative violation to anyone; rather, she told her employer that she
refused to violate an administrative regulation, which the Iowa Supreme Court held was
protected conduct. Id. at 758-59, 768. Like the employee in Jasper, Hagen did not
actually report Eastman to the Iowa Board of Medicine before the Siouxland Defendants
fired him. He did, however, tell the Siouxland Defendants that he might have to report
Eastman under Iowa’s reporting regulations. Thus, like the employee in Jasper, Hagen
made clear to his employer his intention to comply with Iowa’s administrative rules.
If Iowa law protects complying with, or stating an intention to comply with,
certain administrative regulations, it follows that Iowa law also protects any reasonable
steps an employee takes to determine how to comply with those regulations, which may
include consulting with an attorney. Applying this logic to the case at hand, if Iowa
law would protect Hagen in reporting Eastman to the Board, it must also protect Hagen
in determining whether he needed to report Eastman by talking with an attorney.
Iowa’s public policy would have little force if it only prohibited employers from firing
26

employees who actually complied with Iowa’s regulations, but not those who attempted
to comply with Iowa’s regulations. Cf. Rager v. Boise Cascade Corp., No. 88 C 1436,
1989 WL 31469, at *4 (N.D. Ill. Mar. 27, 1989) (“Whether an employer terminates an
employee for hiring an attorney to pursue a claim or waits until charges are formally
made and a claim is actually filed, the employer is effectively attempting to deter or
sabotage the employee’s effort to enforce his right to nondiscriminatory treatment.”).
An employee may need to contact an attorney to determine how to comply with Iowa’s
laws, and if those laws embody meaningful public policy goals, employers should not
be free to thwart those goals by firing employees who consult attorneys.
Iowa’s mandatory reporting regulation for doctors benefits the public at large,
and allowing employers to fire doctors who attempt to comply with this regulation by
contacting an attorney would obstruct that benefit. Thus, if I were deciding this issue, I
would find that Hagen informing the Siouxland Defendants that he had consulted with
an attorney about reporting Eastman’s negligence is protected conduct under Iowa law.
b.

Question 2: Whether contractual employees can bring
claims for wrongful discharge in violation of Iowa public
policy

Like the “protected conduct” issues discussed above, Iowa law similarly leaves
open the question of whether a contractual employee can sue for wrongful discharge, or
if this claim is only available to at-will employees.

While “Iowa courts have

consistently held that ‘an at-will employee has a cause of action for wrongful discharge
when the reasons for the discharge violate a clearly defined and well-recognized public
policy,’” no Iowa court has ever expressly limited wrongful discharge claims to at-will
employees, as opposed to contractual employees. Berry, 803 N.W.2d at 109 (citing
Jasper, 764 N.W.2d at 761). Based on Iowa’s law discussing the wrongful discharge
cause of action, I find it unlikely that the Iowa Supreme Court would foreclose a
wrongful discharge suit to a contractual employee.
27

At least one court has interpreted Iowa law to support extending the wrongful
discharge tort to contractual employees. In Vails v. United Community Health Center,
Inc., No. C11-4048-LTS, 2012 WL 6045941, at *10 (N.D. Iowa Dec. 5, 2012),
United States Magistrate Judge Strand held that he did “not believe that the Iowa
Supreme Court would . . . hold that the tort of wrongful discharge is available only to
at-will employees.” The court in Vails relied primarily on three of the Iowa Supreme
Court’s earlier cases involving claims for wrongful discharge in violation of public
policy. In Springer v. Weeks & Leo Co., Inc., 429 N.W.2d 558, 560-61 (Iowa 1988)—
the case that first recognized the wrongful discharge tort in Iowa—the Iowa Supreme
Court held that “the public policy of this state [protecting] an employee’s right to seek
the compensation which is granted by law for work-related injuries should not be
interfered with regardless of the terms of the contract of hire” (emphasis added).
Under Springer’s broad language, it does not matter that an employee bargained for
additional employment protections in an employment contract; the terms of that contract
have no effect on the employee’s right to bring a wrongful discharge claim.
Two months after the Iowa Supreme Court decided Springer, it had to decide in
Conaway v. Webster City Products Co., 431 N.W.2d 795, 796 (Iowa 1988), “whether
an employee covered by a collective-bargaining agreement providing a contractual
remedy for discharge without just cause may maintain . . . an action [for wrongful
discharge in violation of public policy].” The plaintiffs in Conaway claimed that they
were fired in retaliation for filing worker’s compensation claims. Id. But because the
plaintiffs were employed under a collective bargaining agreement, the district court
dismissed their claims as being preempted by section 301 of the Labor Management
Relations Act (LMRA).

Id.

The Iowa Supreme Court reversed the dismissal,

concluding that “the retaliatory tort actions . . . are independent of the collectivebargaining agreement and are therefore not preempted by section 301 of the LMRA . .
28

. because resolution of these actions does not require an interpretation of the collectivebargaining agreement.” Id. at 799. After finding that the plaintiff’s claims were not
preempted, the Iowa Supreme Court held that “[t]he plaintiffs’ actions are recognizable
state tort claims” and remanded the case to the district court. Id. at 800. Had the Iowa
Supreme Court intended to limit the wrongful discharge tort to at-will employees, it
could have avoided the preemption issue and simply held that the plaintiffs could not
maintain a wrongful discharge claim as contractual employees. But it did not, instead
choosing to address the preemption issue on its merits, which suggests that the Iowa
Supreme Court did not intend to limit the wrongful discharge tort to at-will employees.
Seven years after Conaway, the Iowa Supreme Court confronted a similar case in
Sanford v. Meadow Gold Dairies, Inc., 534 N.W.2d 410 (Iowa 1995). In Sanford, an
employee subject to a collective bargaining agreement claimed that he was fired for
seeking worker’s compensation benefits. Id. at 411, 413. In addressing a number of
issues on appeal, the court in Sanford noted that the plaintiff’s “retaliatory discharge
claim rests on our holdings that public policy is violated when an employee, even an
employee at-will, is discharged as a result of seeking workers’ compensation benefits.”
Id. at 412 (emphasis added). Relying on this language, the court in Vails reasoned that
“[t]he phrase ‘even an employee at-will’ is extremely inclusive. Instead of holding that
‘only’ at-will employees are protected from being discharged in violation of public
policy, the [Iowa Supreme] Court pointed out that ‘even’ those employees enjoy that
protection.”

2012 WL 6045941, at *9.

Again, this inclusive language seems to

presume that the wrongful discharge tort applies to contractual employees.
While the court in Vails relied on these early Iowa cases describing the wrongful
discharge claim, more recent decisions further support the conclusion that wrongful
discharge claims are not limited to at-will employees. For example, in Jasper, the
Iowa Supreme Court noted that “[w]e have used public policy to constrain legal
29

principles in many areas of the law, especially contracts.”

764 N.W.2d at 761

(emphasis added). In fact, the Court in Jasper noted that public policy considerations
lead the Iowa Supreme Court to invalidate a contract for slavery in one of its first
cases. Id. (citing In re Ralph, 1 Morris 1 (Iowa 1839)). And the Court also recognized
that “[w]hen a contract violates public policy, including a contract of employment, the
entire community is damaged.” Id. These statement suggest that Iowa’s public policy
considerations apply to contractual—not just at-will—employment relationships.
Moreover, Iowa courts have long recognized that public policy considerations
can limit the effect of contracts outside the employment context. See, e.g., Rogers v.
Webb, 558 N.W.2d 155, 156 (Iowa 1997) (“Contracts that contravene public policy
will not be enforced.” (citations omitted)); Skyline Harvestore Sys., Inc. v. Centennial
Ins. Co., 331 N.W.2d 106, 109 (Iowa 1983) (noting that Iowa courts “do not hesitate
to invalidate a contract which contravenes public policy,” but should do so sparingly);
Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980) (“A
contract which contravenes public policy will not be enforced by the courts.”); Liggett
v. Shriver, 164 N.W. 611, 612 (Iowa 1917) (“In general, however, it may be said that
any contract which conflicts with the morals of the times or contravenes any established
interest of society is contrary to public policy.”). Thus, contracts have never been
beyond the reach of Iowa’s public policy.
In addition to the Iowa Supreme Court’s language, the purpose behind the
wrongful discharge tort is best served by applying the tort to both contractual and atwill employees. Iowa’s wrongful discharge claim enforces “the communal conscience
and common sense of our state in matters of public health, safety, morals, and general
welfare.” Jasper, 764 N.W.2d at 761 (citing Truax v. Ellett, 15 N.W.2d 361, 367
(Iowa 1944)).

Whether an employer’s choice to fire an employee violates Iowa’s

“communal conscience” is completely independent of whether the fired employee was
30

at-will or contractual. The firing in either case harms “the entire community”—i.e.,
the public—which has an interest in discouraging employers from firing employees in
violation of Iowa’s public policy.
Still, in their post-trial brief, the Siouxland Defendants argue—without citation to
any authority—that a contractual “employee does not need the protections of the public
policy exception . . . [because] he has already negotiated the terms for termination in
the Employment Agreement” (docket no. 119-1, at 23). Their argument seems to be
that, when an employee negotiates an employment contract, the protections embodied in
Iowa’s public policy suddenly no longer apply to that employee because the employee
has separately bargained for protection in an employment agreement.

Stated

differently, their argument is that an employee with contractual protections no longer
needs public policy protections.
But the Siouxland Defendants’ argument incorrectly assumes that, by bargaining
for particular employment protections, an employee implicitly relinquishes all other
employment protections not explicitly stated in the employment agreement.

An

employee may explicitly relinquish some legal protections by entering into an
employment contract. See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273-74
(2009) (employment agreement may limit employee’s right to pursue AEDA claim in
federal court by requiring the employee to arbitrate the claim). But the idea that a
contractual employee forgoes certain common-law tort protections—especially those
intended to protect the public interest—is absurd. “For more than twenty-five years,
[Iowa courts] have considered a claim for wrongful discharge in violation of public
policy to be an intentional tort claim.” Rivera v. Woodward Res. Ctr., 830 N.W.2d
724, 732 (Iowa 2013). An employee who bargains for an employment contract does
not consent to being tortuously fired in violation of public policy any more than that
employee consents to other intentional torts.
31

Additionally, even if a contractual employee has bargained for contractual
remedies for wrongful termination, nothing prevents that employee from suing his or
her employer in both contract and tort. Iowa law holds that “where a duty recognized
by the law of torts exists between the plaintiff and defendant distinct from a duty
imposed by the contract . . . a tort action [will] lie for conduct in breach of the
contract.” Haupt v. Miller, 514 N.W.2d 905, 910 (Iowa 1994) (quoting Preferred
Mktg. Associates Co. v. Hawkeye Nat. Life Ins. Co., 452 N.W.2d 389, 397 (Iowa
1990)). An employer’s duty not to fire an employee in violation of public policy is
obviously independent of whether the employee has an employment contract. After all,
at-will employees can assert the tort even though they have no formal employment
contract. Thus, even if an employee’s tortious discharge is also prohibited by contract,
Iowa law does not force the employee to choose a contract claim instead of a tort claim.
Cf. Barske v. Rockwell Int’l Corp., 514 N.W.2d 917, 925 (Iowa 1994) (holding that an
employee can maintain a tort action for negligent misrepresentation independent of any
rights established in his collective bargaining agreement).
I recognize that there are at least two federal district courts that have suggested
that Iowa’s wrongful discharge tort is limited to at-will employees. See Gries v. AKAL
Sec., Inc., No. 06-CV-33-LRR, 2007 WL 2710034, at *35 n.14 (S.D. Iowa Aug. 27,
2007) (noting in a footnote that being “an at-will employee, [is] an obvious requirement
for . . . [a wrongful discharge in violation of] public policy claim”); Clark v. Eagle
Ottawa, LLC, No. 06-CV-2028-LRR, 2007 WL 581650, at *5 (N.D. Iowa Feb. 20,
2007) (“In order to state a claim for wrongful discharge in violation of public policy,
Plaintiff must show that he is an at-will employee.”). But Iowa law supports neither
court’s finding that wrongful discharge claims are limited to at-will employees. For
example, the court in Gries v. AKAL Securities, Inc. cites only Clark v. Eagle Ottawa,
LLC in support of its suggestion that only at-will employees can sue for wrongful
32

discharge. Gries, 2007 WL 2710034, at *35 n.14. And the court in Clark relies on
two Iowa cases—Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004) and
Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d 275, 280-81 (Iowa 2000)—neither
of which hold that only at-will employees can bring claims for wrongful discharge.
Clark, 2007 WL 581650, at *5. Because Gries and Clark do not consider the history
and language of Iowa’s wrongful discharge decisions discussed above, I do not find
them persuasive.
Simply put, the fact that an employee has an employment contract should not
make it any easier for an employer to fire the employee for reasons that the public
policy of Iowa deem reprehensible. Thus, I would find that both contractual and at-will
employees can sue for wrongful discharge in violation of Iowa’s public policy. But,
again, because Iowa law is undecided on this issue, I find that it would be more
appropriate to certify the issue to the Iowa Supreme Court.
c.

Question 3: Whether the lack of an “overriding business
justification” is an independent element of a claim for
wrongful discharge in violation of public policy

Iowa law appears to be unsettled as to how a jury should be instructed on the
elements of a wrongful discharge claim. In particular, it is unclear under Iowa law
whether an employer’s lack of an overriding business justification for firing an
employee is an independent element of a wrongful discharge claim, or if that element is
implicit in the requirement that an employee’s protected conduct be the determining
factor in an employer’s decision to fire the employee. In instructing the jury in this
case, I did not separately list the lack of an overriding business justification as an
element of the wrongful discharge tort. Rather, Jury Instruction No. 5 outlined the
elements for Hagen’s wrongful discharge as follows:
One, Dr. Hagen was employed by Siouxland.
....
33

Two, Dr. Hagen engaged in conduct protected by public
policy.
....
Three, Siouxland discharged Dr. Hagen from his
employment.
....
Four, Dr. Hagen’s conduct protected by public policy
was the determining factor in Siouxland’s decision to
discharge him.
A determining factor
need not be the main reason behind the
decision, but
must be the reason that tips the scales
decisively one way or the other
Siouxland must have known of the protected activity
before it made the decision to discharge Dr. Hagen.
A short time between Dr. Hagen engaging in the
protected activity and his discharge
is not enough, by itself, to find that the
protected activity was the determining factor in
the discharge, but
may be suspicious, in light of other evidence
that the discharge was for engaging in
protected activity
You should consider whether or not there are other
legitimate reasons or motives for the discharge.
If the defendants offer other reasons for the
discharge, you must determine whether those
other reasons are merely pretexts for a
discharge for engaging in protected activity
34

You may find that a reason is a pretext if it
was not the real reason, but is a reason given
to hide a discharge for engaging in protected
activity
If the reasons offered by Siouxland are
legitimate and not pretexts, you must
determine whether any protected conduct by
Dr. Hagen was nevertheless the determining
factor in his discharge
Five, the wrongful discharge caused injury to Dr. Hagen.
(Docket no. 110, at 9-11).
These instructions appear to be consistent with Iowa’s model civil jury
instructions, which similarly omit any reference to an overriding business justification.
Iowa’s model instructions list the following elements as comprising a wrongful
discharge claim:
1. (Plaintiff) was an employee of (defendant).
2. (Defendant) discharged (plaintiff) from employment.
3. (Plaintiff)’s (describe act protected by public policy, i.e.,
filing of worker’s compensation claim, etc.) was the
determining factor in (defendant)’s decision to discharge
(plaintiff).
4. The discharge was a cause of damage to (plaintiff).
5. The nature and extent of the damage.
Iowa Civil Jury Instruction 3100.1 (updated March 2012).
Despite the language in the model instructions, the Siouxland Defendants argue
that Jury Instruction No. 5 does not accurately reflect the elements of an Iowa wrongful
discharge claim.

Specifically, the Siouxland Defendants claim that I should have

required the jury to find that the Siouxland Defendants had no “overriding business
justification” for firing Hagen in order to find that Hagen was wrongfully discharged.
35

The Siouxland Defendants cite the elements of a wrongful discharge claim listed in
Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009), in support of their
argument that I should have instructed the jury on “an overriding business
justification.” The court in Jasper noted that the
elements [of a wrongful discharge claim] are: (1) existence
of a clearly defined public policy that protects employee
activity; (2) the public policy would be jeopardized by the
discharge from employment; (3) the employee engaged in
the protected activity, and this conduct was the reason for
the employee’s discharge; and (4) there was no overriding
business justification for the termination.
Id. (citing Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004); Fitzgerald v.
Salsbury Chem., Inc., 613 N.W.2d 275, 282 n.2 (Iowa 2000)) (emphasis added). But,
while the court in Jasper listed “no overriding business justification” as an element, it
provided no guidance as to how that element should be applied.
Based on the elements in Jasper, the Siouxland Defendants argue that the
instructions in this case allowed the jury to find for Hagen without ever considering
whether the Siouxland Defendants had an overriding business justification for firing
him. I omitted any reference to an overriding business justification because I found that
the business justification element was implicit in the determining factor instruction.
Specifically, Instruction No. 5 required the jury to find that Hagen’s protected activity
was the “determining factor” in the Siouxland Defendants’ decision to fire him. The
instructions defined a determining factor as “the reason that tips the scales decisively
one way or the other.” Thus, in order to find the Siouxland Defendants liable, the jury
had to conclude that, out of all the potential reasons for firing Hagen, the reason that
ultimately tipped the scale was Hagen’s protected activity.
In my view, the instructions did not prevent the jury from considering other,
potentially legitimate reasons for firing Hagen.
36

I instructed the jury to “consider

whether or not there are other legitimate reasons or motives for the discharge.” If the
Siouxland Defendants proffered legitimate reasons for firing Hagen, I instructed the
jury to (1) determine if those proffered reasons were real (i.e., not pretextual) and (2) if
they were real, to resolve whether those reasons were the determining factors in firing
Hagen, or if Hagen’s protected activity was nevertheless still the determining factor.
Under these instructions, if the Siouxland Defendants had a legitimate business
justification for firing Hagen, the jury could have considered that and found in favor of
the Siouxland Defendants, assuming that the business justification was not pretextual
and was the reason that ultimately persuaded the Siouxland Defendants to fire Hagen.
Thus, while the instructions did not use the phrase “overriding business justification,”
they provided ample room for the jury to consider such justifications.
The instructions did not, however, allow the jury to find for the Siouxland
Defendants based on the mere possibility that the Siouxland Defendants could have
fired Hagen for a legitimate business reason.

Nothing in Iowa law supports the

proposition that merely having an alternative business reason for firing an employee can
insulate an employer from a wrongful discharge claim where the evidence shows that
the reason that actually tipped the scales toward firing that employee violates public
policy.

Instead, if the Siouxland Defendants had a mixture of legitimate and

illegitimate reasons for firing Hagen, the jury could have found for the Siouxland
Defendants only if the legitimate reasons ultimately tipped the scale in favor of firing
Hagen.

See Fitzgerald, 613 N.W.2d at 289 (“The protected conduct must be the

determinative factor in the decision to terminate the employee.”); Teachout v. Forest
City Cmty. Sch. Dist., 584 N.W.2d 296, 302 (Iowa 1998) (“A factor is determinative if
it is the reason that ‘tips the scales decisively one way or the other,’ even if it is not the
predominant reason behind the employer’s decision.” (footnote omitted)).

37

In other

words, the causation element focuses on what actually moved the employer to fire an
employee, rather than what could have moved the employer.
Still, the Siouxland Defendants argue that treating the overriding business
justification element together with the causation element—Jasper’s element 3—renders
the business justification element superfluous. Posed differently: Why would the court
in Jasper list the overriding business justification element separately if it was supposed
to be implicit in the causation element? This apparent tension may arise from the fact
that Iowa’s four-element wrongful discharge test derives from a similar four-element
test that applies a different causation element than Jasper. Following Jasper’s citation
trail, Jasper relies on Fitzgerald, which in turn cites two non-Iowa cases—Gardner v.
Loomis Armoured, Inc., 913 P.2d 377, 382 (Wash. 1996), and Collins v. Rizkana, 652
N.E.2d 653, 657 (Ohio 1995)—for the elements of a wrongful discharge claim.
Fitzgerald, 613 N.W.2d at 282 n.2. Both Gardner and Collins adopt a four-element
wrongful discharge test from two writings authored by Henry H. Perritt, Jr.

See

Gardner, 913 P.2d at 382 (citing Henry H. Perritt Jr., Workplace Torts: Rights and
Liabilities (1991)); Collins, 652 N.E.2d at 658 (citing Henry H. Perritt, Jr., The Future
of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, 58 U. Cin. L.
Rev. 397, 398-99 (1989)).

Thus, tracing Jasper’s elements to their root, Iowa’s

wrongful discharge elements may derive from the following four-element test:
1. That a clear public policy existed and was manifested in a
state or federal constitution, statute or administrative
regulation, or in the common law (the clarity element).
2. That dismissing employees under circumstances like those
involved in the plaintiff’s dismissal would jeopardize the
public policy (the jeopardy element).
3. The plaintiff’s dismissal was motivated by conduct related
to the public policy (the causation element).
38

4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding justification
element).
Perritt, 58 U. Cin. L. Rev. at 398-99. Upon first glance, these elements appear the
same as those in Jasper.
But the language in element 3—the causation element—transformed somewhere
between Perritt and Jasper. Perritt’s test—at least the one quoted above—requires only
that a “plaintiff’s dismissal was motivated by conduct related to the public policy,”
whereas Jasper’s test requires that a plaintiff’s protected “conduct was the reason for
the [plaintiff’s] discharge.” In fact, despite the fact that all of the cases mentioned
above ostensibly derive from the same author, they phrase the causation element
differently. See Gardner, 913 P.2d at 382 (“The plaintiffs must prove that the publicpolicy-linked conduct caused the dismissal (the causation element)” (quoting Perritt,
Workplace Torts: Rights and Liabilities § 3.19)); Collins, 652 N.E.2d at 658 (“The
plaintiff’s dismissal was motivated by conduct related to the public policy (the causation
element).” (quoting Perritt, 58 U. Cin. L. Rev. at 399)); Fitzgerald, 613 N.W.2d at
282 n.2 (“The plaintiff engaged in public policy conduct and this conduct was the
reason for the dismissal (the causation element).” (citing Gardner, 913 P.2d at 382;
Collins, 652 N.E.2d at 658)); Lloyd, 686 N.W.2d at 228 (“The challenged discharge
was the result of participating in the protected activity.” (citations omitted)).
Listing a separate business justification element makes more sense where the
attendant causation element requires only that a “plaintiff’s dismissal was motivated by
conduct” violating public policy. If an employer was motivated by both legitimate and
illegitimate reasons in firing an employee, a causation element requiring only that
illegitimate reasons motivated the employer would allow a jury to find for the employee
even if the employer’s legitimate reasons were the determining factors in the firing
decision.

In that case, the overriding business justification element clarifies the
39

causation element to ensure that the employer can escape liability based on the
overriding business reasons. Listing a separate business justification element makes
less sense where the attendant causation element requires that the illegitimate reason is
the reason—interpreted to mean the determinative reason—that an employee was fired.
In that case, as in this one, the business justification element appears to be implicit in
the causation element.
While I would find that the overriding business justification element is implicit in
Instruction No. 5’s causation element, I recognize that Iowa law does not clearly
resolve the issue. Thus, I find that, because this issue is unsettled under Iowa law, the
first certification factor weighs in favor of certifying Question 3 to the Iowa Supreme
Court.
2.

Availability of legal resources

The second factor to consider before certification is the availability of legal
resources which would aid the court in coming to a conclusion on the legal issue. See
Leiberkneckt, 980 F. Supp. at 310; see also Erickson-Puttmann, 212 F. Supp.2d at 975
n.6.

Both the Iowa Supreme Court and I often resolve cases involving wrongful

discharge claims. I believe that the Iowa Supreme Court and I have roughly equal
resources at our disposal to resolve questions of law, like those certified in this opinion.
Thus, I conclude this factor weighs neither in favor of, nor against, certification.
3.

Court’s familiarity with state law

The third factor concerns my familiarity with pertinent state law.

See

Leiberkneckt, 980 F. Supp. at 310; see also Erickson-Puttmann, 212 F. Supp. 2d at 975
n.6; Olympus Alum. Prod., 930 F. Supp. at 1309 n.10.

Sitting in diversity, I am

frequently called upon to consider, construe, and apply Iowa law. See Hiatt v. Mazda
Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996) (“[I]n a suit based on diversity of
citizenship jurisdiction the federal courts apply . . . the substantive law of the relevant
40

state.” (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)); Northland Cas. Co. v.
Meeks, 540 F.3d 869, 874 (8th Cir. 2008) (noting that, if a state-law issue is
undecided, the federal courts must try to predict how the state supreme court would
rule on the issue). I have also resolved numerous cases involving claims for wrongful
discharge in violation of Iowa’s public policy. See, e.g., Johnson v. Dollar Gen., 880
F. Supp. 2d 967, 997 (N.D. Iowa 2012), aff’d, 508 F. App’x 587 (8th Cir. 2013);
Campbell v. Iowa Third Judicial Dist. Dep’t of Corr., No. C09-4087-MWB, 2011 WL
5866244, at *1 (N.D. Iowa Nov. 22, 2011); Truckenmiller v. Burgess Health Ctr., 814
F. Supp. 2d 894, 912 (N.D. Iowa 2011); Hussaini v. Gelita USA, Inc., 749 F. Supp.
2d 909, 919 (N.D. Iowa 2010); Dollar v. Smithway Motor Xpress, Inc., No. C09-3043MWB, 2010 WL 3723900, at *4 (N.D. Iowa Sept. 15, 2010); Beekman v. Nestle
Purina Petcare Co., 635 F. Supp. 2d 893, 921 (N.D. Iowa 2009); Raymond v. U.S.A.
Healthcare Ctr.-Fort Dodge, L.L.C., 468 F. Supp. 2d 1047, 1058-59 (N.D. Iowa
2006). Given my familiarity with the state-law wrongful discharge claim at issue in this
case, I find that this factor weighs slightly against certification.
4.

Time demands on comparative court dockets

The fourth factor addresses the relative docket load of the courts.

See

Leiberkneckt, 980 F. Supp. at 310; see also Erickson-Puttmann, 212 F. Supp.2d at 975
n.6; Olympus Alum. Prod., 930 F. Supp. at 1309 n.10. I recognize that both myself
and the Iowa Supreme Court are pressed for time to consider the cases before us. I
further recognize that requests to respond to certified questions should not be made
lightly. Given that both the Iowa Supreme Court and I have similar resources and busy
dockets, I conclude that this factor is neutral, weighing nether in favor of, nor against,
certification.

41

5.

Frequency legal issue is likely to reoccur

The fifth factor concerns the frequency that the legal issue in question is likely to
reoccur. See Leiberkneckt, 980 F. Supp. at 310; see also Erickson-Puttmann, 212 F.
Supp.2d at 975 n.6; Olympus Alum. Prod., 930 F. Supp. at 1309 n.10.

In my

experience, employment discrimination and wrongful termination claims are causes of
action that plaintiff-employees assert relatively frequently. A quick Westlaw search
reveals that the Iowa Supreme Court and Iowa Court of Appeals have decided at least
eighteen cases involving claims for wrongful discharge in violation of Iowa public
policy in the last three years alone. Because the questions I propose for certification
affect not only what types of wrongful discharge claims are cognizable under Iowa law,
but also what types of employees can assert such claims, I find that the legal issues
raised in this case are likely to reoccur, which weighs in favor of certification.
6.

Age of litigation and prejudice from certification

The sixth factor concerns the age of the current litigation and the possible
prejudice to the litigants which may result from certification. See Leiberkneckt, 980 F.
Supp. at 311; see also Erickson-Puttmann, 212 F. Supp.2d at 975 n.6; Olympus Alum.
Prod., 930 F. Supp. at 1309 n.10. This case has been pending for over three years,
but the parties only recently went to trial and received a jury award in May 2013.
Thus, the disputed award is only a few months old. It has been my experience that
certification delays a case approximately one year. While I generally do not prefer to
delay judgment for any amount of time, I note that the parties in this case are relatively
well-to-do doctors who would likely not be prejudiced by delaying a final award in the
same way other litigants might be.
There are also countervailing concerns here: There is a risk that the parties in
the case could be prejudiced if I do not certify the questions discussed above. The
validity of the jury’s award depends on the controlling questions of Iowa law that I
42

propose to certify to the Iowa Supreme Court. If I were to affirm the jury’s award to
Hagen based on my interpretation of Iowa law, only to have the Iowa courts later
decide that my interpretation is incorrect, my decision would effectively prejudice the
Siouxland Defendants by sticking them with a judgment based on an erroneous
interpretation of Iowa law.
Additionally, no matter which way I rule on the parties’ post-trial motions, this
case is likely to be appealed, and thus delayed. Given the inevitability of delay, the
question becomes: Which court should decide the issues presented in this case, the
Iowa Supreme Court or the Eighth Circuit Court of Appeals? While the Eighth Circuit
Court of Appeals could appropriately decide a number of issues raised in the post-trial
motions—like the Siouxland Defendants’ evidentiary objections—the questions of first
impression under Iowa law presented in this order are more appropriate for the Iowa
Supreme Court.
Given the relatively minor delay caused by certification, the prejudice that may
result without certification, the inevitability of delay, and the fact that this case involves
questions of first impression most appropriately resolved by the Iowa Supreme Court, I
find that this factor weighs slightly in favor of certification.
7.

Whether there is a split in authority

Finally, the seventh factor requires me to consider “whether there is any split of
authority among those jurisdictions that have considered the issues presented in similar
or analogous circumstances.” Leiberkneckt, 980 F. Supp. at 311. There is relatively
little case law addressing the precise issues underlying Question 1, but other
jurisdictions appear split as to how strictly to apply the wrongful discharge tort under
similar circumstances. Other jurisdictions are decidedly split on Question 2. Because
other authorities are split on these issues, I find that this factor weighs in favor of
certification.
43

a.

Question 1: Whether other courts recognize Protected
Conduct 3, 4, or 5 as protected activities that can support
claims for wrongful discharge in violation of public policy
i.

Protected Conduct 3: A doctor reporting nurses’
malpractice to the hospital where the malpractice
occurred

Iowa courts have not yet decided whether a doctor stating an intention to report
nurses’ malpractice to a hospital—i.e., Protected Conduct 3—constitutes protected
activity supporting a wrongful discharge claim. Very few cases from other jurisdictions
address this issue, even indirectly. To further complicate matters, Protected Conduct 3
involves two unusual wrinkles: (1) Hagen threatened to report nurses’ malpractice
when Iowa’s mandatory reporting laws required only that he report doctors’
malpractice, see Iowa Code § 272C.9(2) (requiring licensee to report misconduct
“committed by another person licensed by the same licensing board”); and (2) Hagen
threatened to report the nurses to St. Luke’s hospital when Iowa’s mandatory reporting
law required only that licensees report malpractice to their board, which in this case
would be the Board of Medicine, see id. Despite these wrinkles, cases from other
jurisdictions provide guidance as to whether Protected Conduct 3 is protected activity
for the purpose of maintaining a wrongful discharge claim.
A number of other jurisdictions would likely find that Hagen’s open intention to
report other medical professionals’ malpractice to a hospital constitutes protected
activity, regardless of whether the law obliged Hagen to make such a report. For
example, in Taimoorazy v. Bloomington Anesthesiology Serv., Ltd., 122 F. Supp. 2d
967, 975 (C.D. Ill. 2000), a plaintiff anesthesiologist “claim[ed] that he was discharged
from his employment because he reported quality of care issues concerning [his medical
partners] to the administration at [a hospital] instead of handling those issues discreetly
within [his medical partnership].” In particular, the plaintiff complained to the hospital
44

where he worked that some of his colleagues were falling asleep or leaving the room
during medical procedures involving unconscious patients. Id. The court held that the
plaintiff could maintain a claim for wrongful discharge. Id. at 976. In allowing the
plaintiff’s claim to proceed, the court recognized that
this type of allegation is clearly related to the fundamental
public policy favoring the effective protection of the lives of
citizens. This is particularly so in situations like those
involved in this case, where the physician’s duties arise from
instances where the patients are unconscious at the time of
the alleged wrongdoing and are especially vulnerable to risk
of harm or death resulting from neglect by the attending
anesthesiologist.
Id. at 975 (emphasis added).

Thus, the court held that “a reasonable jury could

conclude that [the plaintiff’s] termination was motivated by a desire to punish him for
airing [his partners’] dirty laundry, so to speak, to the hospital administration instead of
handling it quietly among the members of the group.” Id. at 975-76. The court held so
without relying on, or even referencing, any statute requiring the plaintiff to report his
colleagues’ misconduct.
The circumstances in Taimoorazy are strikingly similar to this case.

While

Taimoorazy involved a doctor complaining about other doctors, rather than nurses, both
the plaintiff in Taimoorazy and Hagen reported (or threatened to report) to a hospital
medical malpractice committed against vulnerable patients. And both were allegedly
fired for going to (or threatening to go to) a hospital with their reports, rather than to
any board of medicine. The court’s holding in Taimoorazy suggests that a doctor’s
decision to report malpractice enforces the “public policy favoring the effective
protection of the lives of citizens,” which, in Taimoorazy, was independent of any
statutory reporting obligation. Id. at 975. Thus, under Taimoorazy, it is irrelevant that
Hagen had no statutory obligation to report nurses or to report to a hospital; the fact
45

that he threatened to inform a hospital of malpractice committed against vulnerable
patients was sufficient to invoke public policy protections.
Similarly, in Shores v. Senior Manor Nursing Center, Inc., 518 N.E.2d 471, 474
(Ill. Ct. App. 1988), the Illinois Appellate Court noted that “[Illinois courts] have held
that even when there is no statutory duty to report an apparent violation of the law, a
person states a cause of action for retaliatory discharge by alleging he was discharged
for reporting the apparent violation.” In Shores, a plaintiff nurse claimed that she was
fired from a nursing home “for complying with her statutory duty to report abuse and
neglect” of nursing home residents. Id. at 474. The plaintiff reported alleged neglect
to the nursing home’s administrator, but not to the Department of Public Health (the
Department), though Illinois law required her to report to both. Id. at 472, 475. In its
defense, the nursing home argued that Illinois’s
Nursing Home Care Reform Act expressly prohibits the
discharge of an employee who reports abuse or neglect to
the Department, but does not expressly prohibit the
discharge of an employee who reports only to the facility
administrator, and that consequently the legislature intended
to recognize a cause of action for retaliatory discharge for
employees who report to the Department but not for
employees who report only to the facility administrator.
Id. at 474. The court rejected the nursing home’s argument, noting that, while the
Nursing Care Reform Act only expressly prohibited firing a nurse who reported to the
Department, the Act still “impose[d] a duty on employees to report abuse and neglect to
not only the Department, but also to the facility administrator.” Id. at 475. The court
reasoned that “[t]he protection of residents . . . often may be better served if a report is
first made to the administrator who likely can more quickly remedy the situation than
can the Department.” Id. “Under the [nursing home’s] argument . . . a nursing home
would have an incentive to immediately discharge employees who have reported abuse
46

and neglect to the administrator but have not yet had the opportunity to notify the
Department” despite the fact that, “in many instances, an employee would have good
reason to report abuse or neglect first to the administrator.” Id. at 475-76. Given that
the plaintiff had a duty to report to the administrator and the Department, the court
concluded that
[i]f a person under no duty to report violations of the law
possesses a cause of action for retaliatory discharge when he
is discharged for reporting a violation, surely a person who
does have such a duty [like the plaintiff] must also possess a
cause of action when discharged in retaliation for complying
with this duty.
Id. at 474.
Shores illustrates two points applicable to this case.

First, reporting patient

neglect may be protected by public policy “even when there is no statutory duty to
report an apparent violation of the law.”

Id. at 474; see also Palmateer v. Int’l

Harvester Co., 421 N.E.2d 876, 880 (Ill. 1981) (holding that public policy protects
employees who report crime even when they have no obligation to do so); Johnson v.
World Color Press, Inc., 498 N.E.2d 575, 580 (Ill. Ct. App. 1986) (“Public policy
favors employees attempting to ensure management’s compliance with the requirements
of the law and public policy.”); cf. Young v. Ferrellgas, L.P., 21 P.3d 334, 337
(Wash. Ct. App. 2001) (finding that an employee stated a wrongful discharge claim
based, in part, on his claim that he was fired for reporting his employer’s safety
regulation violations, even though the employee cited no statutory duty to report).
Thus, as was the case in Taimoorazy, the limits on Hagen’s statutory duty to report
malpractice may be irrelevant. Second, even where a statute explicitly protects reports
made to one entity but not another, a state’s public policy may still protect reports made
to both entities if those reports serve to benefit medical patients.

Admittedly, the

plaintiff in Shores had a statutory duty to report to both her facility administrator and
47

the Department, whereas Hagen only had a duty to report to the Board of Medicine.
But like the plaintiff in Shores, Hagen may have had “good reason to report abuse or
neglect first to the [hospital]”—for instance, reporting to the hospital first may have
been faster or more likely to affect a change in Maria Maedas’s care. Thus, public
policy protections may attach to Hagen’s threatened, extra-statutory reporting.
The Siouxland Defendants argue in their Reply brief that the standards in Iowa’s
licensing laws do not “relate in any way to the conduct at issue in this case except at the
very highest levels of generality,” and therefore these laws cannot form the basis for a
wrongful discharge claim (docket no. 133, at 1-2). As is discussed below, a number of
cases support this argument. But other cases suggest that licensing statutes that broadly
prescribe the “minimum standards” of competency for medical licensees can support a
wrongful discharge claim. For instance, in Deerman v. Beverly California Corp., 518
S.E.2d 804, 805 (N.C. Ct. App. 1999), a nurse brought a wrongful discharge claim
against a nursing center after the center fired her for advising one of her patient’s
families that they should switch physicians because the current physician was not
providing appropriate treatment. To support her claim that her termination violated
public policy, the nurse relied on North Carolina’s Nursing Practice Act (NPA), which
sets forth the “minimum standards of nursing care” in terms similar to those in Iowa’s
licensing statutes. Id. at 807. For example, the NPA states “that mandatory licensure
of all who engage in the practice of nursing is necessary to ensure minimum standards
of competency and to provide the public safe nursing care.” Id. (quoting N.C.G.S. §
90-171.19). The NPA also creates a nursing board, N.C.G.S. § 90-171.21, which is
authorized to revoke or suspend any nurse’s license who “[e]ngages in conduct that
endangers the public health” or “[i]s unfit or incompetent to practice nursing by reason
of deliberate or negligent acts or omissions regardless of whether actual injury to the
patient is established,” among other reasons. Id. (quoting N.C.G.S. §§ 90-171.37(4)48

(5)). And “the NPA and regulations of the Board of Nursing describe the practice of
nursing as ‘assessing,’ a patient’s health, which entails a ‘responsibility’ to
communicate, ‘counsel,’ and ‘provid[e] accurate . . . guidance to clients [and] their
families.’” Id. at 808 (quoting N.C.G.S. § 90-171.20(7); N.C. Admin. Code Tit. 21,
r. 36.0224(h)) (internal citations omitted).
Based on these broad standards, the nurse claimed that she was “fulfilling her
responsibilities as a practicing nurse” by telling her patient’s family to see another
physician, and therefore her firing violated public policy. Id. The court in Deerman
agreed, holding that “[t]he NPA and attendant administrative regulations . . . evidence
a clear public policy in North Carolina to protect public safety and health by
maintaining minimum standards of nursing care.” Id. at 807. The court also noted that
the NPA’s “broad language” did not prevent it from supporting a wrongful discharge
claim:

“While the language of the NPA and attendant regulations is broad and

frequently expressed with a definitional bias, we are not persuaded by defendant’s
contention that neither the statutes nor regulations issued thereunder impose any
requirements or express any prohibitions relevant to plaintiff’s cause herein.” Id. at
808 (internal quotation marks omitted).

In short, the court “conclude[d] that the

allegations of plaintiff’s complaint, taken as true and liberally construed, support her
contention that the statements which led to her termination were proffered in fulfillment
of her ‘teaching and counseling’ obligations as a licensed nurse.” Id. at 809; see also
Kirk v. Mercy Hosp. Tri-Cnty., 851 S.W.2d 617, 622 (Mo. Ct. App. 1993) (holding
“that [Missouri’s Nursing Practice Act] and regulations thereunder constitutes a clear
mandate of law on which a cause of action for wrongful discharge in violation of public
policy can be based”); cf. Aviles v. McKenzie, No. C-91-2013-DLJ, 1992 WL 715248,
at *9-10 (N.D. Cal. Mar. 17, 1992) (medical lab employee stated a wrongful discharge
claim after claiming he was fired for reporting to his supervisor “violations of specific
49

statutes that ensure that medical laboratories engage in safe and accurate practices so
that medical patients may be properly diagnosed and treated”); Thomas v. Med. Ctr.
Physicians, P.A., 61 P.3d 557, 565 (Idaho 2002) (“Employees are protected under the
public policy exception to the at-will doctrine for reporting [to a medical center] the
falsification of medical records and the performance of unnecessary operations to
bolster a physician’s income.”).
Still, other jurisdictions apply stricter limits to wrongful discharge claims. In
fact, some courts refuse to extend public policy protections to reports of patient abuse if
those reports are not made to the correct entity as defined by statute. For example, in
Boyd v. Ohio Dept. of Mental Health, No. 10AP-906, 2011 WL 2905583, at *1-2
(Ohio Ct. App. July 21, 2011), a plaintiff police officer who worked at a mental health
facility claimed that he was wrongfully fired for reporting patient neglect to the
facility’s supervisor. To support his claim, the officer pointed to two statutes, which he
claimed protected him from being fired for his report:
Pursuant to R.C. 5101.61(B), “[a]ny person having
reasonable cause to believe that an adult has suffered abuse,
neglect, or exploitation may report, or cause reports to be
made of such belief[,] to the [county] department” of job
and family services. R.C. 5101.61(E) prohibits an employer
from “discharg[ing], demot[ing], transfer[ring], prepar[ing]
a negative work performance evaluation, or reduc[ing]
benefits, pay, or work privileges, or tak[ing] any other
action detrimental to an employee or in any way retaliat[ing]
against an employee as a result of the employee’s having
filed a report under this section.”
Id. at *8 (alterations in original). “Based on R.C. 5101.61, [the court] conclude[d]
[that] the General Assembly has set forth a clear public policy which forbids an
employer from discharging an employee for reporting adult abuse, neglect, or
exploitation to the county department of job and family services.” Id. at *9 (emphasis
50

added). But the officer never reported neglect to the county department, only to his
supervisor. Id.
Because the officer had not reported to the entity required by statute, he argued
that the court should “expand the protection afforded by R.C. 5101.61(E) to employees
who report adult abuse, neglect, or exploitation to any person with the authority to
proceed on the issues of neglect and abuse.”

Id. (internal quotations omitted and

emphasis added). But the court “decline[d] to broaden the scope of the public policy
instituted by the General Assembly,” because doing so “would, in effect, create new
public policy.” Id. Thus, because the officer reported neglect to his supervisor, rather
than to the court department, public policy did not protect his report. Id.; see also
Diberardinis-Mason v. Super Fresh, 94 F. Supp. 2d 626, 630 (E.D. Pa. 2000) (noting
that “Pennsylvania courts have held that internal company reports will not support a
wrongful discharge claim” (emphasis added)); Wright v. Shriners Hosp. for Crippled
Children, 589 N.E.2d 1241, 1244-45 (Mass. 1992) (holding that even when statutes
impose reporting duties on nurses to report certain types of patient neglect to particular
state departments, no public policy protected a nurse’s “internal report” criticizing the
hospital where she worked).
Other courts refuse to extend public policy protections to employees who report
medical misconduct but do not have a statutory duty to do so.

For example, in

Diberardinis-Mason v. Super Fresh, a plaintiff grocery-store pharmacist attempted to
invoke public policy protections after she reported other pharmacists’ dispensing
“irregularities” to her store manager, the store doctor, and a security guard. 94 F.
Supp. 2d at 629. The reporting pharmacist relied on Pennsylvania’s Pharmacy Act,
which provides
that the Board of Pharmacy may revoke or suspend the
license of a pharmacist who has “acted in such a manner as
to present an immediate and clear danger to the public health
51

or safety” or is “guilty of incompetence, gross negligence or
other malpractice, or the departure from, or failure to
conform to, the standards of acceptable and prevailing
pharmacy practice.”
Id. (quoting 63 Pa. Stat. Ann. §§ 390-5(a)(11)-(12)). But the court noted that “the
alleged sources of public policy are, in fact, general guidelines for pharmacists’
conduct” and that “[i]t is not at all apparent from the face of the statute that [the
pharmacist] had an affirmative duty to report suspicious behavior to the authorities . . .
.” Id. at 630 (emphasis added). “Thus, while her desire to ferret out illegal activity
may be laudable,” the court held that the Pharmacy Act “[would] not form the basis of
a wrongful discharge claim.”

Id. (footnote omitted); see also Thompson v. Mem’l

Hosp. at Easton, Maryland, Inc., 925 F. Supp. 400, 407-08 (D. Md. 1996) (noting that
a plaintiff radiation physicist “may have felt morally obligated to report [his hospital’s]
misadministrations . . . . [But] plaintiff was under no legal duty to act as he did, and
therefore any public policy embodied in [the statute imposing a duty to report on the
hospital] does not protect plaintiff from discharge”); Fraser v. Nationwide Mut. Ins.
Co., 352 F.3d 107, 112 (3d Cir. 2003) (noting that “Pennsylvania courts ‘have
repeatedly rejected claims that a private employer [as opposed to a public employer]
violated public policy by firing an employee for whistleblowing, when the employee
was under no legal duty to report the acts at issue’” (quoting Donahue v. Fed. Express
Corp., 753 A.2d 238, 244 (Pa. Super. 2000))); Mullins v. Int’l Union of Operating
Engineers Local No. 77 AFL--CIO of Washington, D.C., 214 F. Supp. 2d 655, 667
(E.D. Va. 2002), aff’d, 60 F. App’x 510 (4th Cir. 2003) (“Only if Maryland law
compelled Mullins to report drug use would she have a legally cognizable claim under
Maryland law for wrongful discharge.”).
Finally, a number of courts hold that statutes, and other professional regulations,
articulating general standards for medical licensees’ conduct are not sufficiently specific
52

to embody an actionable public policy exception. See Thompson, 925 F. Supp. at 409
(“[T]he Court would agree that the overall regulatory scheme of the Maryland
Radiation Act indeed places an emphasis on health and safety. However, such a general
policy does not constitute a mandate of public policy which is sufficiently clear that it
will support plaintiff’s claim for wrongful discharge asserted under Maryland law.”);
Diberardinis-Mason, 94 F. Supp. 2d at 630 (Here, the alleged sources of public policy
are, in fact, general guidelines for pharmacists’ conduct . . . . [I]t will not form the
basis of a wrongful discharge claim.” (footnote omitted)); Goodman v. Wesley Med.
Ctr., L.L.C., 78 P.3d 817, 823 (Kan. 2003) (“Because the [Kansas Nurse Practice Act]
does not provide definite or specific rules, regulations, or laws, it cannot be the basis
for a retaliatory discharge claim.”); Eusterman v. Nw. Permanente, P.C., 129 P.3d
213, 219 (Or. Ct. App. 2006) (holding that statutes providing “that a doctor ‘has the
duty to use that degree of care, skill and diligence that is used by ordinarily careful
physicians’ in comparable circumstances [;] . . . [and] that the Board of Medical
Examiners may suspend or revoke the license of a doctor for unprofessional or
dishonorable conduct, which . . . include[s] conduct or practices that violate ethical
standards or that might endanger patients or impair a physician’s ability to practice
medicine safely and skillfully . . . are too general to create a public duty applicable
under these particular circumstances”); Pierce v. Ortho Pharm. Corp., 417 A.2d 505,
514 (N.J. 1980) (holding that “the Hippocratic oath does not contain a clear mandate of
public policy” that can support a wrongful discharge claim); Aiken v. Bus. & Indus.
Health Grp., Inc., 886 F. Supp. 1565, 1571 (D. Kan. 1995), aff’d sub nom. Aiken v.
Employer Health Servs., Inc., 81 F.3d 172 (10th Cir. 1996) (holding that “very general
statutory provisions and ethical rules” governing physicians cannot support a claim for
wrongful discharge).

53

Because courts in other jurisdictions are spilt as to how broadly (or narrowly)
medical licensing and reporting statutes should be construed to support (or reject) a
public policy underlying a wrongful discharge claim, I find that the seventh certification
factor weighs in favor of certifying the issue of whether Protected Conduct 3 is a
protected activity under Iowa law.
ii.

Protected Conduct 4: A doctor disclosing to a
patient’s family that the patient was a victim of
medical malpractice

There appear to be very few cases discussing whether Protected Conduct 4—a
doctor disclosing to a patient’s family that the patient was a victim of medical
malpractice—constitutes protected activity. But two cases in particular suggest that
public policy protects a doctor who discloses this information to a patient or the
patient’s family. First, in Deerman—introduced above—a plaintiff nurse claimed she
was wrongfully fired for advising a patient’s family that they should “reconsider [their]
choice of physicians” because “appropriate treatment had not been provided for [the
patient] buy her physician.”

518 S.E.2d at 805.

The nurse claimed that North

Carolina public policy—embodied in the state’s Nursing Practice Act and its attendant
regulations—prevented her employer, a nursing center, from firing her for “teaching
and counseling” the patient’s family to seek another physician. Id. at 807-08.
The nurse relied on a number of broad provisions of “the Nursing Practice Act
(NPA), N.C.G.S. §§ 90-171.19 [through] 90-171.47 (1993), and the administrative
regulations promulgated thereunder.” Id. at 807 (footnote omitted). Those provisions
included the following:
G.S. § 90-171.19 expressly provides:
The General Assembly of North Carolina finds that
mandatory licensure of all who engage in the practice
of nursing is necessary to ensure minimum standards
54

of competency and to provide the public safe nursing
care.
(emphasis added). Further, G.S. § 90-171.21 creates a
“Board of Nursing” (the Board) charged, inter alia, with
setting minimum standards for educational programs
preparing persons for licensure under the Act, and with
licensing qualified applicants, G.S. § 90-171.23(b)(6), (8).
In addition, the Board oversees disciplinary action under the
NPA, “caus[ing] the prosecution of all persons violating
[provisions of the Act],” G.S. § 90-171.23(b)(7), and is
authorized to revoke or suspend the license of a registered
nurse or applicant who:
(4) Engages in conduct that endangers the public
health;
(5) Is unfit or incompetent to practice nursing by
reason of deliberate or negligent acts or omissions
regardless of whether actual injury to the patient is
established; [or]
....
(7) Has violated any provision of [the NPA].
N.C.G.S. § 90-171.37 (Supp. 1995).
Id.

The nurse also cited several statutory and regulatory provisions defining the

practice of “nursing”:
Plaintiff specifically references G.S. § 90-171.20(4) which
defines “Nursing” as:
a dynamic discipline which includes the caring,
counseling, teaching, referring and implementing of
prescribed treatment in the prevention and
management of illness . . . .
Plaintiff also points to G.S. § 90-171.20(7) which provides:
The “practice of nursing by a registered nurse”
consists of . . .
55

a. Assessing the patient’s physical and mental health,
including the patient’s reaction to illnesses and
treatment regimens; [and]
....
g. Providing teaching and counseling about the
patient’s health care . . . .
Lastly, plaintiff cites administrative regulations concerning
teaching and counseling about the patient’s health care. In
pertinent portion, these regulations provide:
(h) Teaching and Counseling clients is the
responsibility of the registered nurse, consistent with
G.S. 90-171.20(7) g.
(1) teaching and counseling consist of providing
accurate and consistent information, demonstrations
and guidance to clients, their families or significant
others regarding the client’s health status and health
care for the purpose of:
(A) increasing knowledge;
(B) assisting the client to reach an optimum level of
health functioning and participation in self care; and
(C) promoting the client’s ability to make informed
decisions.
(2) teaching and counseling include, but are not
limited to:
(A) assessing the client’s needs and abilities;
(B) adapting teaching content and methods to the
identified needs and abilities of the client(s);
(C) evaluating
counseling; and

effectiveness

of

teaching

(D) making referrals to appropriate resources.
56

and

N.C. Admin. Code Tit. 21, r. 36.0224(h) (Dec. 1994)
(emphasis added).
Id. at 807-08 (footnote omitted and emphasis in original). Based on these relatively
general provisions, the court in Deerman held that “[t]he NPA and attendant
administrative regulations thus evidence a clear public policy in North Carolina to
protect public safety and health by maintaining minimum standards of nursing care.”
Id. at 807. Because the state “intended by law to require of licensed nurses a measure
of ‘teaching and counseling,’ so as to ‘ensure minimum standards of competency and to
provide the public safe nursing care,’” the court held that the nurse had a valid claim
for wrongful discharge:

“We therefore conclude that the allegations of plaintiff’s

complaint . . . support her contention that the statements [to the patient’s family] which
led to her termination were proffered in fulfillment of her ‘teaching and counseling’
obligations as a licensed nurse.” Id. at 809 (internal citations omitted).
Second, in Kirk v. Mercy Hospital Tri-County, a plaintiff nurse sued a hospital
for wrongful discharge for firing her, in part, because she “had offered to obtain [a
patient’s] medical records for [the patient’s] family” after the patient died from, what
the nurse considered to be, a lack of proper care from the doctor. 851 S.W.2d at 618.
No law expressly prohibited the hospital from firing the nurse under these
circumstances. Id. at 620. But the court held that “[a] finding that no such law or
regulation exist[s] does not preclude Plaintiff from asserting her claim for wrongful
discharge based on the public policy exception to the employment-at-will doctrine.” Id.
Instead, the court implied public policy protections from Missouri’s Nursing Practice
Act (NPA) and its attendant regulations, which prescribe general standards of care and
competency for nurses:
That Act and the regulations reveal a clear mandate of
public policy. The purpose is to train and license a person to
engage in the safe and competent practice of nursing. By
57

definition, a professional registered nurse applies her
specialized skills to (1) the prevention of illness to her
patient, (2) care and counsel of ill persons, (3)
administration of prescribed treatment and medication, and
(4) assisting in the delivery of a health care plan. Such
duties reflect the public policy of this state that registered
nurses licensed in this state have an obligation to faithfully
serve the best interests of their patients.
Id. at 622 (internal citations omitted). Despite the hospital’s arguments that the nurse’s
purported public policy was “vague and ambiguous,” the court noted that the nurse
“could clearly risk discipline and prosecution by the State Board of Nursing if she
ignored improper treatment of a patient under her care.” Id. Thus, the court held that
“the NPA and regulations thereunder sets forth a clear mandate of public policy that
[nurses] not ‘stay out’ of a dying patient’s improper treatment.” Id.
While the plaintiffs in both Deerman and Kirk were nurses, rather than doctors,
both cases held that a medical professional stated a cognizable claim for wrongful
discharge based on allegations that they were fired for giving (or offering to give) to a
patient (or a patient’s family) information that may have revealed that the patients were
victims of malpractice. Importantly, neither case involved a statute explicitly requiring
nurses to divulge to patients information adverse to their employer’s interests. Rather,
the courts in Deerman and Kirk implied public policy protections from general statutes
discussing broad standards of care for medical professionals. If this same public policy
implication exists under Iowa law, it would suggest that Hagen was protected in his
decision to inform the Maedas family that Maria Maedas was the victim of medical
malpractice.
Other courts are less willing to recognize a public policy exception for hospital
employees who alert patients to potential malpractice claims.

For example, in

Strodtbeck v. Lake Hospital System, Inc., No. 2010-L-053, 2011 WL 1944187, at *1
58

(Ohio Ct. App. May 13, 2011), a hospital paramedic was fired after he photographed
what he believed to be a patient’s improper catheterization. The paramedic claimed
that he was fired for “bringing [] mistreatment to the patient’s attention and
documenting the mistreatment,” and therefore his firing violated public policy. Id.
The court disagreed, finding that the paramedic “failed to assert a specific and clear
public policy preventing an employer from discharging an employee for alerting a
patient to potential mistakes a hospital may have made when providing treatment.” Id.
at *5; see also Hays v. Beverly Enters., Inc., 766 F. Supp. 350, 355 (W.D. Pa. 1991),
aff’d, 952 F.2d 1392 (3d Cir. 1991) (holding that public policy did not protect a nurse
from being fired by a nursing home after the nurse told a patient’s family that the
nursing home had had problems with providing timely treatment to patients in the past).
Again, it appears that some courts would extend public policy protections to
medical employees who alert patients and their families to shortcomings in the patient’s
care, while other courts would not. This split in authority weighs in favor of certifying
the issue of whether Iowa law recognizes Protected Conduct 4.
iii.

Protected Conduct 5: A doctor consulting with an
attorney about whether that doctor had a legal duty
to report another doctor’s medical malpractice to a
state board of medicine

Like Protected Conduct 3 and 4, other courts are similarly split on whether
Protected Conduct 5—an employee consulting an attorney about an issue regarding his
or her employer—constitutes protected activity. Some courts recognize strong public
policy protections for employees who consult with attorneys. For example, Ohio courts
have followed Thompto’s lead and have recognized that public policy prohibits
employers from firing employees who consult attorneys. In Chapman v. Adia Services,
Inc., the Ohio Court of Appeals “found persuasive the reasoning . . . in Thompto . . .
.” 688 N.E.2d at 610 (citing Simonelli v. Anderson Concrete Co., 650 N.E.2d 488,
59

491-92 (Ohio Ct. App. 1994) (originally relying on Thompto)). The court in Chapman
“identif[ied] at least three sources of public policy that encourage employees to consult
an attorney about possible claims that would affect the employer’s business interests—
the Ohio Constitution, the Code of Professional Responsibility (“CPR”) as adopted by
the Ohio Supreme Court, and common law.” Id. at 609.
First, Section 16, Article I of the Ohio Constitution
provides: “All courts shall be open, and every person, for
an injury done him in his land, goods, person, or reputation,
shall have remedy by due course of law * * *.” The framers
of the Ohio Constitution inserted that provision, and we
believe that they meant what they wrote. A remedy would
be illusory if citizens could lose their jobs for seeking it.
In addition, the Ohio Constitution gave the Ohio Supreme
Court the authority to adopt the CPR in 1970. The CPR
contains two provisions which help to convince us that
encouraging individuals to consult an attorney is a clear
public policy in Ohio. EC 1-1 states that “every person in
our society should have ready access to the independent
professional services of a lawyer of integrity and
competence.” EC 2-1 states:
“The need of members of the public for legal services
is met only if they recognize their legal problems,
appreciate the importance of seeking legal assistance,
and are able to obtain the services of acceptable legal
counsel. Hence, important functions of the legal
profession are to educate laymen to recognize their
legal problems, to facilitate the process of intelligent
selection of lawyers, and to assist in making legal
services fully available.”
We refuse to engraft upon the CPR the caveat “however, if
a claim is against the potential client’s employer, the
attorney must advise the client that she might lose her
livelihood simply for consulting the attorney.”

60

The third identifiable source of public policy that encourages
employees to consult an attorney about possible claims that
would affect their employer’s business interests is the
common law. The United States Supreme Court has
concluded that, in order for a private citizen to obtain
redress, the claimant must be able to obtain adequate legal
representation. [Riverside v. Rivera, 477 U.S. 561 (1986)].
Although the court’s focus was on an individual obtaining
counsel to file claims under the Civil Rights Act, the
rationale is applicable to all claims. Consulting with an
attorney is the first step toward gaining access to the courts.
Id. The court even recognized that these factors had “exact parallels” to the factors
relied on in Thompto. Id. at 610. Based on these factors, the court in Chapman
recognized that “Ohio public policy encourages individuals to consult an attorney
regarding a possible claim,” and also noted “that the public policy would be
jeopardized if an employee were dismissed for consulting an attorney.” Id. at 609-10
(citation omitted); see also Simonelli, 650 N.E.2d at 492 (“We find persuasive the
Thompto court’s reasoning, and we conclude that the act of firing an employee for
consulting an attorney could serve as the basis for a public policy exception to the
common-law employment-at-will doctrine.”); but see Taylor v. Volunteers of Am., 795
N.E.2d 716, 718 (Ohio Ct. App. 2003) (recognizing that Ohio public policy protects an
employee’s right to consult with an attorney, but not an employee’s right to file suit
against his or her employer).

Ohio is not alone in recognizing the importance of

protecting employees who consult attorneys; other jurisdictions have similarly extended
protection to employees who contact lawyers. See Fulford v. Burndy Corp., 623 F.
Supp. 78, 81 (D.N.H. 1985) (holding that an employee could maintain a claim for
breach of employment contract against his employer who fired him after he hired an
attorney to pursue a tort claim against his supervisor, whose dog bit the employee’s
son); Bennett v. Hardy, 784 P.2d 1258, 1264 (Wash. 1990) (“We conclude therefore
61

that the alleged employer wrongdoing, unlawful discrimination, together with the
reasonableness of the employee’s response, the hiring of legal counsel, are sufficient to
state a tort claim for wrongful discharge under the public policy exception.”).
On the other hand, a number of courts have held that employees have no public
policy right to contact an attorney, either because such a right would require employers
to retain employees who were acting adversely to the employer, or because an
employee’s general right to access the courts was not interpreted to restrict private
employers. See Douglas v. Rucci, No. CV 960153231S, 1998 WL 470588, at *3
(Conn. Super. Ct. July 27, 1998) (“[T]here is no appellate authority recognizing a
judicially cognizable public policy regarding the retention of an attorney.”); Porterfield
v. Mascari II, Inc., 823 A.2d 590, 593, 609 (Md. 2003) (holding it is not “a violation
of public policy sufficient to support a wrongful discharge action in Maryland when an
employer fires an at-will employee for stating her intent to seek advice from legal
counsel before responding to an adverse employment evaluation” because such
termination does “not implicate the public good”); Deiters v. Home Depot U.S.A., Inc.,
842 F. Supp. 1023, 1029 (M.D. Tenn. 1993) (holding that because “[l]itigation
between an employer and employee tends to result in an acrimonious and
noncooperative working relationship,” Tennessee recognizes no public policy right to
sue one’s employer); Kavanagh v. KLM Royal Dutch Airlines, 566 F. Supp. 242, 244
(N.D. Ill. 1983) (“Plaintiff cannot stake his claim on the allegation that KLM by
discharging him violated general public policies in favor of the right to counsel and the
right to free access to the courts.”); Beam v. IPCO Corp., 838 F.2d 242, 247 (7th Cir.
1988) (“[W]e do not believe that any of the provisions identified by Beam reflect a
clear and compelling policy against an employer’s firing an employee for consulting an
attorney about an employment dispute.”); Whitman v. Schlumberger Ltd., 793 F. Supp.
228, 232 (N.D. Cal. 1992) (“Plaintiff has cited numerous constitutional and statutory
62

provisions, but none serve to clearly identify and support a public policy favoring free
access to the courts without fear of reaction by the defendant.”); Groce v. Foster, 880
P.2d 902, 911-12 (Okla. 1994) (collecting cases that have held “that discharge of an atwill employee for bringing or threatening to bring a lawsuit against the employer did
not violate any public policy”); Milazzo v. O’Connell, 925 F. Supp. 1331, 1345 (N.D.
Ill. 1996), aff’d, 108 F.3d 129 (7th Cir. 1997) (dismissing an employee’s wrongful
discharge claim based on the employee consulting an attorney because “there is no basis
in the complaint from which to infer that Milazzo’s consultation with an attorney
involved any public concerns.”).
Again, this split in authority weighs in favor of certifying the issue of whether
Iowa law recognizes Protected Conduct 5.
b.

Question 2: Whether contractual employees can bring
claims for wrongful discharge in violation of public policy

There is also a split in authorities as to whether contractual employees can sue
for wrongful discharge in violation of public policy. A number of jurisdictions allow
both at-will and contractual employees to sue their employers for wrongful discharge in
violation of public policy. Most recently, in Keveney v. Missouri Military Academy,
304 S.W.3d 98, 102 (Mo. 2010), the Missouri Supreme Court held that “[t]here are at
least three compelling reasons for allowing contract employees to pursue an action for
wrongful discharge in violation of public policy.”

“First, limiting the wrongful

discharge cause of action to at-will employees fails to recognize the distinct underlying
purpose of the wrongful discharge cause of action.” Id. An employer’s decision to
wrongfully fire an employee is “wrong” because it violates a state’s “public policy
expressed in applicable constitutional, statutory or regulatory provisions,” not because
it violates any terms in an employment contract. Id. And courts that limit wrongful
discharge claims to at-will employees often rest on the “incorrect assumption that the
63

constitutional, statutory or regulatory interests at issue can be limited through private
contracts,” even though “[a]n employer’s obligation to refrain from [wrongfully]
discharging an employee . . . does not depend on the terms and conditions of the
employment contract.” Id.
Second, the court in Kiveney noted that “[w]hen an employer’s actions violate
not only the employment contract but also clear and substantial public policy, the
‘employer is liable for two breaches, one in contract and one in tort.’” 304 S.W.3d at
103 (quoting Retherford v. AT & T Communications of Mt. States, Inc., 844 P.2d 949,
960 (Utah 1992)).

While “a breach of contract action satisfies private contractual

interests[,] [it] fails to vindicate the violated public interest or to provide a deterrent
against future violations.”

304 S.W.3d at 103.

Thus, in order to vindicate an

employee’s tort-based interests, an employee’s contract should not prevent him or her
from bringing suit in tort. Id. And the Illinois Supreme Court has similarly noted that
an employee’s contract and tort remedies may give rise to different damages:
[T]here is no reason to afford a tort remedy to at-will
employees but to limit union members to contractual
remedies under their collective-bargaining agreements.
Generally, if a union employee’s grievance goes to
arbitration and the arbitrator does not find just cause for the
employee’s discharge, the remedy will be simply job
reinstatement and full back pay. If there is no possibility that
an employer can be liable in punitive damages, not only has
the employee been afforded an incomplete remedy, but there
is no available sanction against a violator of an important
public policy of this State. It would be unreasonable to
immunize from punitive damages an employer who unjustly
discharges a union employee, while allowing the imposition
of punitive damages against an employer who unfairly
terminates a nonunion employee. The public policy against
retaliatory discharges applies with equal force in both
situations.
64

Midgett v. Sackett-Chicago, Inc., 473 N.E.2d 1280, 1283-84 (Ill. 1984) (internal
citations omitted).
Finally, the court in Kivieny held that “[a]llowing an at-will employee to pursue
an action for wrongful discharge ‘illogically grants at will employees greater protection
from these tortious terminations due to an erroneous presumption that the contractual
employee does not need such protection.’” Id. (quoting Smith v. Bates Technical Coll.,
991 P.2d 1135, 1141 (Wash. 2000)); see also Ewing v. Koppers Co., Inc., 537 A.2d
1173, 1175 (Md. 1988) (holding that “it would be illogical to deny [a contractual
employee] access to the courts equal to that afforded [an] at will employee”). While a
contractual employee may have more employment protections than an at-will employee,
they are not necessarily protected from being fired in violation of public policy. For
example, the Washington Supreme Court has noted that contractual employees may
have contractual remedies, but “these remedies do not protect an employee who is fired
not only ‘for cause’ but also in violation of public policy.” Smith, 991 P.2d at 1141.
In addition to the Missouri, Illinois, and Washington supreme courts, a number
of other courts have extended the wrongful discharge tort to contractual employees.
For example, the California Supreme Court has noted that allowing contractual
employees to sue for wrongful discharge serves the tort’s purpose by protecting the
public’s interests, not just the employee’s:
What is vindicated through the [wrongful discharge in
violation of public policy] cause of action is not the terms or
promises arising out of the particular employment
relationship involved, but rather the public interest in not
permitting employers to impose as a condition of
employment a requirement that an employee act in a manner
contrary to fundamental public policy.
Foley v. Interactive Data Corp., 765 P.2d 373, 377 n.7 (Cal. 1988). Similarly, the
Maryland Supreme Court has recognized that the State, rather than just the employee,
65

has an interest in recognizing “the availability of this cause of action to all employees,
at will and contractual,” because such recognition “will foster the State’s interest in
deterring particularly reprehensible conduct.” Ewing, 537 A.2d at 1175. And the
Washington Court of Appeals has held that, because the wrongful discharge tort
partially protects the public’s interest, the tort cannot be limited to at-will employees:
The right to be free from wrongful termination is
independent of any contractual agreement between [an
employee and employer]. Because this is true, we reject the
argument that the tort cause of action for wrongful discharge
in contravention of public policy, established in Thompson v.
St. Regis Paper Co., applies only to at-will employees.
....
The wrongful discharge tort emerged as an exception to the
at-will employment doctrine, and arguably was aimed at
providing added job security, similar to that already held by
for-cause employees. Although the cause of action continues
to be analytically framed as an exception to the at-will
employment doctrine, Washington case law does not
explicitly declare that the tort is available only to at-will
employees. We focus on the public policy aspect of the
wrongful discharge tort in holding that the cause of action
does not depend on the contractual status of the employment
relationship. We agree with the conclusion that “[a] primary
purpose behind giving employees a right to sue for
discharges in violation of public policy is to protect the vital
state interests embodied in such policies.”
....
Providing at-will employees a greater remedy than that
available to for-cause employees for an employer’s violation
of public policy is illogical and based on an unjustified
distinction.
We hold that the tort of wrongful discharge in contravention
of public policy is available to for-cause employees like
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Wilson. Therefore, we must next consider whether Wilson
may bring the common law cause of action notwithstanding
the existence of other remedies available to him.
Wilson v. City of Monroe, 943 P.2d 1134, 1137-38 (Wash. Ct. App. 1997) (footnotes
omitted); id. at 1140 (holding that an employee’s right to bring suit for wrongful
discharge in violation of public policy “is nonnegotiable, and adjudication of a claim
based on the right does not depend on interpretation or application of [an employment
agreement]”); see also Rackley v. Fairview Care Centers, Inc., 23 P.3d 1022, 1027
(Utah 2001) (noting that the public policies vindicated in a wrongful discharge claim are
“beyond the reach of contract, thereby constituting a bar to discharge that parties
cannot modify, even when freely willing and of equal bargaining power” (quoting Ryan
v. Dan’s Food Stores, Inc., 972 P.2d 395, 405 (Utah 1998) (further quotations
omitted))); Smith, 991 P.2d at 1142 (“[W]e now find it unnecessary to distinguish
between at-will and for cause employees as the [wrongful discharge] tort is equally
applicable to all.”); McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603, 607
(Miss. 1993) (holding that public policy exceptions to at-will employment “apply even
where there is ‘privately made law’ governing the employment relationship”).
Still, a number of other jurisdictions limit claims for wrongful discharge in
violation of public policy to at-will employees. Most of these jurisdictions simply rely
on blanket statements that public policy exceptions only apply to at-will employees,
without examining the rationale behind claims for wrongful discharge in violation of
public policy. See, e.g., Oklahoma Dep’t of Pub. Safety v. McCrady, 176 P.3d 1194,
1198 (Okla. 2007) (“[A] classified employee . . . may not bring a tort claim for
wrongful discharge based on the public-policy exception to the employment-at-will
rule.”); Forgue v. Bd. of Educ. of Town of Ledyard, No. CV030566463, 2003 WL
24163362, at *5 (Conn. Super. Ct. Mar. 3, 2003) (holding that the public policy
“exception did not contemplate tenured teachers protected by a collective bargaining
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agreement”); Haynes v. Zoological Soc. of Cincinnati, 652 N.E.2d 948, 951 (Neb.
1995) (holding that an “employee must have been an employee at will” in order to
bring a wrongful discharge claim based on public policy); Darlington v. Gen. Elec.,
504 A.2d 306, 318 (Pa. Super. 1986), overruled on other grounds by Krajsa v.
Keypunch, Inc., 622 A.2d 355, 360 (Pa. Super. 1993) (“Pennsylvania courts recognize
this [wrongful discharge] cause of action only when the employment is at-will.”). But
the rule these jurisdictions follow is likely a byproduct of the fact that “[t]he wrongful
discharge tort emerged as an exception to the at-will employment doctrine,” rather than
any inherent difference between at-will and contractual employees. Wilson, 943 P.2d at
1137; see also Reninger v. Dep’t of Corr., 901 P.2d 325, 331 (Wash. Ct. App. 1995),
aff’d sub nom. Reninger v. State Dep’t of Corr., 951 P.2d 782 (Wash. 1998) (“The tort
of wrongful discharge developed as a narrow exception to the terminable-at-will
doctrine to prevent private employers from contravening clear mandates of public
policy. It is generally, if not exclusively, applied to employment at will situations.”
(internal citations and quotation marks omitted)).
While I find more persuasive the cases holding that both contractual and at-will
employees can sue for wrongful discharge, I recognize that other jurisdictions are split
on the issue. Because other jurisdictions are split, I find that the seventh factor in the
certification analysis weighs in favor of certification.
c.

Question 3: Whether the lack of an “overriding business
justification” is an independent element of a claim for
wrongful discharge in violation of public policy

Finally, the law in other jurisdictions matters less in resolving Question 3
because other jurisdictions apply very different elements to wrongful discharge claims.
Question 3 deals with how Iowa’s wrongful discharge elements should be applied, even
if those elements differ from those used by courts in other states. Thus, whether other
jurisdictions are split on the application of the overriding business justification element
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seems less important given that many other states do not recognize such an element.
Question 3 relates to how Iowa juries should be instructed under Iowa law.
Still, I note that other jurisdictions are split in the sense that they apply varying
elements to wrongful discharge claims. Some jurisdictions recognize the overriding
business justification element. See Swears v. R.M. Roach & Sons, Inc., 696 S.E.2d 1,
6 (W. Va. 2010); Gardner v. Loomis Armoured, Inc., 913 P.2d 377, 382 (Wash.
1996); Collins v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995); see also Cisco v. United
Parcel Servs., Inc., 476 A.2d 1340, 1343 (Pa. Super. 1984) (noting that “an employer
may discharge an employee if he has separate, plausible and legitimate reasons for
doing so”). Other jurisdictions do not recognize the overriding business justification
element. See Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277,
281 (Colo. Ct. App. 2010); Reynolds v. Advance Alarms, Inc., 232 P.3d 907, 909
(Okla. 2009); King v. Marriott Inter. Inc., 866 A.2d 895, 901 (Md. Ct. App. 2005);
Goggins v. Rogers Mem’l Hosp. Inc., 683 N.W.2d 510, 514 (Wisc. Ct. App. 2004);
LoPresti v. Rutland Reg’l Health Servs., Inc., 865 A.2d 1102, 1112-13 (Vt. 2004);
Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, 885 (Nev. 1999); Short v. Sch.
Admin. Unit No. 16, 612 A.2d 364, 370 (N.H. 1992); Clifford v. Cactus Drilling
Corp., 353 N.W.2d 469, 474 (Mich. 1984). Still other jurisdictions apply a burden
shifting framework to wrongful discharge claims. See Li Li v. Canberra Indus., 39
A.3d 789, 793-94 (Conn. Ct. App. 2012); Loggins v. Kaiser Permanente Int’l, 60 Cal.
Rptr. 3d 45, 50-51 (Ct. App. 2007); Dahl v. Combined Ins. Co., 621 N.W.2d 163, 168
(S.D. 2001); Phipps v. Clark Oil & Ref. Corp., 396 N.W.2d 588, 592 (Minn. Ct. App.
1986), aff’d, 408 N.W.2d 569 (Minn. 1987).
Because Question 3 relates to Iowa’s application of its existing law, rather than
the potential adoption of new law, I find that the final certification factor is of less
importance in my decision to certify Question 3 to the Iowa Supreme Court. For
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Question 3, the lack of clarity under Iowa law is alone sufficient to justify certification.
See Part II.B.1.c (noting that Question 3 is unsettled under Iowa law).
III.

CONCLUSION

Having considered the authorizations to do so under both this district’s local
rules and an Iowa authorizing statute, and the various pertinent factors regarding the
propriety of certification, I find that most of the factors weigh in favor of certification.
Given the number of unsettled questions of Iowa law, their importance to a more
thorough understanding of public policy exceptions in Iowa employment law for both
employers and employees, the likelihood that these questions will recur, the special
expertise of the Iowa Supreme Court Justices, the simple truth that seven brilliant minds
with often differing perspectives are far superior to one modest one, and at bottom, the
fact that it is far better for the Iowa Supreme Court to decide what Iowa law is than for
federal judges to engage in educated guessing, I find that certification is far and away
the best path towards a just result in this case and in future cases. Therefore, I find
certification is appropriate in this case, even post-judgment.

I hereby certify the

questions stated earlier to the Iowa Supreme Court. The Clerk shall forward this order
to the Iowa Supreme Court under official seal as required under Iowa Code § 684A.4.
IT IS SO ORDERED.
DATED this 29th day of August, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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