author: MARQUART, District Judge. MARING, Justice, CROTHERS, Justice,

text:
    2007 ND 69
    William CHAMLEY, Plaintiff and Appellant v. Inder V. KHOKHA, M.D., Mercy Medical Center, Defendants and Appellees and Salem S. Shahin, M.D., Defendant.
    No. 20060261.
    Supreme Court of North Dakota.
    May 8, 2007.

      Richard H. McGee II (argued), McGee, Hankla, Backes & Dobrovolny, Minot, N.D., and Lee R. Bissonette (appeared), Bissonette Law Firm, P.A., Wayzata, MN, for plaintiff and appellant.
    Lance D. Schreiner (argued) and Tracy Vigness Kolb (appeared), Zuger Kirmis & Smith, Bismarck, N.D., for defendant and appellee Inder V. Khokha, M.D.
    John C. Kapsner (argued) and Kari R. Reichert (on brief), Vogel Law Firm, Bismarck, N.D., for defendant and appellee Mercy Medical Center.
   MARQUART, District Judge.

[¶ 1] William Chamley appeals from summary judgments dismissing with prejudice his claims against Dr. Inder V. Khokha and Mercy Medical Center for the wrongful death of Rosie Chamley. The issue on appeal is whether the district court erred in granting Dr. Khokha’s and Mercy Medical Center’s motions for summary judgment on the basis of Dr. Khok-ha’s immunity from suit and from liability under the Good Samaritan law. We reverse and remand, concluding the district court erred in granting summary judgment on the issues of Dr. Khokha’s expectation of remuneration. We are of the opinion that Dr. Khokha, as a matter of law, had an expectation of remuneration under N.D.C.C. § 32-03.1-04 and is precluded from claiming immunity under the Good Samaritan Act.

I

[¶ 2] On February 2, 2004, Rosie Chamley was admitted to Mercy Medical Center to undergo a surgical procedure to remove kidney stones. This surgery was performed by her longtime urologist, Dr. Salem S. Shahin. Dr. Shahin is not an employee of Mercy Medical Center but had privileges to perform surgeries on his patients at the hospital. Following the surgery, Rosie Chamley experienced excessive bleeding to the point that her condition became life-threatening. Dr. Shahin returned her to the operating room for renal exploration to determine the cause of the bleeding. During renal exploration, Dr. Shahin concluded that the kidney would need to be removed. Dr. Shahin had difficulty visualizing the blood vessels both to and from the kidney. He requested Dr. Khokha to assist with the kidney removal. Dr. Khokha, a Mercy Medical Center general surgeon with vascular credentials, was in the doctors’ lounge waiting for surgical personnel so he could perform a scheduled surgery on his own patient. At the time, Dr. Khokha was a salaried hospital employee and staff physician at the hospital. When Dr. Khokha was told Dr. Shahin needed his help, he went immediately into the operating room and assisted with Rosie Chamley’s kidney removal. At some point during the kidney removal, Rosie Chamley’s vena cava was damaged and had to be repaired by Dr. Khokha. This repair stopped Rosie Chamley’s internal bleeding, but the following day she was transferred to a Bismarck hospital where she later died.

[¶ 3] In a complaint dated February 9, 2005, Rosie Chamley’s son, William Cham-ley, alleged Dr. Khokha and Mercy Medical Center, Dr. Khokha’s employer, were responsible for Rosie Chamley’s wrongful death under chapter 32-21, N.D.C.C. William Chamley also sued Dr. Shahin, but these parties have settled, and Chamley dismissed the lawsuit against Dr. Shahin. Dr. Khokha and Mercy Medical Center filed motions for summary judgment, which the district court granted, concluding Dr. Khokha was a “Good Samaritan” as defined by chapter 32, N.D.C.C., and therefore immune from suit. William Chamley concedes that if the court finds Dr. Khokha immune under the Good Samaritan statutes, Mercy Medical Center, as the doctor’s employer, is also immune. The district court dismissed William Chamley’s lawsuit with prejudice.

II

[¶ 4] On appeal, William Chamley argues the district court erred in granting summary judgment under the Good Samaritan statutes, because Dr. Khokha was employed to provide hospital patients with vascular surgical skills he was authorized to use. Chamley also argues Dr. Khokha was paid for these services and therefore had an “expectation of remuneration” that exempts him from civil immunity under N.D.C.C. § 32-03.1-04. Chamley claims that as a matter of law, the only conclusion that can be reached is that the hospital and its employee, Dr. Khokha, cannot be considered a “Good Samaritan” or, at the very least, that the issue was one of fact, precluding summary judgment.

[¶ 5] Dr. Khokha and Mercy Medical Center argue they are immune from suit under chapter 32-03.1, N.D.C.C., as a matter of law. They argue Dr. Khokha had no duty to care for Rosie Chamley, a patient not his own, and on whom he operated only because he was asked to help in an emergent, life-threatening situation. Dr. Khokha also argues that his reimbursement for his surgical services does not render him open to suit since doctors are entitled to receive reasonable remuneration under N.D.C.C. § 32-03.1-04 for professional services given in an emergency. Dr. Khokha argues he was not an emergency room physician and therefore was not required to assist Dr. Shahin.

Ill

[¶ 6] The three applicable Good Samaritan statutes are found in chapter 32-03.1, N.D.C.C. First, section 32-03.1-02, N.D.C.C., provides immunity from suit for “Good Samaritans”:

Actions barred. No person, or the person’s employer, subject to the exceptions in sections 32-03.1-03, 32-03.1-04, and 32-03.1-08, who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions
arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.

[¶ 7] Second, physicians or surgeons have the right to collect reasonable fees under N.D.C.C. § 32-03.1-04. This section provides:

Physicians or surgeons. Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment ... in the course of such aid or assistance under this chapter, of the right to reimbursement, from the injured or ill person or that person’s estate for any expenses or damages which appeared reasonable and necessary to incur under the circumstances....

But section 32-03.1-04, N.D.C.C., also provides: “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.”

[¶ 8] Third, section 32-03.1-05, N.D.C.C., provides exceptions:

This chapter does not encompass a person who, at the time of the emergency, was employed expressly or actually for the purpose of providing emergency medical aid to humans, either within or outside of a hospital or other place or vehicle with medical equipment, for emergency medical aid or other assistance rendered in the regular course of their employment. Such persons and their employers are liable for their acts and omissions in rendering emergency medical aid in the regular course of their employment, according to the prevailing law in this state.

[¶ 9] We first consider whether Dr. Khokha’s defense is barred because he had the expectation of payment for providing Rosie Chamley with medical service. William Chamley relies on the statute providing, “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.” N.D.C.C. § 32-03.1-04; see also Danny R. Veilleux, Annotation, Construction and Application of “Good Samaritan” Statutes, 68 A.L.R.4th 294, 301 (1989) (some statutes provide immunity only for persons who give emergency care without expecting payment). Dr. Khokha responds he is not precluded from claiming protection under the Act because “[n]oth-ing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment.” N.D.C.C. § 32-03.1-04.

[¶ 10] We agree with Dr. Khokha that N.D.C.C. § 32-03.1-04 does not prevent a surgeon from recovering a reasonable fee for services rendered in an emergency. However, that leaves at least one question unanswered: namely, whether the doctor or the hospital can have protection under the Act because of an expectation of payment when services were rendered. Id. Here, William Chamley argues Dr. Khokha must have expected remuneration when he entered the operating room because Dr. Khokha billed for his services to Rosie Chamley and because Dr. Khokha is a hospital employee who expects to be paid for medical services rendered in the hospital. William Chamley also argues Dr. Khokha’s employment contract required a minimum of 40 hours per week at the hospital, with 36 hours or more of patient contact. The contract prohibited Dr. Khokha from having any other employment in the medical field. Under terms of the contract, Dr. Khokha was required to provide surgical services to hospital patients, as directed by the hospital. He was compensated by the hospital, on both a salary and an incentive basis. In turn, Dr. Khokha assigned to the hospital all rights to bill and collect fees from patients.

[¶ 11] On the basis of these facts and others in the record, we believe as a matter of law that Dr. Khokha had an expectation of remuneration and that he is not immune from liability under the Act.

[¶ 12] “Statutory interpretation is a question of law, fully reviewable on appeal.” Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 22, 716 N.W.2d 110. The words “expectation of remuneration” as used in § 32-03.1-04, N.D.C.C., are not defined in the statute. In ascertaining legislative intent, the Court looks first to the language of the statute as a whole and construes the statute’s words in their plain, ordinary, and commonly understood sense. State v. Ulmer, 1999 ND 245, ¶ 6, 603 N.W.2d 865. To “expect” is “to anticipate the coming or receipt of.” Webster’s Third New International Dictionary 799 (3d ed.1993).

[¶ 13] Justice Crothers, in his concurring and dissenting opinion, states that the majority has failed to harmonize the words of the entire statute, specifically that part which allows a physician to collect reasonable fees for acts of assistance. Justice Crothers suggests that the majority has failed to recognize the tension between that language and the language regarding expectation of remuneration. This Court must harmonize any apparent conflicting provisions in a statute, if possible. Frey v. City of Jamestown, 548 N.W.2d 784, 788 (N.D.1996). These provisions can be harmonized. There is no ambiguity. They are in different tenses. One is speaking to the actor’s expectation of remuneration at the time of the rendering of aid, and the other is speaking of collecting a fee which appeared reasonable. A physician who encounters an emergency outside the hospital setting could volunteer his or her services, with no expectation at that time to collect a fee. Later, on reflection, the physician could send a bill for services, and still benefit from the immunity-

[¶ 14] The record below establishes that Dr. Khokha was a salaried hospital employee who performed a medical service in his employer hospital. He was being “remunerated” by the hospital when he performed the procedure on Rosie Cham-ley. Because he was being remunerated, as a matter of law, Dr. Khokha anticipated being compensated for his services. Dr. Khokha testified in his deposition that at the time he was “trying to save the patient’s life ... and wasn’t thinking of anything else.... ” This testimony, however, does not create an issue of fact that would preclude summary judgment on this issue.

[¶ 15] In McIntyre v. Ramirez, 109 S.W.3d 741 (Tex.2003), the Court addressed a case in which a physician was seeing one of his patients in a hospital where he did not work, when he was called to give assistance to another physician. The Court there held that the physician, who was not employed by the hospital, had no expectation of remuneration because of his deposition testimony as follows: “I did not charge the patient for my services nor did I render my services in expectation of compensation. This was not a situation for which I would ever charge.” Id. at 749. Dr. McIntyre also testified that he did not bill Ramirez and that it would not be ethical to do so. He further testified that he was not aware of anyone in Travis County who would send a bill when they provided emergency care under the circumstances of that case. Id.

[¶ 16] Here, Dr. Khokha did not testify that he was not planning to charge a fee for his work. This is not at all surprising, given his status as a salaried physician performing a procedure in the hospital that employed him.

[¶ 17] The doctor’s testimony that he was thinking about saving the woman’s life and nothing else does not “set forth specific facts showing that there is a genuine issue for trial.” N.D.R.Civ.P. 56(e). Construing Dr. Khokha’s testimony as saying that he was not anticipating being compensated for his services is mere speculation and is not sufficient to resist a motion for summary judgment. See BTA Oil Producers v. MDU Resources Group, Inc., 2002 ND 55, ¶ 49, 642 N.W.2d 873.

[¶ 18] It is important to note that it is the combination of Dr. Khokha’s being a salaried employee of the hospital and performing the procedure in the hospital that caused him to have an expectation of remuneration when he was rendering the aid. If, for example, Dr. Khokha was not employed by the hospital, but was simply there seeing his patient when he was called to assist, he may be able to claim the immunity if he testified similarly to the doctor in Ramirez. One would also believe that if Dr. Khokha, a salaried employee of the hospital, came upon an emergency outside the hospital setting, he could claim immunity if he testified similarly to the doctor in Ramirez. We do not, however, need to, nor do we, decide these issues today.

[¶ 19] We reverse and remand, concluding that the district court erred in granting summary judgment on the issue of Dr. Khokha’s expectation of remuneration, and further concluding that, as a matter of law, Dr. Khokha had an expectation of remuneration. The Good Samaritan Act provides no immunity to Dr. Khokha or Mercy Medical Center.

[¶ 20] DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur.

[¶ 21] The Honorable STEVEN L. MARQUART, D.J., sitting in place of KAPSNER, J., disqualified.

MARING, Justice,

concurring specially.

[¶ 22] I concur specially. I agree with the majority that because it is undisputed in the record Dr. Khokha was “remunerated” by the hospital when he performed surgery in the hospital on Rosie Chamley, he did so with “an expectation of remuneration” as a matter of law. However, I am of the opinion that our Good Samaritan Act, N.D.C.C. ch. 32-03.1, does not provide immunity to any hospital physician who would “ordinarily receive” payment for assisting a patient in the hospital during a medical emergency.

[¶ 23] I am persuaded by the legislative history of our Act, its wording and the reasoning used by the Supreme Court of New Jersey in Velazquez v. Jiminez, 172 N.J. 240, 798 A.2d 51 (2002), reaching a similar conclusion.

[¶ 24] The issue in this case is whether a physician, Dr. Khokha, and his employer, Mercy Medical Center, are entitled to immunity under North Dakota’s Good Samaritan Act. The issue requires an interpretation of the language of the Good Samaritan Act. Our Court has summarized the rules of statutory construction:

Our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational. Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721.
Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-07 and 1-02-38(2); Meljie v. North Dakota Workers Comp. Bureau, 2002 ND 174, ¶ 15, 653 N.W.2d 62; Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. We presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. N.D.C.C. § 1-02-38(3) and (4); McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. We construe statutes in a practical manner and give consideration to the context of the statutes and the purposes for which they were enacted. N.D.C.C. § 1-02-03; Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611.

Stein v. Workforce Safety and Ins., 2006 ND 34, ¶ 9, 710 N.W.2d 364.

[¶ 25] Section 32-03.1-04, N.D.C.C., provides: “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.” This language is an exception to the grant of immunity. The focus becomes: What is meant by “an expectation of remuneration”?

[¶ 26] Chamley specifically argues that Dr. Khokha had an “expectation of remuneration” under the terms of his employment contract with the hospital because he was doing specifically what he was hired to do, which was treat hospital patients with traumatic injuries, and he had already been paid by the hospital and assigned his right to payment to the hospital. Dr. Khokha argues that he did not have “an expectation of remuneration” just because he was a salaried employee of the hospital or that the hospital subsequently billed for his services. Mercy Medical Center, the employer of Dr. Khokha, argues Dr. Khoh-ka had no expectation of remuneration for his services because the relevant issue is Dr. Khokha’s subjective expectation, and he testified under oath he was not thinking of anything except saving the patient’s life. Perhaps “anticipation” of “pay” or “salary for service,” which are the common definitions of “expectation” and “remuneration” from Merriam-Webster’s Collegiate Dictionary 439 (11th ed.2005) and Black’s Law Dictionary 1296 (6th ed.1990) seem plain enough. However, if the words mean subjectively whatever the individual physician was thinking at the time, the exception is meaningless, because what physician, in order to qualify for immunity, would not testify after the fact that he expected no compensation. The majority cites McIntyre v. Ramirez, 109 S.W.3d 741 (Tex.2003). In that case, the court noted that the Texas Good Samaritan statute defined “two situations in which a person could be deemed to be acting for or in expectation of remuneration: when the person would ordinarily (1) receive or (2) be entitled to receive payment under the circumstances of the case.” Id. at 746. The Texas Supreme Court also held that the phrase “ordinarily received” “speaks toward what is customary.” Id. I agree with this more objective definition of with an “expectation of remuneration.”

[¶ 27] I am also of the opinion that amendments to the North Dakota Good Samaritan Act, especially the enactment in 1989 of a new section, N.D.C.C. § 32-OS.1-02.1, relating to immunity for physicians rendering emergency obstetrical care, create an ambiguity in the North Dakota Good Samaritan Act requiring an examination of the legislative history of the Act. One of the seminal rules of construction of statutes is to give effect to the whole and meaning to every part rather than a construction that would make one part meaningless. Wallentinson v. Williams County, 101 N.W.2d 571, 577 (N.D.1960); Lawrence v. ND Workers Comp., 2000 ND 60, ¶ 19, 608 N.W.2d 254. “The whole is to be examined with a view of arriving at the true intention of each part.” Wallentinson, at 577.

[¶ 28] Under the common law, a bystander generally had no duty to provide affirmative aid to an injured person, even if he had the ability to do so. McDowell v. Gillie, 2001 ND 91, ¶ 6, 626 N.W.2d 666. However, once a bystander voluntarily undertook to render aid the common law recognized a duty to do so reasonably, and the bystander could be liable for injuries caused from the failure to exercise reasonable care. McDowell, at ¶ 6; Velazquez, 798 A.2d at 56.

[¶ 29] The New Jersey Supreme Court’s opinion in Velazquez is an impressive analysis of Good Samaritan legislation throughout the country. 798 A.2d at 51. It concludes:

All fifty states and the District of Columbia have now enacted some form of Good Samaritan legislation.... The country’s Good Samaritan statutes broadly can be classified as falling into one of three categories: those that expressly exclude hospital care; those that expressly include hospital care; and those, like New Jersey’s, that contain no explicit provision one way or the other. Currently, eleven jurisdictions unequivocally exclude from statutory immunity emergency care rendered to patients within a hospital or other health care facility....
Conversely, Good Samaritan statutes in seven jurisdictions immunize emergency care provided in a hospital setting.... New Jersey is among twenty-nine states whose statutes fall within the third major category and contain general language that does not explicitly address whether in-hospital care can be shielded from liability under a Good Samaritan statute.

Velazquez, 798 A.2d at 57-59. See generally, Annot., Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294, 299-300 (1989).

[¶ 30] North Dakota is one of the twenty-nine states with general statutes like New Jersey’s. Our statute immunizes a person who provides “aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or ... trauma,” without mentioning any geographic limitations. N.D.C.C. § 32-03.1-02.

[¶ 31] In McDowell, 2001 ND 91, ¶ 7, 626 N.W.2d 666, we pointed out that “[f]or many years, North Dakota provided immunity to limited segments of the public for care or services given at the time of an emergency.” Those Good Samaritan statutes include:

1. N.D.C.C. § 23-27-04.1 (exempting from liability persons who provide volunteer emergency medical services in connection with an emergency medical services operation).
2. N.D.C.C. § 32-03-40 (exempting from liability firefighters, police officers, and peace officers who in good faith render emergency care).
3. N.D.C.C. § 32-03-42 (exempting from liability licensed health care providers who provide health care services in good faith, voluntarily, without compensation, or the expectation of compensation for amateur athletes or at an amateur athletic event).
4. N.D.C.C. § 39-08-04.1 (exempting from liability any person who is an unpaid volunteer and who in good faith renders emergency care “at or near the scene of an accident, disaster, or other emergency, or en route to a treatment facility” but stating liability is not relieved if the emergency care was for remuneration or with the expectation of remuneration).
5. N.D.C.C. § 43-12.1-12 (exempting from liability a licensed nurse who, in good faith, provides nursing care at the scene of an emergency or disaster).
6. N.D.C.C. §§ 43-17-37 and 43-17-38 (providing that a North Dakota licensed physician or surgeon or a nonresident physician or surgeon, who in good faith renders emergency care at the scene of an emergency is expected to render only such emergency care as in the person’s judgment is at the time indicated).

[¶ 32] In 1987, the North Dakota Legislative Assembly enacted the Good Samaritan Act, N.D.C.C. ch. 32-03.1.1987 N.D. Sess. Laws ch. 403, § 1. The Act specifically supersedes any conflicting provisions of law which were inconsistent with the Act, “except sections 23-27-04.1, 32-03-40, 32-03-42, 39-08-04.1, 43-12.1-12, 43-17-37, and 43-17-38,” which are referenced above. N.D.C.C. § 32-03.1-06.

[¶ 33] House Bill 1631 was introduced by Representative Janet Wentz at the request of the Trestle Valley Ski Patrol of Minot, North Dakota, a non-profit organization devoted to providing gratuitous emergency first aid to injured ski enthusiasts. The Trestle Valley Ski Patrol believed that although there were already a number of Good Samaritan statutes, the broad law was contained in the motor vehicle code and there was no clear exemption for “someone who assists a choking victim in a restaurant, gives CPR to a heart attack victim or a cab driver helping an expectant mother.” See letter dated January 21, 1987, to the Honorable Janet Wentz proposing Good Samaritan statute and submitted in to the Senate Judiciary Committee in support of H.B. 1631. Representative Janet Wentz, the sponsor, testified:

HB 1631 is a so-called “good Samaritan” bill. It simply exempts from liability members of the public who might render assistance to victims of accident and illness. There’s no immunity in the bill for aid rendered in a way which would constitute intentional misconduct or gross negligence. The bill provides criminal immunity for anyone who renders aid; they may not then be charged with practicing medicine without a license. It doesn’t deprive physicians from the right to collect a fee for rendering emergency aid. It does not encompass anyone acting in this fashion who was at the time employed expressly to render aid. It’s only for persons who might be off duty and members of the public.

See Hearing on H.B. 1631 Before the Senate Judiciary Comm., 50th N.D. Legis. Sess. (March 16, 1987) (testimony of Rep. Janet Wentz) (emphasis added).

[¶ 34] A Minot attorney, Don Negaard, representing the National Ski Patrol Association, testified that H.B. 1631 was referring to exemption from liability for ski patrol who render assistance to accident victims. See Hearing on H.B. 1631 Before the House Judiciary Comm., 50th N.D. Legis. Sess. (February 3, 1987) (testimony of Don Negaard). Negaard testified that other laws do not cover a choking victim in a restaurant. Id. Negaard further testified that the “bill specifically states that, if you are doing it for compensation, then you are not covered by this bill, but if you do it gratuitously then you are covered by provision of this bill.” Id.

[¶ 35] Thus, the request to broaden the class of individuals and types of emergencies covered came from a ski patrol group and an assumption that the existing Good Samaritan law at N.D.C.C. § 39-08-04.1 applied only to motor vehicle situations. See Hearing on H.B. 1631 Before the Senate Judiciary Comm.-, (March 16, 1987) (testimony of Senator Maxson and Rep. Janet Wentz).

[¶ 36] Clearly, the legislature was provided with testimony that pointed out emergency situations involving locations other than a motor vehicle accident scene and persons rendering aid, other than physicians, in need of immunity from liability. The legislative history never mentions or even hints at a need or intention to broaden the Good Samaritan laws to include in-hospital emergency care by physicians or other health care professionals. The entire impetus for and focus of the Act were situations presenting emergencies outside of a hospital setting other than a motor vehicle accident where a person would render assistance gratuitously and without remuneration.

[¶ 37] In 1989, the North Dakota legislature enacted a new section to the Good Samaritan Act, ch. 32-03.1 relating to immunity from civil liability for certain physicians rendering emergency obstetrical care. 1989 N.D. Sess. Laws ch. 410, § 1. Under section 32-03.1-02.1, a physician is immunized from liability if he renders emergency obstetrical care or assistance to a pregnant female in active labor, who had not previously been cared for in connection with the pregnancy by the physician. The immunity from civil liability, however, does not extend to a physician who renders emergency assistance with “an expectation of remuneration or who collects a fee for rendering that care or assistance.” Id. This new section was enacted to provide immunity from liability to a rural physician who wanted to drop his obstetric practice and malpractice coverage, therefor, but still wanted to be able to assist in emergency deliveries without the fear of suit. See Hearing on S.B. 2422 Before the House Judiciary Comm., 51st N.D. Legis. Sess. (March 14, 1989) (testimony of sponsor Senator Kelsh). Although the statute does not specifically state it applies to in-hospital or other medical facility, it appears from the legislative history the assumption was that these services would be rendered in medical facilities. See id. (testimony of sponsor Senator Kelsh) (stating “[i]f someone traveling through town had an emergency situation, he could not tend to that person at that facility and deliver the child under safe conditions no matter what”). See also Hearing on S.B. 2122 Before Senate Human Services and Veteran Affairs Comm., 51st N.D. Legis. Sess. (Feb. 10,1989) (testimony of sponsor Senator Kelsh) (stating “when a physician had not ever before seen the patient, had no medical records of the patient, and this person showed up at the clinic ready to deliver, the physician could then deliver the baby, receive no pay, and be covered under the Good Samaritan Act”). All of these circumstances would have been already covered by the existing Good Samaritan Act if the legislature had intended it to cover emergency assistance rendered in-hospital or in other medical facilities. There is a presumption the legislature acts with purpose and does not perform an idle act. Wheeler v. Gardner, 2006 ND 24, ¶ 15, 708 N.W.2d 908; see also N.D.C.C. § 1-02-38 (providing that “[i]n enacting a statute, it is presumed ... [t]he entire statute is intended to be effective”). The legislature concluded it needed to extend immunity specifically to physicians rendering emergency assistance in a hospital or clinic setting to pregnant women in active labor, who the physician had not previously cared for and whose medical records are not reasonably available. Adopting the majority’s construction would render N.D.C.C. § 32-03.1-02.1 an idle act.

[¶ 38] Also of significance is the provision under N.D.C.C. § 32-03-02.1, which provides that the physician who renders emergency obstetric care is not entitled to the immunity if the emergency assistance is rendered with an expectation of remuneration or a fee is collected for rendering that assistance. I have great difficulty in understanding why the legislature would intend that, under § 32-03-02.1, the physician who renders emergency care to a pregnant woman in a hospital or clinic setting is not entitled to immunity if a fee is collected after the fact, but Dr. Khokha, a hospital physician and vascular surgeon, performing emergency surgery in the hospital, along side the patient’s physician with all the information and technology available is entitled to immunity even though a fee is collected after the fact.

[¶ 39] I am convinced by this legislative history that our legislature never intended for our “Good Samaritan Act” to extend immunity to hospital physicians who render emergency medical care in a hospital. I agree with Stewart R. Reuter, who observed in Physicians as Good Samaritans, 20 J. Legal Med. 157, 189 (1999):

[Pjhysicians who care for patients in hospitals are not volunteers in the sense of the person who by chance comes upon the scence [sic] of an accident. Moreover, physicians who provide emergency care in hospitals have at their disposal all the modern diagnostic and therapeutic equipment. Granted, they may not be familiar with the patient’s medical history or disease and are at somewhat of a disadvantage when compared with the patient’s personal physician. However, this disadvantage does not rise to the level of the difficulty that confronts the physician who stops at the site of a roadside accident, who can provide little more than first-aid until the EMS team arrives. In many cases, the physician or surgeon whose expertise is being requested in a hospital emergency will work with a physician or with hospital personnel who have excellent knowledge of the patient’s condition and problems. Even if no other physician is already involved in the emergency, the duration of care provided generally is short— until the hospital’s trained Code Blue team arrives.

I urge the legislature to amend the Good Samaritan Act to define “with an expectation of remuneration” such that the immunity defense is not available to persons who “ordinarily receive remuneration” for rendering care to a patient in a hospital setting.

[¶ 40] I agree with the majority that under the facts, this case must be reversed and remanded for further proceedings under our law governing the conduct of physicians in a hospital setting.

[¶ 41] Mary Muehlen Maring

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 42] I cannot agree that as a matter of law North Dakota’s Good Samaritan Act precludes a physician from claiming immunity from civil liability for actions taken while providing voluntary assistance during an in-hospital medical emergency. I therefore concur in the result because I would have remanded this case for trial on disputed issues of fact arising under our law.

[¶ 43] The majority holds as a matter of law that Dr. Khokha cannot be immune from suit because he was paid for rendering medical care within his employer’s hospital. I disagree with them because they read more into our law than the Legislature said, and because implicit in their holding is that Dr. Khokha had a duty as a matter of law to treat any and all patients who cross the hospital threshold.

[¶ 44] Important facts in this case include that Dr. Khokha had no prior relationship with or connection to Rosie Cham-ley. She was not his patient, and he had never treated, diagnosed, or participated in any care or treatment of Rosie Chamley before he entered the operating room. Dr. Khokha had no employment or business relationship with Rosie Chamley’s surgeon, Dr. Shahin. Dr. Khokha responded to Dr. Shahin’s request for help during surgery on Rosie Chamley, when she experienced a life-threatening situation. But, as Dr. Shahin testified, Dr. Khokha had no obligation to enter the operating room and assist. Indeed, Dr. Khokha answered Dr. Shahin’s urgent call for help after another surgeon employed by Mercy Hospital refused — with impunity — to assist.

[¶ 45] Dr. Khokha was not an emergency room physician whose job was to provide emergency medical care. Nothing in his contract required Dr. Khokha to provide emergency medical services. At the time of Rosie Chamley’s emergency, Dr. Khokha was not “on call” for emergencies and he was not part of a “code blue” or emergency response team. Instead, he was in the physicians’ lounge at the hospital, waiting for surgical staff to become available so he could begin operating on his own patient.

■ [¶ 46] The majority, holds as a matter of law that Dr. Khokha had an expectation of remuneration disqualifying him from immunity under the Act because he was a salaried employee of the hospital where he rendered the care giving rise to this suit. Their conclusion is reached in reliance on that part of N.D.C.C. § 32-03.1-04 providing: “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.” However, their disposition-as-a-matter-of-law fails to harmonize words of the entire statute. They therefore ignore, or perhaps find superfluous, the preceding portion of the same statute providing:

Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment....

N.D.C.C. § 32-03.1-04.

[¶ 47] As an apparent proxy for harmonizing express words of this statute, they instead conclude availability of immunity is determined by going outside the statute and adding a test for the physical location where Dr. Khokha rendered services. See Majority opinion at ¶ 18 (“It is important to note that it is the combination of Dr. Khokha’s being a salaried employee of the hospital and performing the procedure in the hospital that caused him to have an expectation of remuneration when he was rendering the aid.”) (emphasis in original). Doing so, they ignore the rules of statutory construction requiring that we read the Act as a whole and harmonize its provisions, they improperly add words to the statute that the Legislature did not see fit to include, and they overlook the underlying purpose of the Good Samaritan Act.

[¶ 48] We are required to construe and apply statutes by looking first at the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. N.D.C.C. § 1-02-02. When an ambiguity exists, as it does here, we must read related sentences and statutes as a whole to harmonize and give meaning to each word and phrase. See Lawrence v. N.D. Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254 (citations omitted).

[¶ 49] Section 32-03.1-04, N.D.C.C., both allows a physician to charge a fee for services in connection with treatment rendered, and withholds immunity if services are rendered “with an expectation of remuneration.” I read these separate provisions of the same statute, together with the record before us, and conclude summary judgment was inappropriate because there is not but one conclusion to be reached.

[¶ 50] Dr. Khokha had no medical relationship with Dr. Shahin or Rosie Chamley. Dr. Khokha was not an emergency medical provider. He was not on call to attend emergencies encountered by other patients. Nor was he on a “code” or emergency response team. He arguably had no obligation to join Dr. Shahin’s surgery. Dr. Khokha was present in the hospital to perform surgery on his own patient and was being paid by Mercy Hospital regardless whether he volunteered to help save the patient’s life. He therefore had “an expectation of remuneration” even if he ignored Dr. Shahin’s plea for help and stayed in the doctors’ lounge to watch television. Under these circumstances, I cannot agree with my colleagues that Dr. Khokha should be stripped of immunity as a matter of law because he received the same pay for trying to save the life of another physician’s patient as he would have, had he done nothing.

[¶ 51] The majority and Justice Maring avoid analyzing the tension in section 32-03.1-04 by concluding for all time and in all cases that doctors have no immunity when services are rendered in the hospital where the physician is employed and paid for rendering services. Majority opinion at ¶ 19; Maring concurrence at ¶ 22. I disagree with their flawed approach because it adds a term to the statute that the Legislature did not.

[¶ 52] The majority reads section 32-03.1-04 as if it included words limiting immunity to actions outside hospitals. But North Dakota’s Good Samaritan Act provides no such location-specific restriction for coverage under the circumstances of this case, a conclusion conceded by Justice Maring. Maring concurrence at ¶ 30. By comparison, the Legislature has demonstrated it knows how to create location-specific limitations for application of the Act when it wants to do so. See N.D.C.C. § 32-03.1-05 (“This chapter does not encompass a person who, at the time of the emergency, was employed expressly or actually for the purpose of providing emergency medical aid to humans, either within or outside of a hospital or other place or vehicle with medical equipment, for emergency medical aid or other assistance rendered in the regular course of their employment.”) (emphasis added).

[¶ 53] Long-standing precedent of this Court requires that we conclude, “The Legislature must be presumed to have meant what it said, and all that it said, and nothing else.” State v. Myers, 73 N.D. 687, 710, 19 N.W.2d 17, 29 (1945) (citing City of Dickinson v. Thress, 69 N.D. 748, 755, 290 N.W. 653, 657 (1940)). Unlike the majority and Justice Maring, I would take the Legislature at its word. I would not add language to the statute or impose restrictions on application of the Act that are not present in the plain words of the Legislature.

[¶ 54] I also believe adding an exclusion for hospital emergencies is contrary to public policy supporting the Act. “The obvious purpose of the Good Samaritan Act is to encourage those who do not have a preexisting duty to voluntarily act in times of emergency by limiting the threat of civil liability for the actions taken.” McDowell v. Gillie, 2001 ND 91, ¶ 13, 626 N.W.2d 666. This observation of legislative purpose is widely shared by other jurisdictions. See McKenna v. Cedars of Lebanon Hosp., 93 Cal.App.3d 282, 288, 155 Cal. Rptr. 631 (1979) (hospital physician considered “volunteer” even though he was chief resident); see also Burciaga v. St. John’s Hosp., 187 Cal.App.3d 710, 716, 232 Cal. Rptr. 75 (1986) (doctor’s presence in hospital and his status as active staff member not sufficient to establish pre-existing duty); Hirpa v. IHC Hospitals, Inc., 948 P.2d 785, 792 (Utah 1997) (physicians are protected by the Act when they respond to in-hospital emergency if they have no preexisting duty to do so); Henry v. Barfield, 186 Ga.App. 423, 367 S.E.2d 289, 291 (1988) (questions of material fact remained about hospital physician’s preexisting duty when he responded to in-hospital emergency when not “on call”).

[¶ 55] The Utah Supreme Court stated: Courts in other states “have uniformly held that the law is not meant to exempt all medical personnel in every emergency situation, but only those personnel who happen across an emergency outside the normal course of their work and who otherwise have no duty to assist.”

Hirpa, 948 P.2d at 790 (emphasis in original) (citations omitted).

If the doctor had a particular employment duty to aid the patient at the hospital ... then he had a duty to the patient to begin with; and in such a case he does not need a special inducement to offer aid, the aid he offers is not “voluntary” in the sense of a Good Samaritan, and public policy would be ill-served if he were relieved of the usual physician’s duty of care and given immunity in such a case.

Id.

[¶ 56] The New Jersey Supreme Court considered a case with similar issues to those at bar, and a dissenting Justice astutely observed:

I do not advocate the wholesale immunization of physicians and other professionals in hospitals. Rather, I would continue to tether the Good Samaritan statute to its original moorings, meaning I would apply its protections unless the person who administered the emergency aid had a pre-existing duty to act. See Praet v. Borough of Sayreville, 218 N.J.Super. 218, 224, 527 A.2d 486 (App. Div.) (observing that “threshold question in determining the applicability of the Good Samaritan Act is whether the person claiming its immunity had a preexisting duty”), certif. denied, 108 N.J. 681, 532 A.2d 253 (1987).
After remand, we might well conclude that Dr. Ranzini had such a duty and that she, and indeed most of her medical colleagues, would fall outside the purview of the Act. I am unwilling to reach that conclusion as a matter of law. Nor would I restrict the Act to all emergent situations except those found in a hospital unless the statute explicitly contained that restriction, which it does not.

Velazquez v. Jiminez, 172 N.J. 240, 798 A.2d 51, 66-67 (2002) (Verniero, J., dissenting).

[¶ 57] Here, Dr. Khokha had no affiliation with Dr. Shahin, and he had no doctor-patient relationship with Rosie Chamley before voluntarily entering the operating room to help Dr. Shahin. Neither Dr. Khokha nor Dr. Shahin thought Dr. Khokha had a duty to treat Rosie Chamley. Another surgeon employed by Mercy Hospital refused to join the lifesaving efforts. These facts suggest to me that Dr. Khokha was among those whom the Legislature was trying to induce to act without fear of liability. The result reached by the majority removes that inducement and reduces the chance the next patient in Rosie Chamley’s situation will survive the operating room. This can hardly be the result envisioned by the Legislature when adopting the Good Samaritan Act. See Sagan v. United States, 342 F.3d 493, 498 (6th Cir. 2003) (“ ‘The test is not whether the risk was increased over what it would have been if the defendant had not been negligent,’ but rather whether ‘the risk was increased over what it would have been had the defendant not engaged in the undertaking at all.’ ”).

[¶ 58] Finally, I note Justice Maring’s effort to capture the legislative intent behind North Dakota’s Good Samaritan Act as a whole. She gathers statements made during several legislative sessions which relate to a number of the different provisions in N.D.C.C. ch. 32-03.1. That exercise is destined to fail because chapter 32-03.1 is not a cohesive “Act” but a collection of immunity provisions aimed at protecting certain health care providers acting under specific circumstances. See Danny R. Veilleux, Annotation, Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294, § 2[a] (“Issues of statutory applicability based on the particular party claiming coverage, like those based on the location of the treatment, must naturally be resolved with close attention to the particular statute granting the immunity.”).

[¶ 59] When examining North Dakota’s particular statutes, I do not claim to understand the dramatically different legislative philosophy behind N.D.C.C. § 32-OS. 1-04 which grants immunity for emergency care while allowing doctors “the right to collect reasonable fees” and N.D.C.C. § 32-03.1-02.1 which withholds immunity for doctors rendering obstetrical care if they “eollect[] a fee for rendering that care or assistance.” ' Nevertheless, that policy decision is left to the legislative branch and, absent constitutional infirmity, we judges cannot occupy ourselves with the wisdom of the enactment.

[¶ 60] Viewing the evidence in the light most favorable to Chamley, and giving Chamley the benefit of all favorable inferences, I would conclude summary judgment was not appropriate. Whether Dr. Khokha had an expectation of remuneration and whether he had a duty to care for Rosie Chamley under the facts of this case are not questions suitable for summary judgment. I would have reversed this case and remanded for trial. Having been unable to convince a majority of my colleagues to do so, I concur only in the result only to the extent we reverse the district court.

[¶ 61] GERALD W. VANDE WALLE, C.J., concur.

      . The statute reads in its entirety: 32-03.1-04. Physicians or surgeons. Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment; or any other person rendering aid or assistance under this chapter, or those whose property is necessarily damaged in the course of such aid or assistance under this chapter, of the right to reimbursement, from the injured or ill person or that person’s estate for any expenses or damages which appeared reasonable and necessary to incur under the circumstances. Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    Steven J. FABER, Appellee, v. Douglas D. HERMAN, Appellant.
    No. 05-1040.
    Supreme Court of Iowa.
    April 6, 2007.
    Rehearing Denied May 16, 2007.

      Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant.
    Max E. Kirk of Ball, Kirk & Holm, P.C., Waterloo, for appellee.
   CADY, Justice.

In this appeal from a judgment against a lawyer in a legal malpractice action based on claims of negligence while representing a former client in a dissolution proceeding, we conclude the claims of malpractice did not cause the damages sought as a matter of law. We vacate the decision of the court of appeals and reverse the judgment of the district court.

I. Background Pacts and Proceedings.

Douglas Herman is an Iowa lawyer. He represented Steven Faber in an action to dissolve his marriage to Karen Faber. Karen was represented by attorney Karl Moorman.

The Fabers were married for nineteen years at the time the dissolution action was commenced. The divorce presented many challenging issues, not the least of which was the equitable division of their marital property. The parties and their attorneys worked to resolve these issues, which ultimately resulted in a stipulated decree for dissolution of marriage.

One item of property divided under the stipulation and decree was Steven’s retirement account with the Iowa Public Employer’s Retirement System (IPERS). Steven began working for the State of Iowa two years after the marriage. He worked at the Anamosa state penitentiary as a corrections officer, and continued to be employed in that capacity until after the divorce.

Based on information provided by IP-ERS during the pendency of the divorce, Steven learned the “investment value” of his retirement account was $38,179.38, and the “death benefit” was $63,785.94. The “death benefit” represented the amount to be distributed to Karen, as the designated beneficiary, in the event of Steven’s death. The “investment value” represented the amount Steven would receive in a lump sum payment if he retired from his employment with the State of Iowa on the day the value was determined. Steven was vested in the pension plan, and therefore the “investment value” represented all of his personal contributions during the course of his employment plus a portion from his employer.

Steven and Karen agreed to divide the IPERS account equally. To accomplish this division, they considered the “investment value” to be the value of the account, and they sought to divide the account by means of a qualified domestic relations order (QDRO) that required IPERS to immediately pay Karen one-half of the investment value, or $19,100. Specifically, the stipulation required Steven to “immediately pay $19,100.00 to [Karen] from his I.P.E.R.S. retirement account pursuant to a separate Qualified Domestic Relations Order issued by the Court.”

Steven and Karen also prepared an itemization of the division of all their property by listing each item of property received by each party in separate columns, with a corresponding value assigned to each item. This itemization was attached to the written stipulation signed by the parties. Steven’s column included “IP-ERS (one-half)” with a value of “$19100.” Likewise, Karen’s column included “IP-ERS (one-half)” with a value of “$19100.” The stipulation was signed by Steven and Karen in May 1999, and the decree was entered by the court.

Moorman then drafted a proposed QDRO to divide the IPERS account pursuant to the stipulation. This proposed order essentially directed IPERS to create a separate interest for Karen in the amount of $19,100, payable to her as a participant under the plan. Moorman then sent the order to the administrator of IPERS for approval. IPERS rejected the proposed QDRO because it allowed Karen to acquire independent rights in the account. IPERS informed Moorman that Karen could not receive any benefits until Steven began to receive benefits or died. IPERS also informed Moorman that Karen had no right to independently select a distribution option and begin receiving benefits, or to have a separate account set aside in her name.

Moorman then drafted a new QDRO that abandoned the lump-sum division approach agreed to by the parties under their stipulation. The new QDRO provided for the benefits to be distributed to Steven and Karen upon Steven’s retirement under a formula based on the length of the marriage and the length of employment. The QDRO provided:

IPERS is directed to pay benefits to [Karen] as a marital property settlement under the following formula: Fifty percent (50%) of the gross monthly or lump sum benefit payable at the date of distribution to [Steven] multiplied by the “service factor.” The numerator of the service factor is 70 and the denominator is [Steven’s] total quarters of service covered by IPERS.

Under the QDRO the benefits were to inure to Karen as an alternate payee for Steven’s life, and were not to begin until “[Steven] begins to receive benefits from IPERS or when the death benefits become payable ... whichever occurs first.” IP-ERS approved this QDRO, and it was signed by Herman, Moorman, and the court in July of 1999.

Herman did not directly participate in drafting the QDRO, but he did approve it. Herman acknowledged his approval in a letter to Steven in September of 1999. The letter informed Steven the QDRO had been finalized, and it divided his IPERS account “consistent with the stipulation.” Herman did not tell Steven that IPERS rejected the lump-sum payment approach agreed to under the stipulation, and he did not explain the percentage method of distribution ultimately used to divide the pension. Consequently, Steven understood at the conclusion of his divorce that his IP-ERS account had been divided pursuant to the stipulation.

In 2000, the Iowa legislature amended the law governing IPERS to permit in-service disability benefits. 2000 Iowa Acts ch. 1077, § 51 (codified at Iowa Code § 97B.50A (2001)). Steven subsequently applied to IPERS for disability retirement as a result of exposure to mace and second-hand smoke while working at the prison. IPERS approved his application in January 2001, and eventually informed him that due to the QDRO on file he would receive monthly benefits of $1,209.77, and Karen, as the alternate payee, would receive $962.31 each month.

Steven was surprised to learn Karen would receive a portion of the monthly benefits, and he wrote a letter to Herman expressing his displeasure with the distributions from IPERS. As a result, Herman tried several times to modify the QDRO to provide Steven with a more favorable result. Ultimately, Herman’s efforts were unsuccessful and the distributions under the QDRO remained the same.

Steven then brought a legal malpractice action against Herman. He claimed Herman was negligent in preparing and drafting the stipulation and QDRO, and in advising him in the division of the pension. He sought damages based on the amount of benefits Karen would receive in excess of the amount she was entitled to recover under the stipulation.

The case proceeded to trial. The jury-found Herman seventy percent negligent and Faber thirty percent negligent. It also found past damages of $20,984.47, and future damages of $88,349.93.

Both parties subsequently filed motions for judgment notwithstanding the verdict. Steven argued the record did not support the jury’s finding that he was thirty percent negligent. Herman argued the verdict against him was contrary to law and not supported by the evidence. In addition, Herman alleged the measure of damages submitted to the jury was improper, certain evidence should not have been deemed inadmissible hearsay, and the court erred in submitting several jury instructions. The district court denied both parties’ motions, and both parties appealed.

Herman raised four claims of error on appeal. First, he alleged the district court erred in failing to direct a verdict because there was insufficient evidence that any negligence on his part actually or proximately caused Steven any damage. Second, Herman claimed there was insufficient evidence to support the four specifications of negligence submitted to the jury. Third, Herman claimed the damage instruction submitted to the jury was based on an improper measure of damages. Finally, Herman claimed the damages awarded were speculative, excessive, and not reasonably foreseeable. On cross-appeal, Steven claimed the district court erred in instructing the jury to consider his fault.

We transferred the case to the court of appeals. The court of appeals rejected each claim raised by Herman, and reversed the jury’s assessment of fault against Steven. We granted further review sought by Herman.

II. Issues.

“On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review.” Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). In his original appeal, Herman argued the district court should have granted his motions for directed verdict and judgment notwithstanding the verdict because Steven failed to prove causation. Specifically, Herman alleged there was insufficient evidence to show Karen would have agreed to any result other than what the QDRO provided. On further review, Herman argues Steven cannot show causation because of our holding in In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). Specifically, Herman claims Karen would not have been able to receive a lump sum payment of $19,100 under our holding in Sullins because this figure was not derived from actuarial methods. Causation is the issue we choose to address on further review.

III. Standard of Review.

We are required to determine the propriety of our court of appeals’ decision regarding Herman’s motion for judgment notwithstanding the verdict. Rulings on motions for judgment notwithstanding the verdict are reviewed for the correction of errors at law. Iowa R.App. P. 6.4; Estate of Long ex ret. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 79 (Iowa 2002) (“We review the district court’s decisions on the motion [for judgment notwithstanding the verdict] for errors at law.”).

IV. Causation

Herman argues the grounds of negligence alleged by Steven could not have caused the damages sought because Steven and Karen intended to divide the pension equally at the time of the divorce, which is exactly what the parties ultimately received. Thus, Herman claims any claim of negligence supported by the evidence was not a cause of the damages sought by Steven.

Causation is an essential element in a cause of action based on negligence. See Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998) (noting causation must be proved in a legal malpractice action “the same as any other negligence action”). It is composed of two components. The first is a “but-for” or “cause in fact” component. Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 774 (Iowa 2006). The second is a “legal cause” or “proximate cause” component. Id. A defendant’s conduct is not a cause in fact “ ‘[i]f the plaintiff would have suffered the same harm had the defendant not acted negligently.’ ” Berte v. Bode, 692 N.W.2d 368, 372 (Iowa 2005) (citation omitted). The defendant’s conduct is not a legal cause “ ‘if the harm that resulted from the defendant’s negligence is so clearly outside the risks he assumed that it would be unjust or at least impractical to impose liability.’ ” Id. (citation omitted). The question of causation is normally for the jury to decide, but there are circumstances when the issue can be decided as a matter of law. See Ruden v. Jenk, 543 N.W.2d 605, 611-12 (Iowa 1996) (holding, as a matter of law, defendant failed to show proximate cause).

Causation in a negligence action must be analyzed in the context of the relationship between those theories of negligence supported by the evidence and the theory of damages sought by the plaintiff. Actual causation, as well as legal causation, must exist between the breach of the duty of care and the damages sought. The theory of damages alleged by Steven was based on the amount of benefits Karen would ultimately receive under the QDRO in excess of the $19,100 Karen was to receive under the stipulation. Steven claims this amount represents his compensatory damages because the excess benefits received by Karen should have been received by him.

The jury was instructed on four claims of negligence. They included:

1. Drafting a stipulation (to provide for an immediate payment to Karen of $19,100) contrary to the terms of the IPERS plan.
2. Failing to prepare a QDRO to provide Karen with a specific dollar amount.
3. Failing to advise Steven that he could have divided the pension with non-pension assets worth $19,100.
4. Failing to advise Steven that the QDRO approved by IPERS and entered by the court divided the pension by a different method than agreed under the stipulation.

In analyzing each claim of negligence, we begin with the fundamental principle that pensions can be divided in one of two basic ways. See In re Branstetter, 508 N.W.2d 638, 642 (Iowa 1993) (“There are generally two ways for a court to divide pension benefits.”). Parties can agree the non-member will receive a share based on the present worth of the pension, or receive a share of the pension benefits at some point in the future when they become payable to the pensioner. Id. Thus, the difference between the two methods involves the payment of an immediate amount or the payment of an amount in the future. We have previously identified this difference by using the terms “present value method” and “percentage method.” Sullins, 715 N.W.2d at 248.

The division of a defined-benefit pension plan, such as IPERS, under the present value method requires the use of actuarial science. Id. (citing In re Benson, 545 N.W.2d 252, 255 (Iowa 1996)). For this reason, we have said “it is normally desirable to divide a defined-benefit plan by using the percentage method.” Id.; see Benson, 545 N.W.2d at 255 (recognizing the disadvantages of an “immediate distribution”). Additionally, it is usually too difficult “for a pensioner to pay a lump sum amount representing the present value of a defined pension plan.” Sullins, 715 N.W.2d at 248-49. It is difficult because the lump sum amount is normally paid through an award of non-pension benefits. Id. In this case, Steven’s IPERS account was ultimately divided using the “normally desirable” percentage method. Id. at 248.

The future division of IPERS benefits does not usually require actuarial science, but it does require a QDRO. A QDRO is necessary because a future division divides the member’s benefits. Without a QDRO, the member’s benefits would be distributed to the member according to the terms of the pension plan. The QDRO directs the distribution of future benefits to the former spouse as an alternate payee.

Generally, a QDRO can divide an IPERS account between a member and a nonmember spouse in a divorce in three basic ways: A “straight percentage method,” a “service factor percentage method,” and a “dollar amount method.” See Instructions for Using Iowa Public Employees’ Retirement System (IPERS) Model QDRO, available at http://www.ipers.org/ docs/qdro/ipersqdromodel.doc (last visited March 27, 2007) [hereinafter Model QDRO ]; see also Iowa Code § 97B.39 (requiring, inter alia, that “[t]he system shall comply with the provisions of a marital property order requiring the selection of a particular benefit option, designated beneficiary, or contingent annuitant if the selection is otherwise authorized by this chapter”); Iowa Admin. Code r. 495-16.2 (2004) (allowing fixed dollar amount or percentage methods under a QDRO). A straight percentage method divides the member’s lump sum or gross monthly benefit according to a percentage determined by the parties. See Model QDRO. A service factor percentage method divides the pension according to a percentage multiplied by a factor based on the member’s service during the marriage and the member’s total service. See id. Finally, a dollar amount method divides the member’s lump sum or gross monthly benefits based on a specific dollar amount awarded to the alternate payee. See id. Thus, an IPERS account can be divided in a divorce by one of these three basic methods, or by means of non-pension assets based on the present value of the pension at the time of the divorce.

Our analysis in this case turns on the realization that a one-half division under each method of division produces the same basic result. In other words, if the parties agree to divide a pension equally, an equal division will occur regardless of the method of division selected so long as the methods are properly applied. Of course, an equal division under some of the methods would involve an extremely complex analysis and would be difficult to achieve. See Benson, 545 N.W.2d at 255. This difficulty underscores our previous observation that the service factor percentage approach is the preferred method, even though no method of division can be precise in carrying out the parties’ agreement. It is in this light that we consider whether the claims of negligence caused the damages Steven alleges.

The first claim of negligence is that Herman drafted a stipulation (providing for an immediate payment of $19,100 from the IPERS account by means of a QDRO) that could not be carried out pursuant to a QDRO because it was contrary to the IPERS regulations. While Herman was clearly negligent in drafting a stipulation to provide for a division of the pension by a means not permitted by law, it is equally clear that this negligence was not a factual cause of the damages claimed by Steven. The damages claimed by Steven are based on the amount of payments Karen has received and will continue to receive under the service factor percentage method of division in excess of $19,100. Yet, Steven would have suffered this same damage if Herman had drafted a stipulation based on an approved method of division.

The important point is the stipulation clearly expressed the intention of the parties to divide the pension equally. A defined-benefit pension plan such as IPERS can only be divided in one of several methods. If the parties agree to split the pension equally, any method of division will produce the same basic result if properly done. Importantly, there is no claim of negligence raised by Steven that the method ultimately used in this case was misapplied. Thus, the damages claimed by Steven would have occurred in any “one-half’ division under our approved methods of division. Steven would have suffered the same harm he now claims if Herman had drafted the stipulation to equally divide the pension under any approved method of division. The causation element was not satisfied as a matter of law.

The next ground of negligence concerns Herman’s failure to draft a QDRO that would limit Karen’s share to a specific dollar amount. More specifically, Steven claims Herman could have drafted a QDRO to limit the amount of future benefits available to Karen under the IP-ERS plan. Yet, Steven would again suffer the same damage he now claims (the amount of benefits Karen has received and will receive in excess of $19,100) if Herman had drafted a QDRO with a specific dollar limitation. While a QDRO can limit the benefits to an alternate payee, any limitation on the future benefits available to Karen in this case would need to represent one-half of the value of the pension. This amount would be the practical equivalent of the amount Karen is receiving now. Steven overlooks that the pension was to be split in “one-half’ shares, and that under any allowable method of division, “one-half’ would equal more than the $19,100 he claims. See Sullins, 715 N.W.2d at 249 (“[T]he present value of her IPERS plan is more than the present value of her contri-buttons.”). Although the parties believed the value of the pension was $38,200, that figure only represented the value of the pension as a liquid asset. The pension could only be divided into equal shares of $19,100 as a liquid asset. However, as a benefit payable in the future, its present value was not equivalent to its investment value. See Benson, 545 N.W.2d at 256 (recognizing the difference between investment value (amount a pensioner would be entitled to receive if retired immediately and began drawing) and amount pensioner will receive when benefits are drawn after retirement). Thus, if Herman had properly prepared a QDRO to cap Karen’s future benefits as Steven claimed he should have done, then Herman would have been required to determine a cap based upon an equal division of the pension as a future benefit. Such a limitation would far exceed $19,100. See Sulims, 715 N.W.2d at 250 (noting “the district court’s valuation and distribution ... fell far short of our accepted methods”). Consequently, this claim of negligence does not satisfy the causation element because Steven would have suffered the same harm he now claims if Herman had drafted a QDRO to limit Karen’s future distribution. Such a method of division would have achieved a “one-half’ division amounting to more than $19,100, and which would be, for all intents and purposes, the same as the division the parties have received.

The next ground of negligence concerns the claim that Herman failed to tell Steven that he could have divided the pension with non-pension benefits instead of dividing the pension under a QDRO. Armed with this advice, Steven claims he could have preserved the pension for himself by giving Karen $19,100 in non-pension assets.

This ground of negligence also fails to support causation because Steven would have suffered the same harm he now claims if the pension had been divided using non-pension assets. Steven’s claim of negligence overlooks that if Herman would have drafted a stipulation to divide the pension with non-pension assets, the value of the pension under this method of division would far exceed $38,200. See id.; Benson, 545 N.W.2d at 256. When a pension is divided by means of non-pension assets, the non-pensioner spouse gives up a future interest in the pension and must consequently receive non-pension assets equal to the present value of that future interest.

The final ground of negligence was that Herman failed to inform Steven of the change in the method of dividing the pension from an immediate lump sum payment to the percentage method of division. As with the other grounds of negligence, however, Steven would have suffered the same harm he now claims if Herman had told him of the change in the method of division. This result occurs because any method of division ultimately used to divide a pension equally will, when properly used, achieve an equal division. Of course an equal division was the outcome sought by Steven and the outcome he ultimately obtained.

The common theme with all four claims of negligence is that the parties desired an equal division of the pension, and the only time such a result will not be achieved is when the method employed is erroneously utilized. This was not the case here. Karen received a “one-half’ share in the “normally desirable” way, and Steven has essentially suffered the same harm he would have suffered had Herman not been negligent. Sullins, 715 N.W.2d at 248. In other words, whatever method Steven would have preferred to use to divide his IPERS pension, a “one-half’ division under any method would have yielded the same result. While the division could have been accomplished by different methods, each with its own advantages and disadvantages, a division by “one-half’ under any method is the practical equivalent for the purposes of determining causation under Steven’s theory of compensatory damages. Thus, in the end the negligence of Herman in failing to advise Steven about the methods to equally divide a pension and to draft a stipulation and QDRO to fully protect his one-half interest was not a cause of the damage claimed because the method of division ultimately used by Herman gave Steven his equal division of the pension. This division was not what Steven expected, but his expectation or misunderstanding of the method of distribution was not a cause of the damages claimed. The negligence of Herman in failing to advise Steven of the change may have caused some damages, such as incidental and consequential damages, but not the compensatory damages (difference between the amount of benefits under the stipulation and the amount of benefits under the QDRO that was entered) sought by Steven.

The district court erred by failing to grant Herman’s motion for judgment notwithstanding the verdict. As a matter of law, there was no causation between the theories of negligence alleged by Steven and his theory of damage. Consequently, it is unnecessary to address the additional issues raised in the appeal and cross-appeal. We vacate the decision of the court of appeals and reverse the judgment entered by the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.

All justices concur except HECHT, J., who takes no part.

      . Notably, this last method of future division incorporates concepts unique to what we have termed a "present value division” and a "percentage division.” See Sullins, 715 N.W.2d at 248. The dollar amount method of division under a QDRO is similar to the present value method because both methods attempt to state the alternate payee's share in current dollars. This, of course, requires the use of actuarial science. Id. The difference between the two methods is that under a present division, the alternate payee receives a definite amount of non-IPERS marital assets immediately, and under a QDRO’s dollar amount division, the alternate payee receives a definite amount of IPERS benefits sometime in the future. Thus, an equitable division under a QDRO's dollar amount method is even more complicated than a present division of the pension with non-IPERS assets because it requires an actuary to consider the date of distribution as an additional variable. For these reasons, we again emphasize “it is normally desirable to divide a defined-benefit plan by using the percentage method.” Id. at 248-49.


author: STREIT, Justice.

text:
    Clifford AYERS, Appellant, v. D & N FENCE COMPANY, INC. and EMC Insurance Companies, Appellees, United Fire and Casualty Company, Intervenor-Appellee.
    No. 05-1400.
    Supreme Court of Iowa.
    April 13, 2007.
    Rehearing Denied May 16, 2007.

      David A. O’Brien of Willey, O’Brien, L.C., Cedar Rapids, for appellant.
    Michael L. Mock of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee D & N Fence Company.
    Anne L. Clark of Hopkins & Huebner, P.C., Des Moines, for appellee EMC Insurance Companies.
    Chris Scheldrup and Charles A. Blades of Scheldrup Law Firm, P.C., Cedar Rapids, for appellee United Fire & Casualty Company.
   STREIT, Justice.

Be careful what you wish for because it just might come true. Clifford Ayers injured his right knee in 1987 while working for D & N Fence Company. He was paid for an eighteen percent permanent disability to that lower extremity. In 2002, while still in the employ of D & N, Ayers injured his knee again. He filed a petition for workers’ compensation alleging the 2002 injury caused additional disability to his right leg and resulted in a knee replacement surgery. D & N denied the allegations claiming Ayers’s current disability was the result of his 1987 injury and had little or nothing to do with the 2002 injury. The commissioner agreed with D & N and awarded Ayers medical benefits. D & N cried foul claiming the commissioner should not have imposed liability upon D & N for additional medical expenses based on the 1987 injury when Ayers’s petition alleged those expenses were necessitated by the 2002 injury.

We conclude the commissioner did not abuse his discretion when he imposed liability for the 1987 injury. D & N was well aware of the earlier injury and even made it the focus of the hearing. Moreover, we find D & N’s insurer in 1987 did not have a constitutional right to notice regarding the possible imposition of liability based upon the 1987 injury. Any obligation to notify the insurer was that of D & N. Accordingly, we affirm the district court.

I. Facts and Prior Proceedings

Ayers was fifty-six years old at the time of the hearing. He had been working for his brother’s company, D & N, for twenty-six years. He began his career as a fence installer and was promoted to foreman, yard foreman, and finally manager of commercial sales, a position he has held since 1989.

Ayers’s claim in this case involves an injury to his right knee. Ayers first injured his knee in 1987. He was carrying some materials through a doorway at work when he fell. This injury ultimately required arthroscopic surgery resulting in the removal of a significant amount of cartilage. Ayers was found to have sustained an eighteen percent impairment to his right leg, and accordingly was paid permanent partial disability benefits. In 2002, Ayers injured his right knee at a D <& N job site when he stepped in a hole. He twisted his knee and felt significant pain. Ayers immediately left the job site and reported the injury to D & N. A few days later, Ayers saw his family doctor who referred him to Dr. Fabiano, an orthopedic surgeon.

Dr. Fabiano concluded Ayers suffered from a medial collateral ligament (MCL) strain. X-rays showed degenerative arthritis. Dr. Fabiano opined the MCL strain may have “aggravate^] and startle[d]” Ayers’s degenerative arthritis. He performed knee replacement surgery after more conservative treatments did not alleviate Ayers’s pain. The surgery was a success and Ayers returned to work after seven weeks of recovery.

In April 2003, Ayers filed a workers’ compensation claim for his March 2002 injury. Ayers sought reimbursement for his medical expenses ($51,174.62), seven weeks of healing period benefits at $599.97 per week, and 110 weeks of permanent partial disability benefits at the same rate. D & N and its insurer, EMC, disputed whether Ayers’s 2002 injury caused any new permanent disability and the knee replacement surgery.

A deputy workers’ compensation commissioner conducted a hearing concerning Ayers’s claim. Ayers pursued two theories of recovery. First, he argued the March 2002 injury aggravated or accelerated a preexisting condition (degenerative arthritis) and caused both the knee replacement surgery and additional disability to his right leg. Alternatively, Ayers argued the knee replacement surgery and the additional disability were proximately caused by the cumulative effect of the 1988 surgery and fifteen years of walking over uneven terrain while working for D & N.

At the beginning of the hearing, the attorney for D & N and EMC stated:

I believe there will be testimony ... in this case that Mr. Ayers’ problems with his right knee were ongoing from 1987 to 1988, and that essentially what we’re looking at here is not a new injury, but it’s simply a continuation of the ’87, ’88 injury. And it’s our position, Your Hon- or, that all of this is really an ongoing part of the ’87, ’88 injury. And if you look at — It’s really more analogous to [Excel Corp. v. ]Smithart [654 N.W.2d 891 (Iowa 2002) ], where everything should be looked at as part of the first injury as opposed to any ongoing injury that we have.

The deputy commissioner ruled in favor of D & N finding Ayers “clearly had serious degenerative joint disease prior to March 25, 2002” and that he “failed to prove that the proximate cause of his need for the knee arthroplasty surgery was the work injury.”

Ayers appealed the deputy’s decision to the commissioner arguing inter alia:

Even if the court concludes that Ayers’ knee replacement surgery was not caused by trauma or cumulative trauma, the medical expenses related to the knee replacement surgery should still be paid ... [because] the 1987 work related injury was a cause of Ayers’ degenerative arthritis condition.

In his appeal decision, the commissioner succinctly ruled:

Claimant alleged and the parties stipulated that the claimant sustained a traumatic injury on March 25, 2002, when he stepped in a hole. In 1988 claimant had surgery and cartilage was removed from his right knee as a result of a 1987 work-related injury with this same employer for which weekly compensation was paid. All the physicians in this case attribute the knee replacement surgery to the 1988 surgery for the 1987 injury. None clearly attribute the surgery to the 2002 injury. Claimant proved convincingly that the surgery was causally related to the 1987 injury but failed to carry the burden of proving that the 2002 injury was a substantial factor in the need for the surgery. Accordingly, claimant is entitled to recover the requested [medical] benefits under section 85.26(2) for the 1987 injury ... but he is not entitled to recover weekly compensation for the 2002 injury.

The motion to reconsider filed by D & N and EMC alerted the commissioner to the fact United Fire & Casualty Company insured D & N at the time of the 1987 injury. D & N and EMC noted Ayers’s petition did not allege entitlement to medical benefits arising from the 1987 injury, and urged any liability for such medical benefits should be relitigated by the proper parties. Ayers also requested a rehearing arguing the commissioner failed to address the issue of cumulative trauma.

In his decision on rehearing, the commissioner modified the decision by relieving EMC from liability and affirmed the remainder of his decision.

Ayers filed a petition for judicial review in Linn County. D & N filed a cross-petition for judicial review and United Fire filed a petition to intervene. After United Fire was allowed to intervene, it filed a motion to present additional evidence concerning insurance coverage and causation of Ayers’s current disability and knee replacement surgery. The district court denied United Fire’s motion and dismissed all issues pertaining to insurance coverage without prejudice.

Thereafter, the district court upheld the commissioner’s ruling. It found the commissioner’s findings of facts were supported by substantial evidence. The court rejected D & N’s argument that the commissioner erred in ordering payment of medical benefits resulting from the 1987 injury when Ayers’s petition alleged a 2002 injury date. The court also rejected United Fire’s claim it had a right to notice and an opportunity to defend against the imposition of liability based upon the 1987 injury. The court agreed with the commissioner that any obligation to notify United Fire was D & N’s obligation pursuant to Iowa Code section 87.10 (2001). The court stated Ayers

is entitled to compensation and any dispute between his employer and the employer’s insurance companies should not be a basis for delaying his rights. There was no “surprise development” which prejudiced D & N Fence ....

Ayers filed a notice of appeal. D & N and United Fire filed a notice of cross appeal. Ayers contends the commissioner erred in finding the 2002 injury did not cause permanent disability and the knee replacement surgery. He argues the commissioner erred by applying the wrong standards to determine whether the 2002 injury aggravated a preexisting condition or was a cumulative injury. He also claims the commissioner erred by admitting into evidence a second report by D & N’s expert because it was created and produced after the case preparation completion date established in the agency’s hearing assignment order. D & N and United Fire both argue the commissioner erred by awarding Ayers medical benefits for the 1987 injury because the issue was not properly presented to the commissioner for consideration.

II. Scope of Review

“ ‘We review the district court decision by applying the standards of the [Iowa] Administrative Procedure Act to the agency action to determine if our conclusions are the same reached by the district court.’ ” Univ. of Iowa Hosp. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004) (quoting Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 612 (Iowa 2002)). The Iowa Administrative Procedure Act provides fourteen grounds upon which a reviewing court may reverse the decision of the workers’ compensation commissioner. Iowa Code § 17A.19(10). The relevant grounds for this appeal are (1) the agency action is unconstitutional, (2) the agency action is not supported by substantial evidence, and (3) the agency action is an abuse of discretion. Id. § 17A.19(10)(a), if), and (n). “The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity.” Id. § 17A.19(8)(a).

III. Merits

A. Whether Substantial Evidence Supports the Commissioner’s Finding that Ayers’s Knee Replacement Surgery was not Causally Related to the 2002 Injury

The commissioner found Ayers failed to prove the 2002 injury was a proximate cause of his disability and the knee replacement surgery. The commissioner also found Ayers’s current disability was not the result of cumulative trauma because “[t]he record does not show that claimant could have avoided the knee replacement surgery if he had not worked for the employer after 1988.”

Substantial evidence supports the commissioner’s findings. See Waters, 674 N.W.2d at 95 (noting we may reverse the commissioner’s findings only if they are not supported by substantial evidence in the record); Iowa Code § 17A.19(10)(f)(l) (stating a decision of the commissioner is supported by substantial evidence if the evidence is of the “quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance”). Three physicians rendered opinions on the cause of Ayers’s disability and knee replacement surgery: Dr. Fabiano, Dr. Riggins, and Dr. Stenberg. Causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 383, 101 N.W.2d 167, 171 (1960). Dr. Fabiano was Ayers’s treating physician and has a specialty in orthopedics. In the days following Ayers’s 2002 injury, Dr. Fabiano diagnosed Ayers as having preexisting degenerative joint disease with an MCL strain. Dr. Fabiano noted x-rays showed significant degeneration with “near bone on bone” changes in the knee. On September 9, 2002, Dr. Fa-biano performed Ayers’s knee replacement surgery and his postoperative diagnosis was end-stage degenerative joint disease. Dr. Fabiano concluded the cause of the knee replacement surgery was Ayers’s degenerative arthritis, not the 2002 injury. Dr. Riggins reviewed Ayers’s medical records and agreed with Dr. Fabiano’s conclusions.

Dr. Stenberg conducted an independent medical evaluation. His report opined “[t]he most likely cause of Mr. Ayers’ degenerative arthritis condition would be his morbid obesity.” Although Dr. Stenberg did later provide the only testimony supporting the claim that Ayers’s disability and knee replacement surgery were causally related to the 2002 injury, he did so only after Ayers’s counsel inquired whether that injury exacerbated Ayers’s preexisting degenerative arthritis.

The commissioner found Ayers had serious degenerative joint disease that had been symptomatic prior to March 25, 2002. Although Ayers sustained an injury on March 25, 2002, the commissioner found he failed to prove the injury materially aggravated his preexisting condition. Likewise, the commissioner rejected Ayers’s cumulative injury argument. He found “[t]he record does not show that [Ayers] could have avoided the knee replacement if he had not worked for the employer after 1988. The cumulative trauma exposure was incidental in this case and did not materially change the outcome.”

There is substantial evidence in the record to support the commissioner’s factual findings. Moreover, the commissioner applied the correct legal standards in making these determinations. Ayers finds fault with the commissioner’s statement that Ayers failed to prove “the 2002 injury significantly changed the course of the preexisting injury to bring about the need for knee replacement surgery.” Ayers claims the commissioner applied “a higher, hyper-technical, and incorrect standard” in determining whether the 2002 injury materially aggravated his preexisting condition. Ayers is grasping at straws. A claimant has the burden of proving his work-related injury was a proximate cause of his disability. Meyer v. IBP, Inc., 710 N.W.2d 213, 220 n. 2 (Iowa 2006) (quoting Freeman v. Luppes Transp. Co., 227 N.W.2d 143, 148 (Iowa 1975)). In order for a cause to be proximate, it must be a “substantial factor.” Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991). The commissioner applied the correct standard and we have no quarrel with his analysis.

Likewise, we find the commissioner applied the correct standard in determining whether Ayers suffered a cumulative injury. The commissioner found Ayers failed to prove he “could have avoided the knee replacement if he had not worked for the employer after [his first knee surgery].” In order to be compensable, the cumulative trauma must be work related. Ayers offered no medical evidence supporting his contention that his disability was caused by work-related repetitive trauma.

B. Whether Substantial Evidence Supports the Commissioner’s Finding that Ayers’s Knee Replacement Surgery was the Result of the 1987 Injury

Substantial evidence supports the commissioner’s finding that Ayers “proved convincingly” his disability and knee replacement surgery were causally related to his 1987 work-related injury. Dr. Riggins opined Ayers’s degenerative arthritis was the expected result of the 1988 arthroscopic surgery, which was required after Ayers’s 1987 injury. Dr. Stenberg agreed Ayers’s earlier surgery “played a factor” in his degenerative arthritis. Dr. Bickel, who performed the arthroscopic surgery after the 1987 injury, predicted Ayers would continue to have problems with his right knee and eventually require knee replacement surgery.

Having found substantial evidence to support the commissioner’s ruling, we turn now to the consequences of his findings.

C. Whether the Commissioner Abused his Discretion in Considering the 1987 Injury as a Cause When Ayers Pled 2002 as the Date of Injury

D & N argues the commissioner erred in awarding Ayers benefits for his 1987 injury because the issue was not properly presented to the commissioner for consideration. Whether Ayers’s application for workers’ compensation benefits sufficiently informed his employer of the possibility of an award for the 1987 injury is a matter within the agency’s discretion. Waters, 674 N.W.2d at 96. Thus, the proper standard of review is an abuse of discretion. Id.

Ayers’s application for benefits alleged an injury date of “[o]n or about March 25, 2002.” D & N argues Ayers should have been required to file a new application for benefits alleging 1987 as the date of the injury. In Waters, we reiterated “[a]n application for arbitration is not a formal pleading and is not to be judged by the technical rules of pleading.” Id. at 96-97 (quoting Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969)). Instead, “[t]he key to pleading in an administrative process is nothing more than opportunity to prepare and defend. The employer is to be afforded a substantive right to be at least generally informed as to the basic material facts upon which the employee relies as a basis for compensation.” Id. at 97 (quoting James R. Lawyer and Judith Ann Graves Higgs, Iowa Workers’ Compensation — Law & Practice § 21-7, at 231 (3d ed.1999)).

The commissioner did not abuse his discretion in considering the 1987 injury as the cause of Ayers’s disability and knee replacement surgery because D & N was well aware of Ayers’s long-standing history of knee problems. In fact, D & N made the 1987 injury and subsequent surgery in 1988 an integral part of the hearing. Its attorney stated “what we’re looking at here is not a new injury, but it’s simply a continuation of the ’87, ’88 injury. And it’s our position Your Honor, that all of this is really an ongoing part of the ’87, ’88 injury.” D & N generated expert opinion testimony from Dr. Riggins to support this claim. Dr. Riggins was asked by defense counsel to review the Ayers file and opined “the osteoarthritis present in [Ayers’s] right knee was the expected result of the earlier [1988] surgical procedure.” Defense counsel was so persuasive the commissioner adopted her argument. What D & N wished for came true. This is not a “surprise development” that prejudiced the employer. Eberhart Constr. v. Curtin, 674 N.W.2d 123, 125 (Iowa 2004). The commissioner correctly pointed out “[n]othing would be gained by requiring another proceeding explicitly based on the 1987 injury.” While D & N may have been surprised by the consequences of its argument, this is not Ayers’s problem. Even if we were to order a new hearing, D & N would be barred from arguing the 1987 injury did not cause Ayers’s disability and knee replacement surgery because it already proved this very matter. See generally Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573-75 (Iowa 2006) (discussing doctrine of judicial estoppel).

In 1988, Ayers was paid for an eighteen percent permanent partial disability to his lower right leg. Since he proved the knee replacement surgery performed in 2002 was necessary to treat the 1987 injury, Ayers is entitled to be reimbursed for the reasonable cost of that treatment. Iowa Code § 85.26(2). He is not entitled to any additional temporary or permanent disability payments because more than three years have passed since he received his last disability payments for the 1987 injury. Id. § 85.26(1).

D. Whether United Fire’s Due Process Rights were Violated

Finally, United Fire argues the commissioner violated its constitutional right to due process when it considered the 1987 injury. We review constitutional claims de novo. Consumer Advocate v. Commerce Comm’n, 465 N.W.2d 280, 281 (Iowa 1991).

United Fire did not participate in the hearing. It claims it had a right to notice and an opportunity to defend against Ayers’s claim for additional workers’ compensation benefits for the 1987 injury. See Carr v. Iowa Employment Sec. Comm’n, 256 N.W.2d 211, 214 (Iowa 1977) (stating the essential elements of due process are notice and an opportunity to defend). However, the insurer does not have a statutory or constitutional right to notice from the employee. The employee is only required to notify the employer of his claim. Iowa Code §§ 85.23, .24. The commissioner correctly stated any obligation to notify United Fire was that of D & N’s. See id. § 87.10. The district court aptly held:

Whether United Fire & Casualty Company must pay the medical expenses is not an issue which should be a concern for [Ayers]. He is entitled to compensation and any dispute between his employer and the employer’s insurance companies should not be a basis for delaying his rights.

We agree. The commissioner did not violate United Fire’s due process rights.

IY. Conclusion

Substantial evidence supports the commissioner’s findings that Ayers’s disability and knee replacement surgery were caused by the 1987 injury and not the 2002 injury. Consequently, Ayers is entitled to reimbursement for his medical expenses. The commissioner did not abuse his discretion in considering the 1987 injury when Ayers pled 2002 as the date of injury because D <& N raised the 1987 injury as the cause of Ayers’s disability and knee replacement surgery. Finally, the commissioner did not violate United Fire’s due process rights because any obligation to notify United Fire was that of D & N.

AFFIRMED.

      . On appeal, Ayers argues the commissioner erred by admitting into evidence a second report by Dr. Riggins which was produced after the deadline for discovery. Ayers complained the late-produced report was prejudicial because it "for the first time offers expert testimony with regard to the issue of apportionment” of disability between the 1987 injury and the 2002 injury. According to the report, Ayers’s current 50% impairment of his lower right extremity should be reduced by 18%, which was the amount of his impairment prior to March 25, 2002. In other words, D & N used this report to argue any award of disability payments should be based on 32% impairment rather than 50%. Because we affirm the commissioner’s determination Ayers is not entitled to additional compensation for disability, this issue is moot.