author: KONENKAMP, Justice.

text:
    2003 SD 151
    Rodney FOSTER, Plaintiff and Appellant, v. Thomas FOSTER, Defendant and Appellee.
    No. 22784.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Dec. 23, 2003.

      Ellie M. Vandenberg, Volga, South Dakota, Attorney for plaintiff and appellant.
    Robert M. Ronayne of Ronayne and Wein, Aberdeen, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] We are confronted with the question whether a debtor who failed to disclose his legal claim in bankruptcy may be estopped from later asserting that claim in circuit court. The debtor believed his brother breached an agreement to sell him certain real property. When the debtor filed for bankruptcy, he did not report this agreement in his bankruptcy filings. After the filing but before final discharge, the debtor obtained a handwritten note from his brother that the debtor claims either ratified the earlier agreement or created a new agreement. When the bankruptcy ended, the debtor sued his brother to enforce the agreement. On cross-motions for summary judgment, the circuit court granted the brother’s motion, ruling that the debtor was estopped from bringing the claim when he failed to disclose it in the bankruptcy. Although the circuit court correctly held that the original agreement should have been disclosed in the bankruptcy case and could not later be enforced in circuit court, the handwritten note was not subject to the bankruptcy proceedings to the extent that it may have constituted a new agreement. We affirm in part, reverse in part, and remand.

Background

[¶ 2.] On August 6, 1993, Ramsey Marlowe Foster died. His sons, Rodney and Thomas Foster, were appointed co-executors of their father’s estate. The brothers began negotiating the division of the real property they were to receive under the will. Several estate debts complicated the distribution. Included in those debts was a'claim by the decedent’s former spouse, Thomas and Rodney’s mother, for approximately $56,000. In addition, the deceased owed the FmHA $50,000, and the estate owed federal taxes of $4,450.

[¶ 3.] The brothers wanted the property to remain in the family. However, Rodney was unable to obtain the necessary financing to arrange a distribution that included the payment of estate debts. Therefore, the brothers planned a series of transactions. Initially, Thomas would obtain a loan of $77,750 to purchase the property, and he would receive title to the land. The assets would then be used as collateral. The next transaction called for Rodney and Thomas to each pay $5,500 into the estate. The additional $11,000 together with the $77,750 sale proceeds would cover $88,750 of expenses owed by the estate. For his contribution, Rodney was to receive an option to acquire title equal to fifty percent of the estate real property. Jody Foster, Thomas’s wife, was not involved in the negotiations.

[¶ 4.] Rodney and Thomas each paid the additional $5,500 into the estate. Upon court approval of the property sale to Thomas, Thomas deposited $77,750 into the estate. As co-executors, Thomas and Rodney transferred title of the property to Thomas and his wife, Jody, on December 14, 1995. That same day, Rodney signed the second agreement entitling him to exercise an option on the property; however, Thomas refused to sign this agreement.

[¶ 5.] Rodney’s financial situation worsened, and in February 1996, he filed for Chapter 12 bankruptcy protection. He did not disclose to the bankruptcy court any options or claims on the property. On August 15, 1996, the bankruptcy court converted Rodney’s Chapter 12 filing to a Chapter 7 filing. With this conversion, Rodney was forced to liquidate all nonexempt assets.

[¶ 6.] On September 2, 1997, Thomas signed a handwritten note stating, “Rod Foster will get ½ of all RM’s Estate Land with him paying ½ of all debt owed to Northwest Bank at Viborg, ½ Debt to Joyce Foster, ½ Debt to Attorneys, ½ of all taxes.” According to Thomas, he signed this document only because Rodney was illegally and wrongfully withholding from him monies that he was entitled to from the ASCS office. Thomas further stated that “after he received the check that Rodney was wrongfully withholding, [he] repudiated the document and explained that he signed it only because he needed to obtain the money illegally and wrongfully withheld.”

[¶ 7.] In a later affidavit, Thomas further explained the note:

The notebook memo was written after my brother’s bankruptcy case was converted into Chapter 7. In mid to late 1997, [approximately one year after the conversion,] the Chapter 7 bankruptcy trustee was seeking a purchaser of all of my brother’s non-exempt assets. The plan at that time was that my mother would purchase the non-exempt assets, including any interest my brother would have in the remaining land owned in the Ramsey Marlowe Foster Estate. That sale was not consummated.
The notebook memo explains that if my mother was the successful bidder (on behalf of Rodney) Rodney would be entitled to a one-half interest in the remaining estate land, but he would have to pay his share of the expenses incurred in completing the estate and deeding out the land.
My mother initially bid $30,000.00 to purchase these assets, as my brother’s lender. She later backed out of the purchase as I understand it, because my brother, Rodney, told her that was too much to pay for the purchase of the nonexempt assets.
The trustee would not consider sale of those assets for less than $30,000.00. Subsequently, the trustee offered the non-exempt assets to Jody and me at the same price, for $30,000.00. That sale was eventually completed with the trustee.
The notebook document, then, explains that if my brother purchased his nonexempt assets from his bankruptcy estate through my mother, in that event, Rodney would then have an opportunity to purchase one-half of all of the remaining Ramsey Marlowe Foster estate assets, provided he paid half of the expenses. Again, it was after this that my mother backed out [of] this transaction, apparently at his direction.
The notebook page did not have anything to do with the alleged agreement which is subject to this litigation.

[¶ 8.] On October 29, 1998, Chief Bankruptcy Judge Irvin N. Hoyt signed an order confirming the “sale and assignment of all property of [Rodney’s bankruptcy] estate to Thomas and Jody Foster” for the sum of $30,000.

[¶ 9.] In bringing suit against Thomas in circuit court, Rodney alleged that Thomas had breached their agreement by refusing to honor the original unsigned agreement. Both Rodney and Thomas moved for summary judgment. After a hearing, the circuit court concluded that because Rodney’s creditors had been deprived of the opportunity to maximize their recovery due to his failure to disclose any claims to the property, he was estopped from pursuing such claims.

[¶ 10.] On appeal, Rodney raises two issues: (1) “Whether the trial court erred in granting [Thomas’s] motion for summary judgment.” (2) “Whether [Rodney] was required to claim two interests in real property, one of which was a right to title to real property and one of which was a right to an option to purchase a one-half interest in real property, in his Chapter Twelve bankruptcy schedules, such that now he is precluded from exerting those claims by the doctrines of equitable and/or judicial estoppel.”

Analysis and Decision

[¶ 11.] Rodney argues that significant factual issues have not been resolved, thus precluding summary judgment. He believes that when all reasonable inferences are drawn from the facts in a light most favorable to him as the nonprevailing party, summary judgment should not have been granted. “Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied.” Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 8, 602 N.W.2d 58, 61 (quoting Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635). Summary judgment is not for disposing of factual questions. Harn v. Continental Lumber Co., 506 N.W.2d 91, 94 (S.D.1993) (citations omitted). Only when fact issues are undisputed will they become questions of law for the court. Id. We will affirm the trial court’s decision if we find any legal basis to support it. De Smet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶ 5, 552 N.W.2d 98, 99 (citations omitted);' SDCL 15-6-56(c). “That both sides move for summary judgment does not mean that there are no genuine issues, obliging a court to grant judgment for one side or the other.” St. Paul Fire and Marine Insurance Co. v. Engelmann, 2002 SD 8, ¶ 15, 639 N.W.2d 192, 199 (citation omitted). Both motions must be denied if the court detects genuine issues of fact or genuine issues on the inferences discernible from the facts. Id. (citations omitted). Statutory and contract interpretation are questions of law reviewed de novo. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994).

[¶ 12.] Initially we note that any claim that Rodney might have had stemming from the unsigned agreement has been relinquished. Such a claim would properly have been within the bankruptcy estate. 11 USC 541(a)(1) provides, “Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case” comprise estate property. (Emphasis added.) Rodney’s failure as a debtor to list this claim will not evade this mandate. Therefore, any such claim was properly included within the bankruptcy estate even though Rodney failed in his duty to list the claim as an asset.

[¶ 13.] Further, there can be no question that any claim was assigned to Thomas and Jody upon their purchase of all Rodney’s non-exempt assets from the bankruptcy trustee. The order issued by the bankruptcy court clearly decrees that “all property of the estate ” was subject to the order. Such language necessarily covers any de minimis interests not specifically described in the order. In any event, only the trustee could properly raise a question on whether certain estate property was included within the assignment to Thomas. Here, any rights or claims which may have arisen from the unsigned agreement fell within the definition of estate property. As to the bankruptcy estate property, Rodney has no claim.

[¶ 14.] Rodney contends that he had no duty to disclose claims that accrued 180 days after his petition. He relies on the statutes pertaining to Chapter 12 bankruptcies. 11 USC 1207(a)(1) provides:

Property of the estate includes, in addition to the property specified in section 541 of this title
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7 of this title, whichever occurs first.

Originally, Rodney filed for bankruptcy under Chapter 12. On August 15, 1996, the bankruptcy court converted Rodney’s Chapter 12 filing to a Chapter 7 filing. The language of the provision sets that date as the date after which property acquired by the debtor rightfully belongs within the debtor’s property. Therefore, any subsequent rights conferred on Rodney by the handwritten note of September 2, 1997 do not fall within the property of the bankruptcy estate.

[¶ 15.] While we agree that Rodney may have obtained some rights from the handwritten note, we caution that those claims may not rely on interests that should have been or could have been brought forth under the unsigned agreement. That is, Rodney may not assert that his payment of the $5,500 under the previous agreement can be said to be consideration for the new and separate handwritten agreement. Furthermore, any partial performance by Thomas under the unsigned agreement may not be used by Rodney in conjunction with the handwritten agreement. Those claims were sold to Thomas with his purchase of Rodney’s non-exempt assets.

[¶ 16.] Instead, Rodney may show that Thomas partially performed under the handwritten agreement or that Rodney’s release of the ASCS funds amounted to consideration for the note. It would not be permissible for Rodney to rest his assertion on an allegation that the handwritten note was a ratification of the prior agreement. Nor would it be permissible for Rodney to claim that he relied on Thomas’s prior words and actions where those actions or words occurred before the conversion of Rodney’s bankruptcy filing. A view of the totality of Thomas’s actions must be limited in its scope to those actions that Thomas took in conjunction with the handwritten note. In sum, claims arising from Thomas’s actions before the conversion date belong to Thomas, not Rodney.

[¶ 17.] Finally, we observe that the handwritten note was not signed by Jody Foster. For that reason, any claims that Rodney may have against Thomas might not be sufficient to establish Rodney’s right to a one-half share in the property. Instead, Rodney’s claims may be limited to only that portion of the property that Thomas rightfully holds.

[¶ 18.] We conclude that on those claims arising under the unsigned agreement, Rodney is equitably and judicially estopped from asserting such claims. See Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417, 419 (3rdCir.1988) (citations omitted). First, any interest Rodney had in the unsigned agreement with his brother should have been disclosed and adjudicated in bankruptcy court. Second, all rights that Rodney may have had under that agreement were sold to Thomas and Jody. Included in those rights were all causes of action and all rights to sue. On the other hand, with respect to the handwritten note significant questions of fact and law remain unresolved. Therefore, it is left to the trial court to determine whether the handwritten note established a contract and, if so, what rights that contract may have conferred upon Rodney.

[¶ 19.] Affirmed in part, reversed in part, and remanded.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Because the value of the property was so encumbered by debt, the bankruptcy trustee concluded that any claims Rodney may have held in the property were de minimis.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Phyllis WOLBERS, Executor of the Estate of Samuel Wolbers, Deceased, and Phyllis Wolbers, Individually, Appellee, v. THE FINLEY HOSPITAL, an Iowa Nonprofit Corporation, Appellant.
    No. 02-1041.
    Supreme Court of Iowa.
    Dec. 17, 2003.
    Rehearing Denied Jan. 21, 2004.

      David L. Hammer, Angela C. Simon, and Scott J. Nelson of Hammer, Simon & Jensen, Dubuque, for appellant.
    Mark E. Liabo of Tom Riley Law Firm, P.C., Cedar Rapids, and Leslie M. Blair III of Blair & Fitzsimmons, Dubuque, for appellee.
   CARTER, Justice.

The Finley Hospital (the hospital) appeals from a judgment on a jury verdict in favor of Phyllis Wolbers, the personal representative of Samuel Wolbers, deceased. At least ten assignments of error are presented for our review. We separately consider each one and, except for a modification of the interest on the judgment, find no basis for reversing the judgment of the district court.

Plaintiffs decedent, Samuel Wolbers, sought medical attention from Dr. Joseph Jenkins of Dubuque Surgery, P.C. on May 5, 1997. After assessing Mr. Wolbers’ medical condition, Dr. Jenkins scheduled him for a surgical procedure called a carotid endarterectomy on May 16, 1997. Wol-bers was admitted into the hospital operated by defendant hospital on May 15, 1997, in preparation for the surgical procedure.

Wolbers, who was a heavy smoker, was instructed to discontinue all smoking prior to the surgery. In defiance of those instructions, he continued smoking up until the time he entered the hospital. On May 16, Dr. Jenkins performed the carotid en-darterectomy as planned. While Wolbers was recovering from the procedure, he had a small stroke. Dr. Jenkins performed a second surgical procedure on him in response to the stroke. He was then moved to intensive care for recovery.

After being transferred to a regular nursing unit on May 18, he began experiencing difficulties breathing. He notified nursing and respiratory therapy staff of the problem. His complaints were documented in his hospital chart and called to the attention of Dr. Webb, an emergency-room physician employed by the hospital. The code blue chart' noted that he was bluish in color, indicating a lack of oxygen in'his blood. Dr. Webb attempted to open Wolbers’ air passages by intubation, but was unsuccessful because of the extent of the blockage. The emergency-room staff also utilized an Ambu bag to increase oxygen intake. Dr. Webb did not seek surgical intervention to alleviate the problem. The hospital staff failed to notify Dr. Jenkins of Wolbers’ respiratory difficulties until the early morning hours of May 19. After various attempts to remedy his breathing complications, Wolbers died on May 19,1997.

Plaintiff, individually and as executor of the estate of her deceased husband, filed an action for wrongful death against the hospital. She later filed a motion to amend the petition to add a claim for lost chance of survival on May 23, 2000. On May 17, 2002, the jury returned a verdict in favor of plaintiff for damages totaling $364,000. Additional facts will be discussed below as relevant.

I. Whether the District Court Erred in Failing to Instruct the Jury on the Issue of Comparative Fault.

The hospital asserts that, because there was substantial evidence presented to support a finding of causal fault attributable to plaintiffs decedent, the issue of comparative fault was erroneously withheld from the jury. We review issues concerning the failure to submit a comparative-fault defense for correction of errors at law. DeMoss v. Hamilton, 644 N.W.2d 302, 305 (Iowa 2002).

Parties are entitled to have their legal theories submitted to the jury when the instructions expressing those theories correctly state the law, have application to the case, and are not otherwise covered in other instructions. Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002). Proposed instructions must be supported by. the pleadings and substantial evidence in the record. Id. Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Id.

We addressed the applicability of comparative negligence in wrongful-death cases in DeMoss, 644 N.W.2d at 305-07. We concluded that in order for comparative negligence to be applicable in a medical malpractice action:

[A] patient’s negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpracti-tioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based. Accordingly, in a medical malpractice action, the defense of contributory negligence is inapplicable when a patient’s conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care or treatment on which a subsequent medical malpractice claim is based.

Id. at 306.

In Fritts v. McKinne, 934 P.2d 371 (Okla.Ct.App.1996), a case relied on in De-Moss, the patient had been seriously injured in a single-car accident, and all of his major facial bones had been broken. Fritts, 934 P.2d at 372. Five days after the accident, an oral surgeon was scheduled to perform facial repairs, and the defendant doctor was to assist by performing a tracheostomy. Id. The doctor cut or ruptured the innominate artery during the tracheostomy. Id. The patient lost a large amount of blood, failed to regain consciousness, and died three days later. Id. at 373.

The doctor in Fritts argued that the patient’s innominate artery was found up in his neck area, when normally it should have been in his chest, complicating the procedure. Id. The doctor further argued that the patient was injured while driving drunk or while riding in a vehicle driven by another intoxicated person. Id. The appellate court held that a comparative-fault instruction was not warranted. Id. at 374. The court stated:

Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.

Id. (citing Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991)).

We also discussed several other cases in DeMoss in which a patient’s “negligence” was not relevant to later medical malpractice claims. These include: Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App.1975) (patient’s failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative-fault instruction); Van Vacter v. Hierholzer, 865 S.W.2d 355, 360 (Mo.Ct.App.1993) (reversal warranted when comparative-fault instruction invited jury to apportion fault based on conduct not proximately causing death); Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178, 186-87 (1990) (patient’s failure to heed doctor’s advice to lose weight may have caused pulmonary embolism but is irrelevant to the claim that doctor later negligently treated the condition); and Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631, 635 (1999) (insufficient proof of patient’s failure to notify doctor of breast lump to warrant comparative-fault' instruction).

In the present case, the hospital contends that Wolbers’ history of tobacco use, even up to the date of his admission into the hospital, was a producing cause of his death because it contributed to the blockage of his air passages. While it seems clear that smoking can produce increased secretions, such as the ones that caused a blockage to the airways of plaintiffs decedent, it seems equally clear that the present claim was based on the hospital staffs alleged failure to adequately treat the condition that existed, whatever its cause. Under the court’s instructions, the jury was required to so find in order to allow recovery. Thus, this case is analogous to cases cited in DeMoss in which the patient’s negligence created a condition that a physician negligently failed to treat at a later time. The district court correctly declined to give a jury instruction on comparative negligence.

II. Whether the District Court Properly Submitted the Issue of Vicarious Liability to the Jury.

The hospital asserts it could not be liable under the theory of vicarious liability, as it is prohibited by law from practicing medicine. It further asserts that, while a corporation is responsible for the acts of its employees, it cannot be liable, nor did it have the right, to direct or control the manner in which its employee doctor practiced medicine.

Dr. Webb was an employee of Finley Hospital at the time he treated Mr. Wol-bers. Under the terms of his employment agreement, he agreed to follow the guidelines for performance of the duties of an emergency physician at the hospital and to comply with the medical staff bylaws and rules of procedure. Dr. Webb further acknowledged that the hospital had established procedures and guidelines with respect to emergency medicine and that he would perform in conformance with those guidelines. The hospital further retained the right to terminate Dr. Webb’s employment if he failed to follow the hospital’s guidelines for performance.

Ordinarily, a claim of vicarious liability under the doctrine of respondeat superior in an employment situation rests on two elements: proof of an employer/employee relationship and proof that the injury occurred within the scope of that employment. Biddle v. Sartori Mem’l Hosp., 518 N.W.2d 795, 797 (Iowa 1994). Nevertheless, the hospital argues that it cannot be vicariously liable for Dr. Webb’s medical judgments because it had no right to control them. It relies on Iowa Code section 147.2 (1999) in support of its argument. That section states in relevant part:

A person shall not engage in the practice of medicine and surgery [or] nursing ... unless the person has obtained from the department a license for that purpose.

Iowa Code § 147.2.

The matter of control as to the details of the work is an important element of a master-servant relationship, see Restatement (Second) of Agency § 220(2)(a) (1958) [hereinafter Restatement]. However, the relationship of master and servant is not the only agency status that supports vicarious liability. See Wiedmeyer v. Equitable Life Assurance Soc’y, 644 N.W.2d 31, 34 (Iowa 2002) (owner of shopping center who entrusted details of management to management company held vicariously liable for omissions of management company). Other principal and agent situations exist in which the principal may agree not to exercise a right of control and still maintain an agency relationship. Restatement § 14(a).

We are convinced the hospital’s relationship to Dr. Webb was such as to render it vicariously liable for his negligence in carrying out the hospital’s emergency-response function. A hospital impliedly holds out to patients seeking care that its emergency-response staff will competently handle emergency situations in the absence of the patient’s personal physicians. This situation has been described as follows:

A hospital has an absolute duty to its emergency-room patients to provide competent medical care, a duty which cannot be delegated. Thus, a hospital may be vicariously liable for the negligence of its emergency-room caregivers, even if they are designated as independent contractors. This liability arises from an ostensible agency, in that an emergency-room patient looks to the hospital for care, and not to the individual physician — the patient goes to the emergency room for services, and accepts those services from whichever physician is assigned his or her case.

40A Am. Jur.2d Hospitals & Asylums § 48, at 460 (1999); see also Stipp v. Kim, 874 F.Supp. 663, 665 (E.D.Pa.1995) (same); Simmons v. St. Clair Mem’l Hosp., 332 Pa.Super. 444, 481 A.2d 870, 874 (1984) (same). We believe this nondelegable duty extends equally to outpatients entering the hospital emergency room and inpatients relying on emergency response in the absence of their chosen physician. The district court acted properly in allowing the jury to find that the hospital was vicariously liable for the acts of its emergency-room physician.

III. Whether the Hospital Was Entitled to a Directed Verdict on the Issue of Wrongful Death.

A. Standard of review. The court reviews a challenge to the denial of a motion for a directed verdict for correction of errors at law. Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002). The evidence is considered in the light most favorable to the nonmoving party. Id. If there is substantial evidence in the record to support each element of a claim, the motion for directed verdict must be overruled. Id. Additionally, if reasonable minds could reach different conclusions based upon the evidence presented, the issue is properly submitted to the jury. Id.

B. Discussion. The hospital asserts that it was entitled to a directed verdict on three grounds: (1) the submission of a wrongful-death claim was inconsistent with the district court’s refusal to submit a claim for lost chance of survival; (2) the evidence was insufficient to show the hospital did not provide the necessary standard of care; and (3) the evidence was insufficient to show that the hospital’s omissions, if any, were a proximate cause of the death of plaintiffs decedent.

1. Consequence of denying lost-chance-of-survival claim. We are convinced the fact that the district court did not submit a claim for lost chance of survival is of no legal consequence in determining whether a wrongful-death claim was properly submitted. Submission of the wrongful-death claim had to be determined on the merits of that claim and the proof of the respective elements of a wrongful-death action. The court’s refusal to submit a claim for lost chance of survival, even if inconsistent, would not preclude submission of a claim for wrongful death if the latter claim had support in the evidence.

2. Evidence of breach of the applicable standard of care. The plaintiff offered the testimony of Dr. Raphael, a trauma surgeon. This witness was asked the following questions:

Q. Now, Doctor let’s talk about the emergency response. Do you have an opinion as to whether or not the care that Mr. Wolbers received after he went into respiratory arrest was adequate and complied with the proper standard of medical care? A. Well, my opinion is that the answer to that is no on several counts.
Q. And can you tell us in what ways his emergency room care fell below the standard of care? A. I just felt that the emergency room doctor didn’t act like he had the ability to go any further if he once were unable to intubate the patient and in this case because he couldn’t see where he was and for whatever reason he wasn’t able to move that material out of the way so he could see.... [A]ll you have to do is stick a needle in that neck if that’s what you need to do to get some air in there temporarily, so I think there was a lot of deficiency in the management of the patient.

We are satisfied that this evidence was sufficient to allow the jury to find the hospital vicariously liable for the failure of its emergency-room physician to comply with the applicable standard of care.

3. Proximate cause. On the issue of proximate cause, Dr. Raphael was asked the following question:

Q. I’m asking you for an answer to a reasonable degree of medical certainty, can you testify as to whether or not it was more likely than not that had an airway been successfully established as you would have — as the standard of care you have required — would Mr. Wolbers have survived? A. Again, it depends how late in the course because there’s a point after which brain death intervenes, but had the airway been established and they had a viable patient, I think they could have brought him back yes.

In response to a later question, Dr. Raphael testified:

On the assumption that the people were in place at the time of the arrest and they established an airway, I think without a doubt he would have been survivable, yes.... I would say somewhere in the neighborhood of six minutes, seven minutes, eight minutes, perhaps ten minutes at the outside, you might have brain damage, but you would have a live patient.

We believe that this testimony was sufficient to permit the jury to find that inadequate emergency response by the hospital emergency-room staff was the proximate cause of the death of plaintiffs decedent.

IY. Whether the District Court Erred in Its Instructions to the Jury.

A. Eggshell plaintiff. The hospital asserts' it was inappropriate for the district court to give an “eggshell plaintiff’ instruction in a case involving a claim of medical malpractice. It urges that every patient can be considered to be an “eggshell plaintiff.” The instruction of which the hospital complains was as follows:

If the decedent, Samuel Wolbers, had a condition which made him more susceptible to injury than a person in normal health, then the Defendant is responsible for all injuries and damages which are experienced by the decedent proximately caused by Defendant’s actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.

We believe that the objection lodged to this instruction in the trial court was inadequate to preserve the challenge now being made on appeal. The hospital’s objection to this instruction was as follows:

We object to the use of the word normal health. The Court hasn’t defined normal health and the point is that the reason for this instruction as urged by the Plaintiff and accepted by the Court is that Mr. Wolbers had a condition which was a consequence of long-term smoking. There’s been evidence in this case of that effect. You heard it — heard it as recently as yesterday, your honor, yet one reads these instructions and they’re innocent of any suggestion that smoking is an issue in this case and the failure to instruct on that gives grievous harm to the Defendant and I think puts the court in equally grievous error.

The objection appears to have been an attempt to reassert the issue concerning comparative fault, which was disposed of in Division I of this opinion. It was insufficient to preserve the challenges to the instruction that are being made for the first time on appeal.

B. Presumptive evidentiary value of death certificate.

1. Arguments. The hospital asserts the cause of Mr. Wolbers’ death was an important issue in this case, and it was error for the district court not to instruct the jury that the death certificate was presumptive evidence of the facts contained therein. Plaintiff argues the requested instruction would have been an improper comment on the evidence and a misstatement of the law.

2. Analysis. The hospital requested the following jury instruction:

A certified copy of a death certificate by a physician is presumptive evidence of the facts contained in the death certificate.

We conclude that the proffered instruction was properly rejected by the district court. One of the fighting issues in this case was the cause of death. The death certificate stated as cause of death: “Sudden death due to left carotid endarterectomy 5/16/97, due to peripheral vascular disease due to tobacco use.” We have recognized that, although Iowa Code section 144.45 makes death certificates presumptive evidence of facts recited, that is limited

to such facts and data as are specific and known, but do not contemplate the perpetuating of hearsay testimony, which is merely conclusions or opinions of the person or persons making them.

Beardsley v. Ostrander, 254 Iowa 356, 359, 118 N.W.2d 61, 62-63 (1962) (citing Morton v. Equitable Life Ins. Co., 218 Iowa 846, 853, 254 N.W. 325, 328 (1934)). A jury given only the instruction proffered by the hospital would not be apt to draw the distinction between facts and opinions and might apply the statutory presumption to the cause of death as expressed in the death certificate. For that reason, the instruction was properly refused.

C. Hypothetical questions to an expert. The hospital argues that the court’s instruction regarding hypothetical questions and expert-witness testimony was a misstatement of the law and that it was prejudiced by the instruction. The instruction that has been challenged provided:

An expert witness was asked to assume certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. If any fact assumed in the question has not been proved by the evidence, you should decide if that omission affects the value of the opinion.

The hospital contends that the instruction does not truly state the law as established in Cody v. Toller Drug Co., 232 Iowa 475, 480, 5 N.W.2d 824, 827 (1942). Cody states the rule as follows:

[Answers] to hypothetical questions should be disregarded if the facts assumed have not been proven and juries are not permitted to pass on the materiality of such facts.

232 Iowa at 480, 5 N.W.2d at 827 (emphasis added). We need not decide whether the instruction given impermissibly deviates from the rule of law established in Cody. The hospital does not identify any hypothetical questions in the present case that assumed facts that were not proven. Consequently, we have no basis for concluding that the giving of the instruction was prejudicial even if it was improperly worded.

D. Submission of past loss of function of mind and body as an element of damage. The hospital urges that loss of function of mind and body was not a proper item of damage because it lacked support in the evidence. We have recognized that this element of damage may be allowed even though the time between a negligent act impeding a patient’s bodily functions and the time of death is brief. Mead v. Adrian, 670 N.W.2d 174, 179 (Iowa 2003).

Plaintiff’s evidence revealed that over the course of several hours her decedent’s upper airway became obstructed. Dr. Raphael testified that plaintiffs decedent went into respiratory arrest and died because of an upper airway obstruction. Before he completely lost consciousness, he was gasping for air. We conclude that the jury could have found that, for some time prior to his death, plaintiffs decedent suffered loss of ability to breath and loss of mental function as he succumbed to the effect of oxygen deprivation. This element of damage was properly submitted to the jury-

V. Whether the District Court Erred in Its Computation and Assessment of Interest.

A. Standard of review. The court’s scope of review on the assessment of damages and interest is for corrections of errors at law. Chariton Feed & Grain, Inc. v. Harder, 369 N.W.2d 777, 782 (Iowa 1985).

B. Arguments. The hospital argues that the interest on all elements of recovery except the $30,000 awarded for loss of function of body and mind and physical and mental pain and suffering should accrue from the date of the judgment, not from the date of the commencement of the action. The hospital also argues that no interest should be awarded on the portion of the damages for interest on burial expenses because that results in “double interest.”

The damages awarded, as itemized by the jury’s verdict, were as follows:

Loss of value to decedent’s estate $ 10,000
Interest on burial expenses 2,000
Loss of spousal support 172,000
Loss of spousal consortium 150,000
Loss of function of body and mind 6,000
Physical and mental pain and suffering 24,000

Interest on past damages accrues from the date the lawsuit was filed. Iowa Code § 668.13(1). Interest on damages awarded for future losses begins accruing on the date the judgment is entered. Iowa Code § 668.13(4). We agree with the hospital’s contention that the $30,000 awarded for loss of function of body and mind and physical and mental pain and suffering was the only recovery of past damages. The other elements of damage awarded were all future damages as contemplated by section 668.13(4). The interest allowed on plaintiffs recovery must be separately computed on past and future damages in accordance with our determination.

With respect to the recovery of interest on burial expenses, that element of damage is merged in and becomes part of the aggregate judgment upon which interest is properly allowed under Iowa Code section 668.13. Under that statute, interest accrues on the entire amount of the aggregate judgment, including those components that were items of interest. We have considered all issues presented and conclude that, subject to the correction of the interest award, the judgment of the district court should be affirmed.

AFFIRMED AS MODIFIED.

All justices concur except LAVORATO, C.J., and TERNUS and WIGGINS, JJ., who take no part.

      . The reason that the district court refused to submit a claim for lost chance of survival appears to be that the alternatives that were supported in the evidence were a more-likely-than-not chance of survival if the jury believed plaintiffs expert and a zero chance of survival if they believed the hospital’s experts.


author: /s/ Kathleen A. Blatz Chief Justice

text:
    In re Proposed Petition to Recall Secretary of State Mary KIFFMEYER.
    No. A04-83.
    Supreme Court of Minnesota.
    Jan. 22, 2004.
   ORDER

A proposed petition for the recall of Secretary of State Mary Kiffmeyer has been filed with the office of the secretary of state.. That office determined that the proposed petition meets the signature requirements of Minn.Stat. § 211C.04 (2002), and on January 16, 2004 forwarded the proposed petition to the clerk of appellate courts in accordance with that statute. Minnesota Statutes § 211C.05, subd. 1 (2002) requires the chief justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const, art. VIII, § 6, and Minn.Stat. § 211C.02 (2002). If the allegations are insufficient, the proposed petition is dismissed; if they' are sufficient, the chief justice appoints a special master to hold a public hearing. Minn.Stat. § 211C.05, subd. 1.

A previous petition to recall Secretary of State Kiffmeyer alleging grounds similar to those alleged in the present petition was dismissed on November 14, 2003, because it alleged no specific facts concerning the grounds for recall. In re Kiffmeyer, 671 N.W.2d 172 (Minn.2003).

The grounds for recall of a state officer other than a judge are “serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office for a serious crime.” Minn. Const, art. VIII, § 6; Minn.Stat. § 211C.02. The petition states two grounds for the recall of Secretary of State Kiff-meyer. First, the petition alleges legal defects in the wording of the oath of office she signed on January 6, 2003. Secretary of State Kiffmeyer’s signed oath of office comports with the oath requirements of Minn. Const, art. V, § 6, for officers in the executive branch. Further, a legal defect in the oath of office is not a basis for recall under article VIII, section 6 of the constitution because it is neither malfeasance nor nonfeasance.

The second ground for recall stated in the petition is nonfeasance in the performance of official duties by Secretary of State Kiffmeyer in relation to the filing of the oaths of office of members of the legislature. Nonfeasance is defined by statute as “the intentional, repeated failure of a state officer other than a judge to perform specific acts that are required duties of the officer.” MinmStat. § 211C.01, subd. 3 (2002). Nonfeasance under the recall statute thus requires not merely a failure to act, but a failure that is (1) intentional, (2) repeated, and (3) involves the failure to perform “specific acts that are required duties of the officer.” Minn.Stat. § 211C.01, subd. 3; see In re Hatch, 628 N.W.2d 125, 126 (Minn.2001) (nonfeasance under recall statute requires repeated failure to perform specific acts). Additionally, under the constitutional recall provision the nonfeasance must be “serious.” Minn. Const, art. VIII, § 6.

The petition asserts that the oaths of office of members of the legislature were not filed with the secretary of state as required by Minn.Stat. § 358.11(1) (2002), but instead with the chief clerk of the house of representatives and the secretary of the senate. The petition further asserts that four requests of the secretary of state’s office to inspect signed oaths were denied and the requestor was referred to the chief clerk’s office; and that this violated the requirements of the Minnesota Government Data Practices Act relating to requests for access to data. See Minn. Stat. § 13.03, subd. 3 (2002).

Section 358.11(1) provides:

Except as otherwise provided by law, the oath required to be taken and subscribed by any person shall be filed as follows:
(1) if that of an officer of the state, whether elective or appointive, with the secretary of state[.]

This statute requires that certain oaths be filed with the secretary of state but does not specify who must file the oath with that office. The act of filing the oath with the secretary of state is not among the “specific acts that are required duties of’ the secretary of state. Minn.Stat. § 211C.01, subd. 3. There is no allegation that the secretary of state refused or failed to file oaths tendered for filing by members of the legislature. In addition, even if the statute did impose a duty upon the secretary of state to file the oaths, the petition fails to state specific facts which, if proven, would establish that the failure to act was intentional or that any nonfeasance on her part was serious. Minn.Stat. §§ 211C.01, subd. 3; 211C.02; Minn. Const, art. VIII, § 6.

The Government Data Practices Act provides that upon request to the “responsible authority” of a government agency, “a person shall be permitted to inspect and copy public government data.” Minn.Stat. § 13.03, subd. 3(a) (2002). This statute imposes a duty upon any officer or office of the state. Minn.Stat. § 13.02, subd. 17 (2002). However, if the facts alleged in the petition were proven, Secretary of State Kiffmeyer would not have violated this statute by failing to produce for inspection data which was not in the possession of her office.

The petition fails to address specific facts that, if proven, would constitute grounds for recall. Accordingly, it is dismissed.

Petitioners also submitted a request that the undersigned recuse from participation in this matter, based on administration of the oath of office to members of the legislature and being a member of the legislature from 1979 to 1994. These facts do not provide a basis for concluding that the impartiality of the undersigned “might reasonably be questioned” in a recall petition that alleges defects in the wording of an oath and nonfeasance by the secretary of state in relation to the filing and production of oaths of office occurring in 2003. See Minn.Code Jud. Conduct, Canon 3.D(1).

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for recall of Secretary of State Mary Kiffmeyer be, and the same is, dismissed for failure to allege specific facts that, if proven, would constitute grounds for recall.

/s/ Kathleen A. Blatz Chief Justice

      . A petition to recall Governor Tim Pawlenty, based on allegations similar to those made in the present petition, was also filed with the secretary of state and forwarded to the clerk of appellate courts. See In re Pawlenty, No. A04-84, 673 N.W.2d 829, 2004 WL 170347 (Minn. Jan 22, 2004).

      . To the extent the asserted defect in the oath is based on a challenge to the validity of the Restructured Constitution of 1974, a recall petition is not the proper avenue for raising or deciding such a challenge.

      . A "responsible authority” in a state agency is the official responsible for the collection, use and dissemination of government data. Minn.Stat. § 13.02, subd. 16 (2002).


text:
    In re Proposed Petition to Recall Governor Tim PAWLENTY.
    No. A04-84.
    Supreme Court of Minnesota.
    Jan. 22, 2004.
   ORDER

The secretary of state has referred a proposed petition to recall Governor Tim Pawlenty to the chief justice for review. See Minn.Stat. § 211C.05, subd. 1 (2002). The statutory review process requires the chief justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const, art. VIII, § 6 and Minn.Stat. § 211C.02 (2002). Minn.Stat. 211C.05, subd. 1. If the allegations are insufficient, the proposed petition is dismissed; if they are sufficient, the chief justice appoints a special master to hold a public hearing. Id.

The grounds for recall of a state officer other than a judge are “serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office for a serious crime.” Minn. Const, art. VIII, § 6; Minn.Stat. § 211C.02. The petition alleges three grounds for the recall of Governor Pawlenty: (1) nonfeasance in filing an oath of office while a member of the legislature prior to his election as governor; (2) legal defects in the wording of the oath of office of governor he signed on January 6, 2003; and (3) nonfeasance in the performance of his constitutional duty to “take care that the laws be faithfully executed,” Minn. Const, art. V, § 3.

The first ground alleged in the petition is not a basis for recall. The constitution provides for “recall from office by the voters” of an officer on the ground of “nonfea-sance during the term, of office in the performance of the duties of the office.” Minn. Const, art. VIII, § 6 (emphasis added). Under this provision, recall from an elected official’s current office is not permitted for alleged nonfeasance while previously holding a different office.

As in In re Kiffmeyer, No. A04-83, 673 N.W.2d 827, 2004 WL 170344 (Minn. Jan. 22, 2004), filed herewith, the second ground alleged in the petition— legal defects in the oath of office — is not a basis for recall under article VIII, section 6 of the constitution because a defect in the wording of the oath is neither malfeasance nor nonfeasance. Also as in that case, Governor Pawlenty’s signed oath of office comports with the oath requirements of Minn. Const, art. V, § 6, for officers in the executive branch.

The third ground alleged in the recall petition relates to the assertion that the oaths of office of members of the legislature were not filed with the secretary of state as required by Minn.Stat. § 358.11(1) (2002), but rather with officers of the two houses of the legislature. This assertion is discussed in In re Kiffmeyer, in which the undersigned determined that the petition failed to allege facts that, if proven, would constitute grounds for recall of the secretary of state for nonfeasance. The petition in this matter does not state facts indicating that Governor Pawlenty even knew of an alleged violation of section 358.11(1); that any failure to act on his part was intentional or repeated, as required by section 211C.01, subd. 3; or that any such failure was serious, as required by article VIII, section 6 of the constitution.

The petition fails to state specific facts which, if proven, would constitute grounds for recall. It is, accordingly, dismissed.

Petitioners also submitted a request that the undersigned recuse from participation in this matter, based on administration of the oath of office to Governor Pawlenty and members of the legislature, and being a member of the legislature from 1979 to 1994. The same request was made in Kiffmeyer. As in that case, the request is denied. See' MinmCode Jud. Conduct, Canon 3.D(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”).

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for recall of Governor Tim Pawlenty be, and the same is, dismissed for failure to allege specific facts that, if proven, would constitute grounds for recall.

/s/ Kathleen A. Blatz Chief Justice

      . To the extent the asserted defect in the oath is based on a challenge to the validity of the Restructured Constitution of 1974, a recall petition is not the proper avenue for raising or deciding such a challenge.

      . The petition goes on to assert that because the oaths of legislators were not so filed, all members and officers of the legislature are disqualified to hold or exercise the powers of office; they should be prosecuted for usurpation of office; the governor signed legislation that the members of the legislature had no authority to enact; and the governor "refused to rectify this unconstitutional and illegal activity."


author: HANSON, Justice. ANDERSON, PAUL H., Justice

text:
    STATE of Minnesota, Appellant, v. Kathryn Lorraine STREIFF, Respondent.
    No. C8-02-1857.
    Supreme Court of Minnesota.
    Jan. 29, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, Helen R. Brosnahan, Special Assistant Olmsted County Attorney, Dakota County Judicial Center, Hastings, MN, for Appellant.
    Duane A. Kennedy, Rochester, MN, for Respondent.
   OPINION

HANSON, Justice.

Respondent Kathryn L. Streiff (Streiff) was charged with two felonies, criminal vehicular operation resulting in substantial bodily harm under MinmStat. § 609.21, subd. 2a(4) (2002), and criminal vehicular operation leaving the scene of the crime under Minn.Stat. § 609.21, subd. 2a(7) (2002). Over the prosecutor’s objection, the district court granted Streiffs motion under Minn. R.Crim. P. 15.07 to plead guilty to two lesser-included gross misdemeanor offenses. The district court found that although the state had sufficient evidence to proceed to trial, it would be a manifest injustice to have Streiff prosecuted for a felony. The court of appeals affirmed, holding that the state had failed to show an abuse of the district court’s discretion. State v. Streiff, No. C8-02-1857, 2008 WL 1702255, at *1 (Minn.App. Apr.1, 2003). Because the collateral consequences of prosecuting Streiff on the felony charges do not constitute a manifest injustice under Rule 15.07, we reverse.

On January 5, 2002, Streiff and her husband James Streiff (James) were involved in a one-car rollover accident in Olmsted County. Witnesses reported that Streiff was on the driver’s side of the vehicle, or was getting out of the driver’s side, when they arrived at the scene. Witnesses found James injured and lying in a ditch near the vehicle. Witnesses reported that Streiff had wandered off from the accident scene and was found among the trees a short distance away. A preliminary breath test of Streiff taken at the scene registered a blood alcohol content of 0.162. Streiff then submitted to a blood test that indicated a blood alcohol content of 0.17.

A state trooper took a statement from James two days after the accident. James stated that he could not remember the accident, but remembered that he and his wife had been drinking prior to the accident. The trooper obtained a release for James’s medical records. Based on the release, James’s treating physician reported that James sustained substantial bodily harm as a result of the accident. When James discovered that his medical records had been released to the county attorney’s office and were being used to prosecute his wife, he sent letters to the Minnesota State Patrol revoking all releases of medical information; the hospital revoking the medical information release; and the Assistant Dakota County Attorney, stating his opposition to the prosecution of his wife and his concern that his wife would lose her job if convicted of a felony.

After being charged with the two felonies, Streiff filed a motion under Minn. R.Crim. P. 15.07 requesting that she be allowed to plead to a lesser offense. Under Rule 15.07, a district court may accept a plea of guilty to a lesser offense if (1) “the court is satisfied following [a] hearing that the prosecutor cannot introduce evidence sufficient to justify the submission of the offense charged to the jury” or (2) “it would be a manifest injustice not to accept the plea.” The district court granted the motion over the state’s objection and accepted a guilty plea from Streiff to two lesser-included, gross misdemeanor charges, violations of Minn.Stat. § 609.21 subd. 2b(4) and 2b(7) (2002). The district court noted that the state had sufficient evidence to proceed to trial on the felony charges, but found that to do so would effect a “manifest injustice.” The court relied on five factors: (1) James did not want Streiff to have a felony conviction; (2) Streiffs family would be harmed by the felony conviction by Streiffs possible loss of employment; (3) public policy concerns of deterrence and punishment would be met by the conviction of two gross misdemeanors; (4) the offense was an unintended consequence of an intentional act; and (5) Streiff had accepted responsibility for her actions.

A majority of the court of appeals affirmed the district court, holding that the state failed to show an abuse of discretion by the district court. State v. Streiff, 2003 WL 1702255, at *1. The court stated that while the prosecutor has the final decision on what to prosecute, the court retained the authority on sentencing. Id. at *2. The dissenting opinion argued that the circumstances were not sufficient to show a manifest injustice, noting that this court has set a higher standard for “manifest injustice” in the comparable context of a motion to withdraw a guilty plea under Minn. R.Crim. P. 15.05. Id. at *3. Additionally, the dissent observed that the factors relied upon by the district court to constitute manifest injustice are factors that commonly appear in criminal cases and could not be considered under the sentencing guidelines to support a downward sentencing departure. Id. at *4 n. 1.

Streiff does not argue that the prosecution abused its discretion in bringing the felony charges. Neither does Streiff argue that she was selectively prosecuted for some discriminatory reason. Instead, she essentially argues that the potential loss of her employment, coupled with the objection by the victim to the felony prosecution, amount to manifest injustice. The state argues that the factors do not rise to the level of manifest injustice and that the district court’s acceptance of a plea to lesser charges violates the separation of powers provision of the Minnesota Constitution.

A. Separation of Powers

A review of the history of Minn. R.Crim. P. 15.07 demonstrates the state’s separation of powers concerns. Prior to 1980, Rule 15.07 did not place any conditions on the district court’s discretion to accept a guilty plea to a lesser charge over the objection of the prosecutor. It simply stated “the court may accept a plea of guilty to a lesser included offense or to an offense of a lesser degree.”

In 1980, we decided State v. Carriere, 290 N.W.2d 618, 619 (Minn.1980), which addressed the following certified question from the district court: “Under Minnesota Rules of Criminal Procedure 15.07, can the court accept a plea to an offense of lesser degree over the voiced opposition of the county attorney?” We said:

If the second sentence of Rule 15.07 were interpreted as leaving to the trial court’s complete discretion the decision whether to accept a guilty plea opposed by the prosecutor, the [separation of powers] constitutional argument the prosecutor makes in this case would have merit. We believe, however, that conditions can be placed on the trial court’s acceptance of such a plea which will eliminate the danger of judicial intrusion into an area reserved for prose-cutorial discretion.

Id. To satisfy separation of powers concerns, Carriere conditioned the district court’s acceptance of the defendant’s motion on whether the prosecutor can “demonstrate to the trial court that there is a reasonable likelihood the state can withstand a motion to dismiss the charge at the close of the state’s case in chief.” Id. We concluded that if the prosecutor can satisfy this condition, the district court “should refuse to accept the tendered guilty plea.” Id. at 621.

In 1983, Rule 15.07 was amended to reflect the condition suggested in Carriere, but the amendment added a second condition, that the district court could also grant the defendant’s motion over the prosecutor’s objection when “it would be [a] manifest injustice not to accept the plea.” Minn. R.Crim. P. 15.07. The phrase “manifest injustice” is not defined in Rule 15.07 and is not discussed in the comments to the rule.

B. Case Laio Under Rule 15.07

In State v. Stafford, 340 N.W.2d 669, 670 (Minn.1983), we held that it was error for the district court to accept a plea to a lesser offense where the prosecutor’s offer of proof demonstrated a reasonable likelihood that the state could withstand a motion to dismiss on the charged offense. We noted that the amended rule also allowed the acceptance of a plea based on a finding of “manifest injustice,” but, without further discussion, we simply concluded that it was not a manifest injustice to charge a defendant with felony assault in the third degree for striking the victim, knocking her unconscious, and breaking her nose. 340 N.W.2d at 671 n. 2. This has been our only decision under the amended version of Rule 15.07.

In the absence of any decisions by this court on the meaning of “manifest injustice” under Rule 15.07, the court of appeals has developed a hybrid test with two parts, stating “[t]he ‘manifest injustice’ provision [of Minn. R.Crim. P. 15.07] more properly applies to situations like a dishonored plea bargain, or to prosecutorial decisions based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” State v. Favre, 428 N.W.2d 828, 831 (Minn.App.1988).

The court of appeals has applied this interpretation of manifest injustice in eight cases. In all cases except Neddermeyer, where there was evidence sufficient to enforce a plea agreement, the court has held that the circumstances were insufficient to constitute a “manifest injustice.” These circumstances included: (1) the charged crime was defendant’s first offense and defendant had made numerous trips from Chicago to the Twin Cities to resolve the charges, State v. Gilmartin, 550 N.W.2d 294, 297 (Minn.App.1996); (2) the state withdrew its plea offer on the first day of trial, after the court ruled certain evidence admissible, State v. Hoffa, 511 N.W.2d 462, 463 (Minn.App.1994); (3) the state required the defendant to stand trial on the offense charged even though the plea would have resulted in the same punishment as a lesser offense, Favre, 428 N.W.2d at 830 (Minn.App.1988); (4) the district court believed that the statute was unconstitutionally vague and discriminato-rily applied, State v. McAllister, 399 N.W.2d 685, 688-690 (Minn.App.1987); (5) the district court accepted the defendant’s statement that he had paid the fine for which his license had been suspended before being stopped for a driving after suspension violation and the delay in processing his payment was the cause of his not having a license, State v. Whitley, No. C4-99-726, 1999 WL 809776 at *1 (Minn.App. Oct.12, 1999) (unpublished opinion); and (6) the defendant would suffer the same consequences under the lesser offense, he was using a legally obtained drug that impaired his driving, and the defendant had displayed good behavior for two years, State v. Heibel, No. C6-94-2295, 1995 WL 81395 at *2 (Minn.App. Feb.28, 1995) (unpublished opinion).

C. Case Law in Related Areas

The parties support their respective interpretations of Rule 15.07 by referring to our decisions concerning the division of power between the prosecutor and the court at other stages in the prosecution of a crime. The prosecution of a criminal defendant may move through several potential stages, from a complaint issued by the prosecutor or an indictment returned by a grand jury; to plea negotiations; to the entry of a plea; to the ordering of a stay of adjudication or a stay of imposition or of execution of a sentence; to the execution of a sentence. At one end of this spectrum, bringing charges and plea bargaining, the discretion rests almost entirely with the prosecutor. At the other end of the spectrum, the imposition of the sentence or staying the imposition or execution of a sentence, the discretion rests almost entirely with the court. But the separation of powers is perhaps not as clear for the stages that lie in between.

1. Stay of Adjudication

Streiff relies on two cases involving stays of adjudication to support her view that the district court had the authority to accept her plea to the lesser charges, State v. Krotzer, 548 N.W.2d 252 (Minn.1996) and State v. Olson, 325 N.W.2d 13 (Minn.1982). Preliminarily, we note that because the act of the court in accepting a plea over the objection of the prosecutor is more intrusive of the prosecutor’s charging function than ordering a stay of adjudication, the restriction on the court’s authority to accept a plea to a lesser charge would logically be greater than that on the court’s authority to order a stay of adjudication.

In Krotzer, this court held that the district court had the inherent power to stay adjudication where special circumstances so indicate. 548 N.W.2d at 255. Krotzer was a 19-year-old boy who was charged with statutory rape for having consensual sex with his 14-year-old girlfriend. Id. at 253. Krotzer entered a guilty plea to the prosecutor’s charge but requested the court to stay adjudication of his crime. The Department of Corrections, remarking on the lack of aggression in Krotzer’s history and the inappropriateness of requiring him to register as a sex offender, recommended that he be placed on probation under a stay of adjudication. The victim’s mother agreed. The district court postponed acceptance of the guilty plea and, over the objection of the prosecutor, stayed adjudication and placed Krotzer on probation for 60 months. This court held that the district court had inherent power to stay the adjudication in the “furtherance of justice.” Id. at 254-55.

In Olson, after the defendant had pleaded guilty to assaulting his wife with a dangerous weapon, the district court stayed the 54-month prison sentence for 10 years. 325 N.W.2d at 16. The district court described “strong mitigating factors,” including the wife’s belief that the defendant was a “good man” and no danger to her, the wife was not seriously hurt (although struck on the arm by a bullet), and the probable loss of the family home and the inability of the children to continue to attend “educational programs beyond high school” if the defendant was incarcerated. Id. This court held that the district court had the authority to stay the prison term over the prosecutor’s objection. Id.

But Krotzer and Olson are not particularly helpful to Streiff because in each case, the district court’s action took place during the sentencing stage and did not involve a direct intrusion on the charging or plea-bargaining functions of the prosecution. In fact, Krotzer recognized that the court’s authority to interfere with the charging function of a prosecutor is much less than its authority in sentencing, stating:

Under established separation of power rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor’s charging authority.

548 N.W.2d at 254 (citations omitted). Moreover, Streiff fails to recognize that this court restricted the holding in Krotzer when it later confirmed that the district court may stay adjudication only where “special circumstances” are present. State v. Foss, 556 N.W.2d 540 (Minn.1996). This court emphasized in Foss that a stay of adjudication should only be used “sparingly ” and only for “the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.” Id. at 541 (emphasis in original). Thus, Foss is even less favorable for Streiff because it recognizes that separation of powers affects not only the authority of the court to directly interfere with the charging function, but also limits the court’s authority to indirectly interfere through sentencing.

Even more damaging to Streiffs argument is the decision of this court that followed Foss. In State v. Twiss, 570 N.W.2d 487 (Minn.1997), this court reversed the district court’s stay of adjudication of the defendant’s guilty plea, which had been granted over the objection of the prosecutor based on the possibility that the defendant might lose her job if convicted of a gross misdemeanor. We said that the possible loss of a job is not a “special circumstance” under Foss. “Rather, it is the sort of consequence that commonly attends a conviction of a serious offense, such as the offense in this case.” Id.

Thus, Streiffs reliance on the stay of adjudication analogy does not support her argument. If the factors relied upon to grant Streiffs Rule 15.07 motion are not special circumstances that would support a court’s indirect interference with the charging function through a stay of adjudication, they provide even less support for the court’s more direct interference by accepting a plea to a lesser charge.

2. Dismissal under Minn.Stat. § 631.21

Streiff argues that because the court had the power to dismiss the charges on its own motion under Minn.Stat. § 631.21 (2002), it had the implied authority to take the less severe measure of accepting a plea to a lesser charge. Section 631.21 provides: “The court may order a criminal action, whether prosecuted upon indictment or complaint, to be dismissed. The court may order dismissal of an action either on its own motion or upon motion of the prosecuting attorney and in furtherance of justice.”

But this argument merely begs the question of what the scope of the authority of the court really is under section 631.21. First, such a dismissal ordinarily would not have the effect of precluding the prosecutor from recharging the accused. In Krotzer, we said: “While dismissing the complaint under section 631.21 might have avoided the need for a stay of adjudication, the prosecutor would have been free to reinstate identical criminal charges against Krotzer.” 548 N.W.2d at 255. See also City of St. Paul v. Halvorson, 301 Minn. 48, 52, 221 N.W.2d 535, 537-38 (1974) (stating that dismissal under section 631.21 is not appealable, but it is not “with prejudice,” leaving the prosecutor free to file a new complaint); 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice-Criminal Law and Procedure § 11.19 (3d ed.2001). Thus, dismissal of a charge under the statute would actually be less intrusive of the prosecutor’s charging function because it would be without prejudice to the reinstatement of charges.

Second, to the extent that it was argued that such a dismissal might preclude further charges, the statute would raise the same separation of powers issues that were present in Carriere and led the court to imply restrictions on the authority of the court to interfere with the prosecutor’s charging function.

S. Withdrawal of a Guilty Plea

The state relies in part on the analogy to the high standard for “manifest injustice” established by this court, under Minn. R.Crim. P. 15.05, to allow the withdrawal of a guilty plea. We have applied an “abuse of prosecutorial discretion” standard to define “manifest injustice” under Rule 15.05 and have confirmed that collateral consequences of a plea, including loss of employment, do not support a finding of abuse of prosecutorial discretion. See Kaiser v. State, 641 N.W.2d 900 (Minn.2002) (requirement to register as a predatory offender); Alanis v. State, 583 N.W.2d 573 (Minn.1998) (deportation); Barragan v. State, 583 N.W.2d 571 (Minn.1998) (deportation); Kim v. State, 434 N.W.2d 263 (Minn.1989) (loss of employment). Because allowing the withdrawal of a plea is less intrusive of the prosecutor’s discretion than accepting a lesser plea (after withdrawal, the original charge still stands), the restriction on the authority of the court to accept a plea to a lesser offense should be at least as great as that on the court’s authority to allow a defendant to withdraw a guilty plea. Thus, “manifest injustice” under Rule 15.07 should not be interpreted any more broadly than manifest injustice under Rule 15.05 — as the abuse of prosecutorial discretion.

L Sentencing Departures

The state relies in part on the analogy to the Minnesota Sentencing Guidelines to argue that factors that do not justify a downward departure under the guidelines should not be considered sufficient to supply manifest injustice under Rule 15.07. Circumstances involving employment or family status are specifically excluded from consideration in making a downward departure in sentencing. Minnesota Sentencing Guidelines II.D.l. If such factors do not support a sentencing departure, which only indirectly interferes with the prosecutor’s charging function, they should likewise provide no support for the acceptance of a plea to a lesser charge, which directly interferes with the charging function.

We conclude that the standard of proof required to establish a “manifest injustice” under Rule 15.07 is at least as high as that required under Rule 15.05, which necessitates a showing of abuse of prosecutorial discretion. We hold that the factors relied upon by the district court here do not establish an abuse of prosecu-torial discretion.

Reversed and remanded.

ANDERSON, PAUL H., Justice

(concurring).

It is easy to do justice, but it is much harder to do right.

Sir Robert Morton

Barrister and M.P.

“The Winslow Boy”

I join in the court’s opinion. Under the laws of the State of Minnesota, our rules, and the separation of powers doctrine, it is not a “manifest injustice” for the state to have charged Kathryn Lorraine Streiff with a felony for her alleged misconduct. Nevertheless, I write separately to add some comments on the concepts of justice, injustice, and punishment. This case demonstrates how difficult it is to establish the line separating the executive branch’s power to charge a criminal offense from the judiciary’s authority to supercede that power. Moreover, our holding illustrates that the executive branch’s power to charge a criminal offense is awesome and sometimes may be difficult to exercise in a just manner. The facts of this case and our holding provide the opportunity for me to explore the issue of whether it is sufficient for the state to see that “justice shall be done” or whether the state also has an additional obligation to ascertain that the right thing is done.

I begin by addressing our use of the term “manifest” to modify the word “injustice” in Minn. R.Crim. P. 15.07. Much of our difficulty in interpreting this rule stems from the use of the term “manifest.” It is a word that “often functions in suspect ways in legal writing.” I agree with Garner that it “is one of those vague terms by which lawyers 'create an appearance of continuity, uniformity and definiteness (that does) not in fact exist.’ ”

If everyone’s definition of injustice was uniform, there would be no need to modify' its use in Rule 15.07. But this is not the case. The definition of injustice often varies with the individual doing the defining. As Justice Oliver Wendell Holmes stated to a young aide shortly after he declined a request for a writ of habeas corpus in the Sacco-Vanzetti case:

Don’t be foolish, boy. We practice law, not “justice.” There is no such thing as objective “justice,” which is a subjective matter. A man might feel justified in stealing a loaf of bread to fill his belly; the baker might think it most just for the thiefs hand to be chopped off, as in Victor Hugo’s Les Miserables. The image of justice changes with the beholder’s viewpoint, prejudice or social affiliation. But for society to function, the set of rules agreed on by the body politic must be observed-the law must be carried out.

Lira Baker, The Justice From Beacon Hill: The Life and Times of Oliver Wendell Holmes 608 (Harper Collins 1991) (emphasis added.) More recently and closer to home, former Anoka County Attorney Robert W. Johnson made the following observation about justice: “Now justice, you can play around with that word a lot. What’s justice to one person is not justice to another person.”

Because the definition of injustice can vary based on the beholder’s viewpoint, the law requires a term that is more precise. This is especially true in the case of Rule 15.07 which operates in the realm of the delicate balance of power between the executive and judicial branches of government. The rule attempts to achieve this precision by modifying “injustice” with the word “manifest.”

As used in Rule 15.07, “manifest” serves a useful purpose. It significantly narrows the circumstances under which a court can, over the state’s objection, accept a defendant’s plea to a less serious offense than the one charged by the state. For a court to exercise its discretion to accept a plea to a lesser offense over the state’s objection, the injustice must be so obvious and extreme that it exceeds the bounds of what is a reasonable exercise of the state’s power to charge an individual with a particular crime. To constitute a manifest injustice, the state’s action must approach conduct that, when a recitation of the facts is given to an average citizen, the citizen is inclined to exclaim “that’s outrageous.”

With the foregoing understanding of Rule 15.07 in mind, I next explore what constitutes a just punishment. Punishment has always been part of the human retribution system. Justice requires that wrongdoers be subject to punishment. A wrongdoer must be subject to punishment because we are a society governed by the rule of law, and it is the rule of law that permits us to function as a civil society. All citizens receive benefits from participating in a civil society. We are able to live by rules that are more or less fixed, thus enabling us to ascertain in advance how others will behave and to have a reasonable assurance that all will receive like treatment. But, in return for these benefits, citizens of a civil society must accept the responsibility and burden of exercising certain restraints on individual behavior. In a civil society, when citizens obey the law, there is a moral equilibrium, but when the law is disobeyed, this equilibrium is disrupted.

When a person disobeys the law, she becomes a wrongdoer who may receive an unjust double benefit. Not only does she benefit from others obeying the law, but she also may receive the physical, psychic, and/or economic benefits derived from her criminal conduct. Punishment as a consequence of misconduct is necessary for a civil society to maintain and restore its moral equilibrium. Through punishment, the wrongdoer repays her debt to society and then, after repaying that debt, rejoins society and does so on a full and equal footing with those who have obeyed the law. A failure to punish appropriately may even be a sign of disrespect for the wrongdoer, for when there is a serious transgression against society, too little punishment can result in injustice. By imposing the appropriate punishment, society shows respect for the wrongdoer’s interests and demonstrates the belief that the wrongdoer has the capacity of an autonomous person who was bad — not sick— and is capable of being restored as a citizen of society. Thus, there exists a sound and rational basis to appropriately punish a wrongdoer.

This obvious conclusion brings me to my next question, which has a less obvious answer. What role, if any, do mercy and compassion play when ascertaining the just punishment for a particular crime? Some people exclusively emphasize retribution as the basis for punishment and argue that in a just system, there is little room for the sentimentality associated with mercy and compassion. They argue that, while mercy is a moral virtue, there is a danger that it can and will be overvalued in the justice system. They assert that anger and retribution toward the wrongdoer are natural, while mercy is an improper response to the wrongdoer’s insulting message to society. This approach can manifest itself when prosecutors, without exception, follow a policy of always charging and pursuing the most serious, readily provable offense or offenses supported by the facts of a case. Judges frequently see this attitude expressed in court, especially when the time comes to exercise sentencing authority. On a daily basis, judges face the question whether it is inappropriate, even presumptive, for them to ignore or condemn attitudes that focus exclusively on anger and retribution. Should these attitudes trump any thought of mercy? Should a judge be permitted to nurture a heightened awareness that such attitudes can blind the court to circumstances that make the wrongdoer’s actions more pathetic than evil?

It is my contention that a legal system must provide room for the qualities of mercy and compassion as elements in any equation that seeks justice as its end result. Moreover, these qualities should exist at all stages of the system — with the police, prosecutors, and the courts. Without mercy and compassion, a legal system cannot be truly just. This view is neither novel nor foreign to our justice system. For example, 80 years ago, Justice Benjamin Cardozo wrote “Perhaps we shall even find at times that when talking about justice, the quality we have in mind is charity.”

But when are mercy and compassion appropriate? This question can present a dilemma for judges, and I assume the same is true for the police and prosecutors. A dilemma exists because justice, mercy, and compassion are so different. Mercy and compassion are gifts that can be bestowed. They are not rights to which a wrongdoer is entitled. Shakespeare said it well in the Merchant of Venice when he wrote:

The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the plain beneath: it is twice blessed;
It blesseth him that gives and him that takes:
‘Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown.

Is it wise for us to have a system that permits mercy to season justice? Should the people grant to government officials the power to act mercifully? Does the general welfare and common good — the commonweal — require that mercy be part of the justice system? I submit that we want a system that allows for both justice and mercy; otherwise, we become a society that is rigid, unduly strict, unbending, and myopic in its pursuit of justice. Justice must always be our primary goal, but where circumstances demand, true justice requires that we have the discretion to act in a merciful manner. Having the power to act mercifully enables a person to do the right thing. Thus, a civil society must make room for mercy, must want it, must ask for it, and indeed in some cases must demand it.

So where does the foregoing discussion take me with respect to the case at hand? As our court’s opinion points out, under Minnesota law, it was not a manifest injustice for the state to charge Marilyn Streiff with a felony for her alleged misconduct. Manifest injustice does not exist here because the felony charge does not result in an obvious injustice that exceeds the bounds of what is a reasonable exercise of the state’s power to charge. Under our separation of powers doctrine, it was the district court, not the state, that overstepped its bounds.

Perhaps the district court acted as it did in an effort to do the right thing and, in doing so, season justice by bestowing mercy. As the court stated, (1) Streiff s husband, who was also the victim of her criminal conduct, did not want her to have a felony conviction; (2) Streiff s family would be unduly harmed by a felony conviction because she would lose her job; (3) public policy concerns of deterrence and punishment would be met by two gross misdemeanor convictions; (4) the offense was an unintended consequence of an intentional act; and (5) Streiff accepted full responsibility for her actions. The court may have acted as it did to prevent Mr. Streiff from being twice a victim, first by his wife and second by the justice system. Even if the court believed that it should do the right thing and act to prevent an injustice, it could not do so because the state’s action did not reach the limits of what we view to be a manifest injustice. Therefore, there is little doubt that under the law we are doing the right thing by reversing the district court’s decision.

Our conclusion that the state acted within its authority under the law still leaves a question that is not for us to answer — it is one upon which I can only ponder. Has the state not only sought to see that “justice shall be done,” but, when doing so, has it done the right thing? I have no doubt that the state believes it has acted in a manner consistent with its legal mandate and is doing justice. Whether it has done the right thing is another question. In “The Winslow Boy,” defense attorney and member of Parliament Sir Robert Morton successfully defended the Winslow boy against false charges at great sacrifice to the family’s status, health, and wealth. At the end of the movie, Sir Robert said, “Right has been done.” But then he added, “It is easy to do justice, but it is much harder to do right.” Under the circumstances of this case, our justice system leaves it to the state to determine what is the right thing to do. I trust that the state will fulfill its role as a minister of justice, will address this hard question, and then exercise its discretion by doing what is right.

      . Article 3, § 1 of the Minnesota Constitution provides: "The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this Constitution.”

        . The files of the court's criminal rules committee do not reflect any discussion of why the “manifest injustice” language was included. The files do contain comments submitted by the state attorney general and several county attorneys, objecting to the manifest injustice language and noting the possible separation of powers issues that could arise under it.

      . The first part of the test was apparently based on State v. Neddermeyer, No. C0-87-1415, 1987 WL 26901, at *2 (Minn.App. Dec.15, 1987) (unpublished opinion), where the court held that the district court did not abuse its discretion by allowing the defendant to plead to a lesser offense when the court found that a plea bargain had been offered and accepted prior to the hearing. The second part of the test was drawn from Wayte v. U.S., 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), where the Court addresses issues of selective prosecution.

      . In State v. Leming, 617 N.W.2d 587 (Minn.App.2000), the court of appeals addressed several other factors relied upon by the district court in ordering a stay of adjudication and found them all to fall short of the “special circumstances” test. Similar to the factors relied upon by the district court here, these included (1) the possibility of the loss of employment; (2) the inability of the defendant to pay restitution if she lost her job; (3) the victim’s agreement to the stay; (4) the defendant’s lack of a criminal record; and (5) the defendant’s remorse. Id. at 589-90.

      . "The Winslow Boy” (Sony Pictures Classics 1999).

      . The United States Supreme Court has stated that a government lawyer
      is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

        Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (emphasis added).
      "The primary responsibility of prosecution is to see that justice is accomplished.” Nat'l Dist. Attorneys Ass’n, National Prosecution Standards (2d ed.1991).
      "The duty of the prosecutor is to seek justice, not merely to convict.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-1.2 (3d ed.1993).

      . Bryan A. Garner, A Dictionary of Modem Legal Usage 547 (2d ed.1995).

      . Id.

      . Robert W. Johnson, Attorney at Law and former Anoka County Attorney, "The Role of the County Attorney: Ministers of Justice,” 2002 Minnesota County Attorneys Annual Meeting, November 21, 2002.

      . Fred R. Shapiro, The Oxford Dictionary of American Legal Quotations 231 (Oxford University Press 1993).

      . Elizabeth M. Knowles, The Oxford Dictionary of Quotations 688 (5th ed. Oxford University Press 1999).