DARRIN P. MILLER, individually, as executor of the ESTATE OF MEREDITH R. MILLER, and as parent, guardian, and next of friend of S.M.M., a minor, Appellee, vs. CATHOLIC HEALTH INITIATIVES-IOWA, CORP. d/b/a MERCYONE DES MOINES MEDICAL CENTER, WILLIAM NOWYSZ, JOSEPH LOSH, HIJINIO CARREON, NOAH PIROZZI, DANIELLE CHAMBERLAIN, and DARON DARMENING, Appellants, and IOWA DEPARTMENT OF TRANSPORTATION, STATE OF IOWA, SNYDER & ASSOCIATES, INC., COMPANY, INC. (an unidentified corporation), Defendants.
No. 22-1574
IN THE SUPREME COURT OF IOWA
May 24, 2024
Submitted March 21, 2024
Defendant medical providers bring interlocutory appeal from rulings denying their motion to dismiss and motion for summary judgment under
Waterman, J., delivered the opinion of the court in which all justices joined.
Theodore T. Appel (argued) and Frederick T. Harris of Lamson Dugan & Murray LLP, West Dеs Moines, for appellants Catholic Health Initiatives, Losh, Pirozzi, Chamberlain and Darmening.
Thomas F. Ochs (argued) and Richard A. Stefani of Gray, Stefani & Mitvalsky, PLC, Cedar Rapids, for appellants Nowysz and Carreon.
Jenna L. Cruise (argued) and Joshua L. Dewald of Hupy and Abraham, S.C. P.C., West Des Moines, and Marc S. Harding of Harding Law Office, Des Moines, for appellee.
Jessica A. Zupp of Zupp and Zupp Law Firm, P.C., Denison, for amicus curiae Iowa Association for Justice.
WATERMAN, Justice.
Does an unsworn signature on an expert‘s certificаte of merit substantially
After the district court‘s rulings, we held in Estate of Fahrmann v. ABCM Co., 999 N.W.2d 283, 288 (Iowa 2023), that a lawyer‘s signature on initial disclosures did not substantially comply with
Applying that precedent, we now hold that the expert‘s signed but unsworn report did not substantially comply with
I. Background Facts and Proceedings.
According to the plaintiff‘s petition, on December 15, 2019, Meredith Miller was a passenger in a car driven by her daughter southbound on a snow-covered Interstate 35 in Polk County. Her daughter lost control of the car, which slid off the highway and collided with a tree. Meredith sustained head injuries. The Ankeny Fire Department responded within minutes. The paramedics at the scene determined that Meredith needed help breathing and placed a supraglottic device into her throat to maintain an open airway. The paramedics transported Meredith by ambulance to MercyOne Des Moines Medical Center. Her blood oxygen level remained stable throughout the transport.
At MercyOne, Meredith was treated by emergency room physicians Dr. William Nowysz and Dr. Hijinio Carreon, trauma surgeon Dr. Joseph Losh, general surgeons Dr. Noah Pirozzi and Dr. Danielle Chamberlain, and respiratory therapist Daron Darmening. The physicians decided that the original airway device placed by the paramedics should be replaced with a different one: an oral endotracheal tube.
identified the cause of death as a traumatic brain injury with esophageal intubation as a contributing cause.
On October 28, 2021, Meredith‘s surviving husband Darrin Miller—individually, as executor of Meredith‘s estate, and on behalf of their daughter as her parent and guardian—sued the Iowa Department of Transportation and the State of Iowa for negligent failure to remove the tree next to Interstate 35 and alleged medical malpractice claims against Catholic Health Initiatives (MercyOne Des Moines Medical Center) and the treating physicians and nurses.1 Miller alleged that the medical providers “were negligent by breaching the standard of care” by “negligently performing an esophageal intubation,” “negligently failing to identify that the esophageal intubation was performed instead of a tracheal intubation,” “negligently failing to correct the esophageal intubation,” “knowingly being aware of the esophageal intubation” and “not being forthcoming about the cause of [Meredith‘s] death,” and “knowingly performing other attempts at tracheal intubation after [Meredith] was pronounced dead in an effort to cover up the esophageal intubation.”
Dr. Nowysz and Dr. Carreon filed their answer to Miller‘s petition on December 23, starting the sixty-day clock under
Miller retained two experts to testify about the standard of care and breach: Dr. Lynette Mark and Dr. Mustapha Sahеed. Dr. Mark is a
board-certified anesthesiologist at Johns Hopkins Hospital, the Director of the Difficult Airway Response Team, and a Professor of Anesthesiology and Critical Care Medicine at Johns Hopkins University School of Medicine. Dr. Saheed is a board-certified emergency medicine physician at Johns Hopkins Medical Center.
On February 21, Miller, by email, served both sets of defendants a document entitled “Service of Certificate of Merit and Notice of Same,” attaching Dr. Mark‘s “Expert Report of Findings and Opinions” and her curriculum vitae, outlining her qualifications. The report included her factual findings and her expert opinion that the treatment of the decedent by all medical provider defendants fell below the appropriate standard of care. The report was signed by Dr. Mark on Johns Hopkins Medicine letterhead, but it did not include an affidavit, sworn oath, or any declaration that she signed under penalty of perjury.
Miller never served any certificate of merit from Dr. Saheed. Miller did not ask defense counsel to agree to an extension of the sixty-day statutory deadline for certificates of merit, nor did Miller file a motion with the court to extend the deadline.
On May 12, Catholic Health Initiatives, Dr. Joseph Losh, Dr. Noah Pirozzi, Dr. Danielle Chamberlain, and Daron Darmening filed a motion to dismiss pursuant to
Miller resisted both motions. He argued that Dr. Mark‘s February 20 letter substantially complies with
On June 2, Miller served a document captioned “Affidavit of Dr. Lynette Mark,” which she signed as “affiant” and dated that day. No notary signed the document. The document stated in full:
I, Dr. Lynette Mark, M.D., certify, under penalty of perjury and pursuant to the laws of the State of Iowa, that the following is true and correct.
In December of 2021, I was retained by Counsel for Plaintiffs to provide a qualified expert opinion with regard to the professional negligence claims in the above-captiоned case. I provided my expert opinion in this regard to Counsel for Plaintiffs in a letter dated February 20, 2022. I, Dr. Lynette Mark, M.D., certify, under penalty of perjury and pursuant to the laws of the State of Iowa, that the expert opinion letter dated February 20, 2022, which I produced to Counsel for the Plaintiffs, was true and correct, and all opinions made therein were made within a reasonable degree of medical certainty.
This filing came three weeks after the defendants filed their dispositive motions—105 days аfter the statutory deadline for filing the certificate of merits for defendants Dr. Nowysz and Dr. Carreon, and 94 days after the deadline as to the remaining defendants.
The district court denied each motion in separate but nearly identical rulings. First, the district court found that although Dr. Mark did not sign her letter under oath, it substantially complied with
Miller‘s expert and qualifications,” and “it set forth in the expert‘s own words all of the information required” in the statute. Second, the district court found that Dr. Mark‘s qualifications are in “the same or a substantially similar field” as the defendants, namely “airway management.” See
The defendants applied for interlocutory review. We granted their application and retained the case.
II. Standard of Review.
“We review rulings on motions to dismiss under
III. Analysis.
We must decide whether the defendants are entitled to a dismissal with prejudice because the February 20 letter was not signed under oath by Dr. Mark within the sixty-day statutory deadline as required under
argues that Dr. Mark‘s sworn declaration served on June 2 cured any statutory violation.
We begin with the text of the statute.
147.140. Expert witness--certificate of merit affidavit
1. a. In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practiсe of that profession or occupation or in patient care, which includes a cause of action for which expert testimony is necessary to establish a prima facie case, the plaintiff shall, prior to the commencement of discovery in the case and within sixty days of the defendant‘s answer, serve upon the defendant a certificate of merit affidavit signed by an expert witness with respect to the issue of standard of care and an alleged breach of the standard of care. The expert witness must meet the qualifying standards of section 147.139.
b. A certificate of merit affidavit must be signed by the expert witness and certify the purpose for calling the expert witness by providing under the oath of the expert witness all of the following:
(1) The expert witness‘s statement of familiarity with the applicable standard of care.
(2) The expert witness‘s statement that the standard of care was breached by the health care provider named in the petition.
c. A plaintiff shall serve a separate certificate of merit affidavit on each defendant named in the petition.
2. An expert witness‘s certificate of merit affidavit does not preclude additional discovery and supplementation of the expert witness‘s opinions in accordance with the rules of civil procedure.
3. The parties shall comply with the requirements of section 668.11 and all other applicable law governing certification and disclosure of expert witnesses.
4. The parties by agreement or the court for good cause shown and in response to a motion filed prior to the expiration of the time limits specified in subsection 1 may provide for extensions of the time limits. Good cause shall include but not be limited to the inability to timely obtain the plaintiff‘s medical records from health care providers when requested prior to filing the petition.
5. If the plaintiff is acting pro se, the plaintiff shall have the expert witness sign the certificate of merit affidavit or answers to interrogatories referred to in this section and the plaintiff shall be bound by those provisions as if represented by an attorney.
6. Failure to substantially comply with subsection 1 shall result, upon motion, in dismissal with prejudice of each cause of
action as to which expert witness testimony is necessary to establish a prima facie case. 7. For purposes of this section, “health care provider” means the same as defined in section 147.136A.
(Emphases added.) We reiterate that
We next address whether Dr. Mark‘s letter with her unsworn signature substantially complied with the certificate of merit statute. See
to sign under oath is necessary to ensure the reasonable objectives of
“We reiterate
In Estate of Fahrmann, we approvingly cited Tunia v. St. Francis Hospital, 832 A.2d 936 (N.J. Super. Ct. App. Div. 2003), for the proposition that “counsel‘s signature did not substantially comply with section 147.140(1)‘s requirement that the expert sign the certificate of merit affidavit under oath.” Est. of Fahrmann, 999 N.W.2d at 288. In Tunia, the medical experts failed to sign their affidavits under oath as required by New Jersey‘s certificate of merit statute. 832 A.2d at 939. The appellate court looked at the general requirement that the report must be in the form of an affidavit. Id. The Tunia court defined an affidavit as a “declaration . . . written down and sworn to by the declarant before an officer authorized to administer oaths.” Id. (omissions in original) (quoting Affidavit, Black‘s Law Dictionary (7th ed. 1999)). “[I]n order to make an affidavit, there must be present at the same time the officer, the affiant,
the notaries public [we]re in the form of acknowledgments, . . . rather than a jurat, evidencing that the notary placed the doctor under oath at the time the document was executed.” Id. The Tunia court determined that “the failure to place a declarant under oath” is not “a mere ‘technical’ deficiency,” rather “it goes to the very nature of what an affidavit is.” Id. The court concluded that the exрerts’ unsworn signatures did not substantially comply with the statute. Id. We reach the same conclusion today.3
The Iowa Code defines an affidavit as “a written declaration made under oath, without notice to the adverse party, before any person authorized to administer oaths within or without the state.”
Another statute,
and emphasizes the obligation to be truthful.” Id.
A contrary holding would undermine many Iowa statutes requiring sworn statements or verifications. If we held a signed but unsworn letter substantially complied with
The Iowa Court of Appeals rejected a substantial compliance argument in In re Prop. Seized for Forfeiture from Foley, No. 16–1676, 2017 WL 3525221 (Iowa Ct. App. Aug. 16, 2017). The defendant contested the forfeiture of cash seized from him after he eluded pоlice officers. Id. at *1.
“This is an important requirement because the ‘under penalty of perjury’ language, like the administration of an oath by an official, acts to bind the conscience of the person and emphasizes the obligation to be truthful.” State v. Carter, 618 N.W.2d 374, 378 (Iowa 2000). If Foley had included some language in his answer that indicated an effort at compliance with the penalty-of-perjury provision, we could evaluate whether such language substantially complied with the statutory requirement. But, without some language showing an effort at compliance with the ‘under penalty of perjury’ requirement, the answer is fundamentally flawed. If we were to accept Foley‘s answer without a signature under penalty of perjury, we would effectively exempt Foley from possible prosecution for perjury while claimants who comply with section 809A.13(4) would remain subject to possible prosecution for perjury.
Id. at *2. This reasoning applies equally to
We do not question Dr. Mark‘s veracity. But we do not second guess the legislature‘s choice to require certificates of merit to be signed under oath. See
Our analysis is supported by cases from other jurisdictions addressing certificate of merit statutes requiring medical experts to sign under oath. See, e.g., Sood v. Smeigh, 578 S.E.2d 158, 161 (Ga. Ct. App. 2003) (“However, this affidavit was not sworn to and executed in the presence of a notary public prior to filing the complaint, which rendered the affidavit fatally defective ab initio for absence of a notary public swearing the witness in pеrson.“); Holmes v. Mich.
Cap. Med. Ctr., 620 N.W.2d 319, 324 (Mich. Ct. App. 2000) (per curiam) (“Because no indication exists that the doctor confirmed the document‘s contents by oath or affirmation before a person authorized to issue the oath or affirmation, the document does not qualify as a proper affidavit.“); Tschakert v. Fairview Health Servs., No. A10–611, 2011 WL 206149, at *3 (Minn. Ct. App. Jan. 25, 2011) (“Here, appellant submitted an unsworn letter signed by Dr. Lopez; as it was not sworn to by Dr. Lopez ‘before an officer authorized to administer oaths,’ the letter does not constitute an affidavit. . . . Thus, the district court properly rejected appellants’ letter . . . because it was technically
Finally, we address Miller‘s argument that Dr. Mark‘s subsequent report signed under penalty of perjury cured the violation of
sworn certificate of merit affidavit served forty-two days after the statutory deadline did not cure the violation. See 999 N.W.2d at 287–88; see also Morrow v. United States, No. 21–cv–1003–MAR, 2021 WL 4347682, at *1, *5 (N.D. Iowa July 28, 2021) (holding certificate of merit filed sixteen days late did not substantially comply with
IV. Disposition.
For those reasons, we reverse the district court ruling that denied the defendants’ dispositive motions, and we remand for an order dismissing this case with prejudice.
REVERSED AND REMANDED.