ESTATE OF ROBERTA ANN BUTTERFIELD by BRADLEY DEAN BUTTERFIELD and DEANNE MARIE ROGERS, Co-Administrators, Appellants, vs. CHAUTAUQUA GUEST HOME, INC. d/b/a CHAUTAUQUA GUEST HOME #3 and CHAUTAUQUA GUEST HOMES, Appellees.
No. 22–0101
IN THE SUPREME COURT OF IOWA
Submitted January 18, 2023—Filed March 17, 2023
Amended March 21, 2023
Christensen, C.J.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland, Judge.
The supreme court reviews a court of appeals decision affirming the dismissal of a medical malpractice lawsuit with prejudice for failing to comply with the
Christensen, C.J., delivered the opinion of the court, in which Waterman, Mansfield, McDonald, and Oxley, JJ., joined. May, J., filed an opinion concurring in part and dissenting in part, in which McDermott, J., joined.
Jeffrey A. Pitman (argued) of Pitman, Kalkhoff, Sicula & Dentice, S.C., Milwaukee, Wisconsin, and John T. Hemminger of Law Offices of John T. Hemminger, Des Moines, for appellant.
Joseph D. Thornton (argued) of Smith Peterson Law Firm, LLP, Council Bluffs, for appellees.
In this medical malpractice case, a decedent‘s estate brings suit against a nursing home, alleging various omissions and failures. Although the estate filed suit in a timely manner, it did not serve a certificate of merit affidavit on the defendants. Consequently, the nursing home moved to dismiss the claims against it with prejudice, as provided under
Upon review, we reverse the court of appeals in part and conclude the certificate of merit requirement does not apply to the plaintiffs who need experts solely for causation. With respect to the remaining issues on appeal, we let the court of appeals decision stand. Because it is not clear which of the plaintiff‘s claims needed an expert only to establish causation and were therefore not subject to the certificate of merit requirement, we also remand this case to the district court to determine which of the plaintiff‘s claims survive the failure to file the certificate of merit.
I. Background Facts and Proceedings.
The well-pleaded facts of this case center on injuries that Roberta Butterfield allegedly sustained in the care of Chautauqua Guest Home, Inc., a skilled nursing facility. Butterfield resided at Chautauqua, starting in October 26, 2017. On May 19, 2018, almost exactly one year before her death, Butterfield‘s leg popped while Chautauqua caretakers were transferring her from the bathroom to a wheelchair. Six days later, Chautauqua transferred Butterfield to the hospital, where she was diagnosed with a left hip fracture. The fracture required surgery, which was performed on May 27.
Butterfield returned to Chautauqua on June 1. At that time, she did not suffer from any pressure injuries or skin problems. For the next several months, Butterfield spent a significant amount of time in
About a year later, on April 20, 2020, Butterfield‘s estate (the Estate) filed the medical malpractice lawsuit on appeal here. Chautauqua answered on May 21. The parties agreed to a discovery plan on June 15, which the district court approved on June 16. The parties submitted initial disclosures during July and continued conducting discovery for the next year. Then, on July 16, 2021, Chautauqua filed a motion to dismiss with prejudice pursuant to
II. Standard of Review.
Under
III. Analysis.
In this case, the Estate principally argues that its petition should not have been dismissed because
A. The New Requirements in Iowa Code Section 147.140.
Before our analysis of the merits, we review the pertinent provisions of section 147.140.
According to these requirements, plaintiffs must serve the defendant with a certificate of merit, which is “an affidavit signed by an expert witness stating the appropriate standard of care and its alleged breach.” Morrow v. United States, 47 F.4th 700, 702–03 (8th Cir. 2022); see also
Importantly, noncompliance carries a “harsh” consequence. McHugh v. Smith, 966 N.W.2d 285, 289 (Iowa Ct. App. 2021).
We have previously explained that section 147.140 “is meant to end cases early (sixty days after the answer) when expert testimony is required.” Struck, 973 N.W.2d at 542. The statute is also designed “to ‘identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly,’ ” id. (quoting Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006)), and “deter . . . frivolous actions . . . to thereby reduce the cost of medical malpractice litigation and medical malpractice insurance premiums,” id. (quoting Rabinovich v. Maimonides Med. Ctr., 113 N.Y.S.3d 198, 201 (App. Div. 2019)).
B. Whether a Certificate of Merit Affidavit Is Required in This Case.
The Estate‘s primary argument is that the certificate of merit requirement does not apply in this case because an expert is not necessary to establish the elements of its prima facie case. Chautauqua, in turn, contends that all elements of the Estate‘s claims depend on medical judgment and therefore require experts, triggering the certificate of merit requirement.
1. Relevant principles of statutory interpretation.
“As with all cases involving statutory interpretation, we start with the language of the statute to determine what the statute means.” Beverage v. Alcoa, Inc., 975 N.W.2d 670, 680 (Iowa 2022). When a statute‘s text and meaning is clear, “we will not search for a meaning beyond the express terms of the statute or resort to rules of construction.” Com. Bank v. McGowen, 956 N.W.2d 128, 133 (Iowa 2021) (quoting In re Est. of Voss, 553 N.W.2d 878, 880 (Iowa 1996)). “However, ‘if reasonable minds could differ or be uncertain as to the meaning of the statute’ based on the context of the statute, the statute is ambiguous and requires us to rely on principles of statutory construction to resolve the ambiguity.” State v. Coleman, 907 N.W.2d 124, 135 (Iowa 2018) (quoting State v. Iowa Dist. Ct., 889 N.W.2d 467, 471 (Iowa 2017)). Thus, “[t]he first step in our statutory interpretation analysis is to determine whether the statute is ambiguous.” State v. Zacarias, 958 N.W.2d 573, 581 (Iowa 2021) (quoting State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020)). But a statute is not ambiguous merely because two litigants disagree about its meaning. Carreras v. Iowa Dep‘t of Transp., Motor Vehicle Div., 977 N.W.2d 438, 456 (Iowa 2022) (McDermott, J., concurring in part and dissenting in part) (“Declaring ambiguity whenever skilled lawyers offer divergent meanings for phrases would unnecessarily launch us into ambiguity-resolving canons in most of our cases.“). “Ambiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes.” The Sherwin–Williams Co. v. Iowa Dep‘t of Revenue, 789 N.W.2d 417, 425 (Iowa 2010) (quoting Midwest Auto. III, LLC v. Iowa Dep‘t of Transp., 646 N.W.2d 417, 425 (Iowa 2002)).
2. Section 147.140(1) is ambiguous.
In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice 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 . . . 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.
To be clear, this ambiguity exists in the statute‘s context. See Iowa Ins. Inst. v. Core Grp. of the Iowa Ass‘n for Just., 867 N.W.2d 58, 72 (Iowa 2015) (“[E]ven if the meaning of words might seem clear on their face, their context can create ambiguity.“). The statute is ambiguous because of an inconsistency between the text that triggers the certificate of merit requirement1 and the text that explains what must be included in the certificate of merit.2 In many cases, we have identified statutory text that, although clear in isolation, becomes ambiguous in a statute‘s broader context. See Iowa Ins. Inst., 867 N.W.2d at 72–73 (finding the phrase “all information” ambiguous when taking surrounding statutory subsections into account); U.S. Bank Nat. Ass‘n v. Lamb, 874 N.W.2d 112, 117 (2016) (deciding the phrase “all liens” is “sufficiently ambiguous” in light of the phrase‘s location and the fact the statute appeared to operate narrowly). Such is the case here.
3. Resolving the ambiguity.
We use the tools of statutory construction to construe ambiguous statutes. State v. Mathias, 936 N.W.2d 222, 227 (Iowa 2019); see also
In this case, legislative history is particularly helpful. There were three drafts of bills that contained the certificate of merit requirement: two study bills and a house file bill. See S.S.B. 1087, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.S.B. 105, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.F. 487, 87th G.A. sess., § 3(1)(a), (b)(4) (Iowa 2017). The text of each of the three bills requires that the certificate of merit attest to the standard of care, breach, or causation. The relevant explanation section of each bill confirms, saying the proposed language would require plaintiffs to secure certificates of merit that speak to the standard of care, breach, and causation. The enacted language, however, says nothing about causation. See 2017 Iowa Acts ch. 107, § 4 (codified at
The fact that the legislature removed the word “causation” tells us a great deal. We infer that the legislature did not intend the certificate of merit requirement in
Another tool of statutory construction is the consequences of a particular construction.
We find support for our conclusion when we compare section 147.140 to similar statutes in other states. As we explained in Struck v. Mercy Health Services-Iowa Corp., “At least twenty-eight other states have enacted certificate or affidavit of merit statutes.” 973 N.W.2d at 541. Like Iowa‘s section 147.140, some states require certificates of merit that attest to just the standard of care and breach. See, e.g.,
4. The Estate may need expert testimony to establish the standard of care and breach, which would trigger the certificate of merit affidavit requirement.
“It is well settled that expert testimony is required to prove professional negligence claims against healthcare providers.” Struck, 973 N.W.2d at 539. “Ordinarily, evidence of the applicable standard of care—and its breach—must be furnished by an expert.” Id. (quoting Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)). Yet we have recognized some professional breaches are so blatant that expert testimony is not required for them. Id. at 539, n.4. These are breaches in which “the physician‘s lack of care is so obvious as to be within the comprehension of a lay[person] and requires only common knowledge and experience to understand.” Id. (alteration in original) (quoting Oswald, 453 N.W.2d at 636). Essentially, expert testimony about the standard of care and breach is not necessary when “the rule of res ipsa loquitur applies,” such as “where a sponge, gauze, an instrument, or [a] needle has been left in the body.” Whetstine v. Moravec, 291 N.W. 425, 436 (Iowa 1940); see also Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989) (“If a doctor operates on the wrong patient or amputates the wrong limb, a plaintiff would not have to introduce expert testimony to establish that the doctor was negligent.“).
But there is another separate set of circumstances in which expert testimony about the standard of care and breach is not required. Medical professionals frequently provide “nonmedical, administrative, ministerial, or routine care” Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101 (Iowa 1971). For those types of care, expert testimony about the standard of care and breach is not needed because medical professionals are obliged to offer merely “such reasonable care for patients as their known mental and physical condition may require.” Id. at 102. We have held that nonmedical or routine care includes helping patients shower, see id., and properly repositioning patients to prevent pressure injuries (such as bedsores), see Thompson v. Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000). In contrast, we have also held that expert testimony is required to ascertain the standard
All in all, we have distilled these principles into the following test:
[I]f all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation, [expert testimony is not required].
Struck, 973 N.W.2d 533 at 543 (alterations in original) (quoting Thompson, 604 N.W.2d at 646).
In this case, we remand to the district court the question of whether expert testimony is necessary with respect to the issue of standard of care and breach. The Estate‘s petition presents a litany of failures on the part of Chautauqua, and Chautauqua argues in response that the Estate needs experts for all the elements of its claims. Because the Estate never served a certificate of merit, the district court should dismiss with prejudice any allegations that require expert testimony regarding standard of care and breach. For the reasons stated, the need for expert testimony about causation does not trigger the certificate of merit affidavit requirement.
IV. Conclusion.
For the foregoing reasons, we reverse the court of appeals decision in part. We reverse the district court judgment and remand the case, and we need not address the remaining issues on appeal.
DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED IN PART AND REMANDED.
Waterman, Mansfield, McDonald, and Oxley, JJ., join this opinion. May, J., files an opinion concurring in part and dissenting in part, in which McDermott, J., joins.
In re Estate of Butterfield
#22–0101
MAY, Justice
MAY, Justice (concurring in part and dissenting in part).
If a plaintiff needs an expert to establish “a prima facie case” of medical negligence,
I. An Alternative Approach to Section 147.140.
We should find a statute‘s meaning in the “text of the statute,” the “words chosen by the legislature.” State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017) (quoting State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)). Here are the relevant words of
In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice 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.
(Emphasis added.)
In Struck v. Mercy Health Services-Iowa Corp., 973 N.W.2d 533 (Iowa 2022), we parsed these words and correctly determined their meanings. “[A] certificate of merit is required,” we said, “when a plaintiff pleads (1) an ‘action for personal injury or wrongful death,’ (2) ‘against a health care provider,’ (3) which is ‘based upon the alleged negligence in the practice of that profession or occupation or in patient care,’ and (4) ‘includes a cause of action for which expert testimony is necessary to establish a prima facie case.’ ” Id. at 540 (quoting
Here, it is undisputed that Struck‘s first three criteria are met. No one disputes that the Estate has pleaded “(1) an ‘action for personal injury or wrongful death,’ (2) ‘against a health care provider,’ (3) which is ‘based upon the alleged negligence in the practice of that profession or occupation or in patient care.’ ” Id. (quoting
Again, the starting place is Struck. There we said that to establish a “prima facie case” of medical negligence, “a plaintiff must produce evidence that (1) establishes the applicable standard of care, (2) demonstrates a violation of this standard, and (3) develops a causal relationship between the violation and the injury sustained.” Id. at 539 (emphasis added) (quoting Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)). So, a medical-negligence plaintiff (like the Estate) cannot establish a prima facie case without establishing causation. Id. at 540; see, e.g., Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 337 (Iowa 2020) (agreeing that evidence “failed to establish the causation element of Susies’ prima facie case” of medical malpractice). And so, if expert testimony is necessary to establish causation, then expert testimony is necessary to establish a prima facie case.
The Estate needs expert testimony to establish causation. Both the district court and the court of appeals found that this is true.3 The majority does not dispute those findings. Nor do I.
Because the Estate needs expert testimony to establish causation, “expert testimony is necessary” for the Estate “to establish a prima facie case.”
required to dismiss the Estate‘s case,
II. Is It Really that Simple?
Although it‘s possible that I‘ve overlooked something, I see no reason why we shouldn‘t follow the straight-forward approach outlined above. I see no valid path to the contrary conclusion that even though the statute plainly requires a certificate of merit whenever a plaintiff needs an expert to establish a prima facie case, and even though a prima facie case most certainly includes causation, and even though the Estate needs an expert to establish causation, the Estate somehow didn‘t need to serve a certificate of merit.
The only option, I think, would be to say that a prima facie case doesn‘t require causation. But no one thinks that‘s true. Just last year, our unanimous Struck opinion said that—in the context of section 147.140—a prima facie case of medical negligence includes causation. Struck, 973 N.W.2d at 538–39. And Struck was absolutely right. It is blackletter that when a statute includes a legal term that has an established legal meaning in a specific legal context, we give that term its established legal meaning. E.g. Beverage v. Alcoa, Inc., 975 N.W.2d 670, 682 (Iowa 2022) (citing authorities). Section 147.140 deals with a very specific legal context: medical negligence lawsuits. In the context of medical negligence lawsuits, the term “prima facie case” has only one meaning—and it is exceptionally well-established. It is the same three-element meaning that Struck used. And causation is always one of those three elements. See Struck, 973 N.W.2d at 538–39 (stating that a prima facie case of medical negligence requires evidence of three elements: (1) the standard of care, (2) a violation of the standard of care, and (3) a causal relationship between a violation of the standard of care and the injury sustained); Susie, 942 N.W.2d at 337 (same); Eisenhauer ex rel. Conservatorship of T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 9 (Iowa 2019) (same); Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 401 (Iowa 2017) (same); Lobberecht v. Chendrasekhar, 744 N.W.2d 104, 108 (Iowa 2008) (same); Peppmeier v. Murphy, 708 N.W.2d 57, 61–62 (Iowa 2005) (same); Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (en banc) (same); Graeve v. Cherny, 580 N.W.2d 800, 801–02 (Iowa 1998) (same); Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992) (same); Oswald, 453 N.W.2d at 635 (same); Cole v. Taylor, 301 N.W.2d 766, 767 (Iowa 1981) (same); Daboll v. Hoden, 222 N.W.2d 727, 734 (Iowa 1974) (same); Zaw v. Birusingh, 974 N.W.2d 140, 160 (Iowa Ct. App. 2021) (same); Hill v. McCartney, 590 N.W.2d 52, 56 (Iowa Ct. App. 1998) (same); Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998) (same).4
Because the Estate needed an expert to establish causation, the Estate needed an expert to establish a prima facie case. This triggered the certificate of merit requirement, which the Estate did not meet. It really is that simple.
III. The Majority‘s Approach.
The majority‘s approach offers no viable escape from this conclusion. Before diving
of my main differences with the majority is their focus on the required contents of a certificate of merit. This case isn‘t about the contents of a certificate of merit. There was no certificate. The Estate didn‘t serve one. So there are no contents to evaluate. Rather, our only task here is to decide whether the Estate was required to serve any certificate of merit at all. If no certificate was required, dismissal was improper, and we should reverse. If any certificate was required, then dismissal was proper, and we should affirm. Because I think a certificate was required, I think we should affirm.
With that as background, I turn to the majority‘s specific points. In brief summary, the majority contends that (1) because the statute is ambiguous, we can look beyond the statutory text to (2) legislative history and (3) a reasonableness inquiry, (4) all of which suggest that a certificate of merit was not required in this case. I respectfully disagree with each of these points.5
A. Is the Statute Ambiguous About When a Certificate of Merit Affidavit Is Required?
I start with the majority‘s central premise—that section 147.140 is ambiguous about when a certificate of merit is required. In the majority‘s view, this ambiguity opens the door to reliance on legislative history and other matters outside of the statute‘s text.
I note, though, that the Estate made no ambiguity argument in its appellate briefs. And the court of appeals decided the Estate‘s appeal without oral argument. So the court of appeals never heard any arguments about ambiguity. Rather, the Estate first mentioned ambiguity in its petition for further review. But “[w]e generally will not consider issues raised for the first time . . . in an application for further review.” State v. Shackford, 952 N.W.2d 141, 147–48 (Iowa 2020). I see no reason to make an exception.
In any event, I can find no meaningful ambiguity here. Like the majority, I think “a statute is not ambiguous merely because two litigants disagree about its meaning.” And I agree with Justice McDermott that “[d]eclaring ambiguity whenever skilled lawyers offer divergent meanings for phrases would unnecessarily launch us into ambiguity-resolving canons in most of our cases.” Carreras v. Iowa Dep‘t of Transp., Motor Vehicle Div., 977 N.W.2d 438, 456 (Iowa 2022) (McDermott, J., concurring in part and dissenting in part). Instead, we should limit declarations of ambiguity to situations in which the operative statutory words are “susceptible to more than one reasonable meaning.” State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997); see State v. Mathias, 936 N.W.2d 222, 228 (Iowa 2019) (finding ambiguity where language had “multiple reasonable meanings“).
That‘s not the case here. As the statute makes clear—and as we verified in Struck—“a certificate of merit is required” whenever the petition ” ‘includes a cause of action for which expert testimony is necessary to establish a prima facie case.’ ” Struck, 973 N.W.2d at 540 (quoting
The majority deploys two counter-arguments. First, the majority suggests that there is ambiguity because “the statute does not explain whether a certificate of merit is required” when a plaintiff (like the Estate) will need expert testimony to establish one essential part of “a prima facie case“—causation—but not to establish other parts—standard of care and breach. I respectfully disagree. The statute unambiguously requires a certificate of merit whenever expert testimony is needed to establish “a prima facie case.” And just as a pizza needs a crust, a “prima facie case” requires causation. So if expert testimony is needed to establish causation, then expert testimony is needed to establish “a prima facie case,” and the certificate is required. It is required regardless of whether expert testimony will also be needed for other issues, like standard of care, breach, damages, or anything else.
Next the majority argues that there is ambiguity because “one part” of
1. a. In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice 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.
Let‘s start with the trigger conditions—the circumstances when a certificate is required—shown in the italicized text. As we said in Struck, this text clearly requires a certificate whenever there‘s a claim “for which expert testimony is necessary to establish a prima facie case.” 943 N.W.2d at 540 (quoting
Next, let‘s look at the content requirements—the topics that a certificate must address—shown in the bold text. This text is also clear: a certificate must address the ”standard of care and an alleged breach of the standard of care.”
Now, if we read these provisions together, we can easily understand the statute‘s meaning. A certificate is required if a plaintiff pleads a claim “for which expert testimony is necessary to establish a prima facie case.” A certificate must contain expert statements about the ”standard of care” and the ”alleged breach of the standard of care.” There‘s no uncertainty about (1) when a certificate is required or
Of course, I understand the majority‘s curiosity about why the legislature would (1) require a certificate for all cases in which expert testimony is necessary to establish a prima facie case, which includes standard of care, breach, and causation; but (2) only require that the certificate address standard of care and breach. While this asymmetry is interesting, though, it is not outside the range of reasonable options from which our legislature could properly choose. (More on this later.) In any event, it doesn‘t create any ambiguity about when a certificate is required. It doesn‘t create multiple reasonable meanings for “prima facie case,” the unambiguous trigger phrase. It gives no reason to think that causation is not a part of “prima facie case.” It provides no basis to conclude that “prima facie case” could mean only “standard of care” and “breach.” Indeed, the statute‘s asymmetry confirms that “prima facie case” means something different than just “standard of care” and “breach.” Otherwise, there would have been no reason for the legislature to use “prima facie case” near the start of
B. Does Legislative History Require a Different Answer?
I also respectfully disagree with the majority‘s reliance on legislative history to support interpretations that contradict the plain meaning of the enacted text. See, e.g., Koehler v. Hill, 14 N.W. 738, 767 (Iowa 1883) (Beck, J., dissenting) (“The enrolled statute, being the final expression of the legislative will, overcomes all journal entries which contradict it.“). “It is our duty to accept the law as the legislative body enacts it.” Holland v. State, 115 N.W.2d 161, 164 (Iowa 1962). Like Justice McDermott, I worry that focusing on legislative history can easily “divert[] us” from our duty to give “effect to the text that lawmakers have adopted and that the people are entitled to rely on.” State v. Davison, 973 N.W.2d 276, 293 (Iowa 2022) (McDermott, J., concurring specially).
In any event, the available history contradicts the majority‘s suggestion that “the legislature did not intend the certificate of merit requirement . . . to reach questions of causation.” To help explain why this is true, I have created the table below. In the left column, you can see the unenacted bill language on which the Estate relies. In the right column, you can see the enacted text of
| | Enacted Language in Section 147.140(1)(a)7 |
|---|---|
| In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice of that profession or occupation or in patient care, including a cause of action for which expert testimony is necessary to establish a prima facie case, the plaintiff shall, within ninety days of the defendant‘s answer, serve upon the defendant a certificate of merit affidavit for each expert witness listed pursuant to section 668.11 who will testify with respect to the issues of standard of care, breach of standard of care, or causation. | In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice 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. |
By comparing these texts, we can see that there certainly were changes in the content requirements between the unenacted bills and the enacted statute. The unenacted bills would have required certificates to address three topics: “standard of care,” “breach of standard of care,” and “causation.” The enacted statute only requires a certificate to address two topics: “standard of care” and “an alleged breach of the standard of care.”
But there were no similar changes to the triggering language, shown in italics. In the unenacted bills and the enacted statute, the triggering language remained almost the same. Both versions use the same phrase, “prima facie case,” which necessarily includes causation. This confirms that the legislature wanted the certificate of merit requirement to apply whenever a plaintiff needs an expert to establish causation.
C. What About Reasonableness?
Finally, I turn to the majority‘s concern that “it makes no sense” for the legislature to require an expert‘s certification that there has been a breach of the standard of care if it appears that—at trial—the plaintiff will only need expert testimony to establish causation. I respectfully disagree.
First, it goes too far to say that the legislative scheme “makes no sense.” One obvious purpose of section 147.140 is to dispose of meritless suits early. And there is a reasonable relationship between (1) the goal of disposing of meritless suits early and (2) requiring an expert‘s confirmation that a standard of care was breached. That‘s true even if—at trial—the plaintiff will only need expert testimony on causation. If a plaintiff‘s claims are complex enough that expert testimony will be needed to establish causation—that is, a causal link between a breach of a standard of care and a claimed injury—it‘s not unreasonable to want an expert to certify that there really was a breach of a standard of care.
Moreover, even if section 147.140 seems like an imperfect product of a messy legislative process, that doesn‘t mean that we shouldn‘t give effect to its words. See, e.g., In re BISYS Grp. Inc. Derivative Action, 396 F. Supp. 2d 463, 464 (S.D.N.Y. 2005) (“Congress . . . alone is charged with making the close judgments and sometimes messy compromises inherent in the legislative
“In a democracy, the power to make the law rests with those chosen by the people.’ ” King v. Burwell, 135 S. Ct. 2480, 2496 (2015). Even if we dislike the law or think some other approach might be a better policy, “[t]he role of [a court] is to apply the statute as it is written.” Burrage v. United States, 134 S. Ct. 881, 892 (2014) . . . “If changes in a law are desirable from a standpoint of policy or mere practicality, it is for the legislature to enact them, not for the court . . . .” U.S. Jaycees v. Iowa Civil Rights Comm‘n, 427 N.W.2d 450, 455 (Iowa 1988).
In re Prop. Seized for Forfeiture from Thao, No. 14–1936, 2016 WL 1130280, at *9 (Iowa Ct. App. Mar. 23, 2016) (alterations and second omission in original).
IV. Conclusion.
The unambiguous words of
McDermott, J., joins this concurrence in part and dissent in part.
Notes
We do not believe that understanding the causation behind a subtrochanteric intertrochanteric hip fracture, an ischial pressure injury, or the death of a woman with a myriad of underlying health conditions is within the common knowledge of a non-medically trained person. Therefore, expert witness testimony was needed with respect to the element of causation . . . .