JACQUELINE STRUCK, Appellant, vs. MERCY HEALTH SERVICES-IOWA CORP. a/k/a MERCY MEDICAL CENTER-SIOUX CITY, RODNEY J. DEAN, ALBERT OKINE, and EILEEN MIDDLETON, Appellees.
No. 20-1228
IN THE SUPREME COURT OF IOWA
April 22, 2022
Submitted March 24, 2022
Appeal from the Iowa District Court for Woodbury County, Zachary Hindman, J., Judge.
Medical defendants seek further review of court of appeals decision reinstating negligence claims in action dismissed by district court for noncompliance with certificate of merit requirement in
Waterman, J., delivered the opinion of the court, in which all justices joined.
Frederick T. Harris of Lamson Dugan & Murray, LLP, Omaha, Nebraska, for appellee Mercy Health Services-Iowa Corp. Sioux City a/k/a Mercy Medical Center.
John C. Gray of Heidman Law Firm, P.L.L.C., Sioux City, for appellees Rodney J. Dean, M.D., Albert Okine, P.A., and Eileen Middleton, P.A.
This appeal presents our first opportunity to address the certificate of merit requirement in On our review, we hold that the district court correctly dismissed the petition under We accept as true the well-pleaded facts alleged in the plaintiff‘s petition. On January 18, 2018, Plaintiff Jaqueline Struck, age fifty-seven, was admitted to Mercy Medical Center (Mercy) in Sioux City to treat her prolonged dizziness, headaches, and unsteadiness when upright or standing. Her physicians adjusted her medication in the hospital but did not impose restraints or other safety measures to keep her from standing unattended. On January 25, Struck stood up, fell, and struck her chin on the floor, resulting in a laceration. Nearly two years later, on January 24, 2020, Struck brought this civil action against Mercy and several physicians, physician assistants, and a nurse practitioner involved in her medical care. She alleged she had a “healthcare provider-patient relationship” with the named defendants and that her personal injuries resulted from their “professional negligence” when providing her “healthcare services,” including giving her “medications that were contraindicated with the medications she was already taking.” Her petition then alleged: 16. As a result of the physician-patient relationship between Dr. Rodney J. Dean, Albert Okine, PA, Jeremy Vande Zande, MD, Robbie Robinson, NP, Eileen Middleton, PA and Jacqueline Struck, Dr. Rodney Dean, Albert Okine, PA, Jeremy Vande Zande., MD, Robbie Robinson, NP and Eileen Middleton, PA owed a duty to Jacqueline Struck to possess and use the care, skill and knowledge 17. The Defendants breached their duty to Jacqueline Struck to possess and use, care, skill and knowledge ordinarily possessed and used under like circumstances by other members of their profession engaged in a similar practice, because they negligently: A. Failed to properly supervise Jacqueline Struck considering the medications she was on and the risks they posed for dizziness; B. Failed to take steps to ensure Plaintiff was safe from falls and injury; and C. Were negligent in other ways not presently known to the Plaintiff. Struck‘s petition included a claim against the hospital for negligent hiring and retention of the individual defendants: 19. Defendant Mercy Medical Center was negligent in hiring and retaining Rodney Dean, MD, Albert Okine, PA, Jeremy Vande Zande, MD, Robbie Robinson, NP and Eileen Middleton, PA and non-party staff who were individually and jointly responsible for her care and treatment. 20. The professional negligence of Defendants Mercy Medical Center, Rodney Dean, MD, Albert Okine, PA, Jeremy Vande Zande, MD, Robbie Robinson, NP and Eileen Middleton, PA was a violation of an acceptable standard of care. All the named defendants are healthcare providers licensed under The defendants filed answers followed by motions to dismiss pursuant to After a hearing, the district court granted the motions to dismiss and denied Struck‘s request for an extension of the time to file a certificate of merit. The district court determined that On appeal, Struck concedes that the district court properly dismissed the professional negligence claims pursuant to “We review a district court‘s ruling on a motion to dismiss for the correction of errors at law.” Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 298 (Iowa 2020) (quoting Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014)). “For purposes of reviewing a ruling on a motion to dismiss, we accept as true the petition‘s well-pleaded factual allegations, but not its legal conclusions.” Id. (quoting Shumate, 846 N.W.2d at 507). “[W]e will affirm a dismissal only if the petition shows no right of recovery under any state of facts.” Id. (alteration in original) (quoting Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa 2001) (en banc)). “We construe the petition in ‘its most favorable light, resolving all doubts and ambiguities in [the plaintiff‘s] favor.’ ” Id. at 298-99 (alteration in original) (quoting Schreiner v. Scoville, 410 N.W.2d 679, 680 (Iowa 1987)). Yet we recognize that plaintiffs may effectively plead themselves out of court. See id. at 299, 306; Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 575 (Iowa 2018). We review rulings on statutory interpretation for correction of errors at law. Goche v. WMG, L.C., 970 N.W.2d 860, 863 (Iowa 2022). Our court has not yet interpreted or applied It is well settled that expert testimony is required to prove professional negligence claims against healthcare providers. “To establish a prima facie case of medical malpractice, 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.” Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). “Ordinarily, evidence of the applicable standard of care—and its breach—must be furnished by an expert.” Id.;4 see also Susie v. Fam. Health Care of Siouxland, P.L.C., 942 As the court of appeals recognized, Struck concedes that the district court correctly ruled that Plaintiff did not preserve arguments pertaining to negligent supervision, premises liability, and general negligence. Plaintiff did not raise these issues before the district court and the district court did not decide . . . these issues. As such, Plaintiff cannot raise these issues on appeal. We agree. The court of appeals did not address error preservation and decided this unpreserved issue. But because the issue was fully briefed on appeal and decided by the court of appeals, we exercise our discretion to clarify the scope of the new statute. B. Section 147.140 Required Dismissal of Struck‘s Claims Against Mercy. In our view, the district court correctly ruled that 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. A contrary holding would undermine the legislative goal to enable healthcare providers to quickly dismiss professional negligence claims that are not supported by the requisite expert testimony. Those goals are further served by [t]he common denominator is that all of the statutes, to one degree or another, require the plaintiff‘s attorney to do what good practice and economics dictate: perform the due diligence necessary to determine the claim is meritorious before instituting litigation. Unless a case has merit and a deviation from standards of care can be proven through a competent expert, it is senseless to commence a medical malpractice action. Id. As the Pennsylvania Supreme Court recognized, the certificate of merit requirement serves to “identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly.” Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006); see also Rabinovich v. Maimonides Med. Ctr., 179 A.D.3d 88, 91 (N.Y. App. Div. 2019) (noting the purpose of New York‘s certificate of merit statute “is to deter the commencement of frivolous actions by counsel on behalf of their clients, and to thereby reduce the cost of medical malpractice litigation and medical malpractice insurance premiums“). The Iowa legislature enacted a comparable certificate of merit statute presumably to further the same goals. The court of appeals determined that Struck‘s “surviving” negligence claims should be “fleshed out” in further proceedings on remand to determine whether expert testimony is required. That approach violates the command of The court of appeals relied on precedent allowing some slip-and-fall claims to proceed against a hospital without expert testimony when routine care is at issue. See, e.g., Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 102 (Iowa 1971). “The character of a particular activity of a hospital—whether professional, on the one hand, or nonmedical, administrative, ministerial, or routine care, on the other—is determined by the nature of the activity itself, not by its purpose.” Id. In Kastler v. Iowa Methodist Hospital, the plaintiff “from childhood . . . suffered from spells of headaches, rapid heartbeat, difficult breathing, and dizziness, followed by fainting.” Id. at 99. “The spells grew worse after she became an adult,” and she would become depressed when she regained consciousness. Id. Her doctor eventually referred her to a psychiatrist, “who had her admitted to the psychiatric ward of defendant . . . [h]ospital.” Id. During her stay, the nurse aide sent the plaintiff into the shower room alone, where she lost consciousness and fell. Id. at 100. Plaintiff brought a negligence action against the hospital for her injuries. Id. The Kastler majority held the plaintiff was not required to introduce expert testimony on the standard of care because the activity at issue—“showers of patients—was routine care.” Id. at 102 (reasoning that “the jury could use its own knowledge and good sense with respect to the hospital‘s conduct in question“). The plaintiff did not claim improper medication caused her to fall. More recently, we held that the plaintiff‘s failure to designate an expert witness precluded liability against a skilled nursing facility that allegedly failed to reposition the plaintiff to avoid bedsores, rejecting the argument that no expert was required because the nursing care was routine or ministerial. Thompson v. Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000). We gave the following test for determining whether expert testimony is required: [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]. Id. (alterations in original) (quoting Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999)). Again, the problem for Struck is that she only pleaded “professional negligence” claims and breach of duties of professional care. See Bishop v. St. John Hosp., 364 N.W.2d 290, 292 (Mich. 1984) (per curiam) (holding plaintiff who sued for professional negligence arising from fall in hospital was not entitled to ordinary negligence instruction). This is not a case where the hospital patient slipped on a wet floor or tripped over a loose rug. Struck alleges no dangerous condition in her hospital Persuasive authority in other jurisdictions holds that expert testimony is required to recover under allegations like those actually pleaded by Struck. See, e.g., Chamis v. Ashland Hosp. Corp., 532 S.W.3d 652, 656 (Ky. Ct. App. 2017) (requiring expert testimony when the patient fell from the hospital bed because “[d]etermining whether [the patient] was at a high risk of falling required an exercise in professional judgment“); Crosthwait v. S. Health Corp. of Hous., 94 So. 3d 1070, 1076 (Miss. 2012) (en banc) (“[A]ny determination on whether Crosthwait could make this walk safely from the bathroom to her bed would require the exercise of professional knowledge and judgment in order to assess her medical condition and consequent physical limitations.“); Rabinovich, 179 A.D.3d at 94 (“The issues of whether the plaintiff needed additional screening, monitoring, or supervision, and whether she was at risk of falling due to a medical condition, involve the exercise of medical judgments beyond the common knowledge of ordinary persons.“); Santana v. St. Vincent Cath. Med. Ctr. of N.Y., Finally, the district court correctly ruled that Other courts have held pre-suit requirements and limitations including a certificate of merit apply to the patient‘s negligent retention claims against the hospital. See, e.g., Palms W. Hosp. Ltd. P‘ship v. Burns, 83 So. 3d 785, 788 (Fla. Dist. Ct. App. 2011) (per curiam) (holding that claims alleging hospital‘s “negligent retention of doctors who failed to treat patients and the hospital‘s continued staffing of these doctors are claims arising under the Medical Malpractice Act and implicate pre-suit requirements“); Ray v. Scottish Rite Child.‘s Med. Ctr., Inc., 555 S.E.2d 166, 168-69 (Ga. Ct. App. 2001) (holding negligent retention claim against hospital was subject to time-bar for medical malpractice actions even though the “action for negligent retention raises different factual issues concerning the hospital‘s conduct as opposed to [the doctor‘s] conduct—their claim nevertheless calls into question [the doctor‘s] professional skills, or lack thereof, and their damages are predicated upon proof that [the doctor‘s] substandard medical care caused [plaintiff‘s] injuries“); see For those reasons, we vacate the decision of the court of appeals. We affirm the district court judgment dismissing Struck‘s entire petition with prejudice. COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED.I. Background Facts and Proceedings.
II. Standard of Review.
IV. Disposition.
Notes
One is where 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. The other exception is really an example of the first situation. It arises when the physician injures a part of the body not being treated.
453 N.W.2d at 636 (quoting Buckroyd v. Bunten, 237 N.W.2d 808, 811-12 (Iowa 1976)). For example, expert testimony would not be required in a malpractice action alleging the surgeon removed the wrong kidney or inadvertently left a clamp inside the patient‘s body. See, e.g., 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.“); Whetstine v. Moravec, 291 N.W. 425, 436 (Iowa 1940) (“It has seldom been questioned, that where the act of omission or commission, upon the part of the surgeon, has been plainly negligent, as where a sponge, gauze, an instrument, or needle has been left in the body, the rule of res ipsa loquitur applies, and that it is also unnecessary to show by expert testimony that such an act does not comport with the required standards.“).a place which is devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care over a period exceeding twenty-four hours of two or more nonrelated individuals suffering from illness, injury, or deformity, or a place which is devoted primarily to the rendering over a period exceeding twenty-four hours of obstetrical or other medical or nursing care for two or more nonrelated individuals . . . .
1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert‘s name, qualifications and the purpose for calling the expert within the following time period:
a. The plaintiff within one hundred eighty days of the defendant‘s answer unless the court for good cause not ex parte extends the time of disclosure.
b. The defendant within ninety days of plaintiff‘s certification.
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert‘s testimony is given by the court for good cause shown.