Renee Hummel v. Adam B. Smith, Adam Smith, M.D., P.C., and Tri-State Specialists, L.L.P.Renee Hummel v. Adam B. Smith, Adam Smith, M.D., P.C., and Tri-State Specialists, L.L.P.
*1 I N THE S UPREME C OURT OF I OWA
No. 22 Submitted November 15, 2023 — Filed December 22, 2023
R ENEE H UMMEL ,
Appellee, vs.
A DAM B. S MITH , A DAM S MITH , M.D. , P.C. , and T RI -S TATE S PECIALISTS , L.L.P. ,
Appellants.
Appeal from the Iowa District Court for Woodbury County, Roger L. Sailer, Judge.
The defendants in a medical malpractice case seek interlocutory review of an order denying their motion to strike and for summary judgment because the expert who signed the plaintiff’s certif icate of merit did not have an active license to practice medicine. R EVERSED AND R EMANDED .
Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, McDonald, and Oxley, JJ., joined, and in which McDermott and May, JJ., joined in part. McDermott, J., filed a special concurrence, in which May, J., joined.
Jeff W. Wright and Zack A. Martin of Heidman Law Firm, P.L.L.C., Sioux City, for appellants.
Jon Specht of Trial Lawyers for Justice, Decorah, for appellee. *2 M ANSFIELD , Justice.
I. Introduction.
To establish a prima facie case of medical malpractice, the plaintiff must
ordinarily provide expert testimony that the defendant breached the relevant
standard of care.
See Oswald v. LeGrand
,
In this medical malpractice case, the plaintiff submitted a certificate of merit signed by a physician who had practiced in the same field — plastic surgery — as the defendant. But due to his retirement, the physician’s active practice licenses had expired and become inactive, meaning that he was no longer able to practice medicine. The defendants moved to strike the expert and for summary judgment on this ground. After the district court denied the defendants’ motion, we granted their application for an interlocutory appeal.
We now conclude that th e “licensed to practice” language in the statute requires the expert to have an active license that allows the actual practice of medicine; an inactive license does not meet this requirement. Therefore, we reverse the district court ’ s ruling and remand for entry of judgment in favor of the defendants.
II. Background Facts and Proceedings.
On March 23, 2020, Renee Hummel sued Dr. Adam Smith and entities
that employed him for injuries she sustained as a result of a 2018 breast
*3
reduction surgery.
[1]
Hummel ’s petition alleged negligence, breach of warranty,
and failure to obtain informed consent. On June 15, pursuant to Iowa Code
However, Dr. Marfuggi acknowledged in the affidavit that he had retired from clinical practice on July 1, 2019. As it turned out, by the time Dr. Marfuggi signed the affidavit, both his New York and New Jersey licenses had become “ inactive ” or “ retired, ” meaning that he was no longer authorized to practice medicine in either state.
Later, Hummel designated Dr. Marfuggi as an expert witness for purposes of Iowa Code section 668.11. In an expert report, Dr. Marfuggi explained in greater detail the ways in which he believed Dr. Smith had breached the applicable standard of care.
On April 25, 2022, Dr. Smith moved to strike Dr. Marfuggi as an expert
witness and moved for summary judgment. Dr. Smith contended that the case
should be dismissed because Dr. Marfuggi had not met the expert witness
requirements of Iowa Code section 147.139(1).
See
Hummel resisted Dr. Smith’s motion. She later supplemented her resistance with a sworn declaration from Dr. Marfuggi stating that he was eligible to restore his New Jersey license to “active” status and was in the process of doing so.
Following a hearing, the district court denied Dr. Smith’s motions. The court reasoned that Dr. Marf uggi’s status as “licensed” in New Jersey and New York was sufficient for purposes of Iowa Code section 147.139(1). It noted that Iowa Code section 147.139(1) only requires the expert to be “l icensed to practice, ” while in the very next subsection, the statute requires that the expert have “actively practiced” within the five years pr eceding the alleged negligence. See id. § 147.139 (2). In the district court’s view, this contrast in wording m eant that a license to practice ” need not be “ active, ” and it held that Dr. Marfuggi’s inactive and retired licenses satisfied the statutory requirements for in section 147.139(1) for an expert witness.
Dr. Smith filed a timely application for an interlocutory appeal. We granted the application and stayed district court proceedings. We retained the appeal.
III. Standard of Review.
The issue is one of statutory interpretation. “Our review is . . . for
correction of errors at law.”
State v. Ness
, 907 N.W.2d 484, 487 (Iowa 2018)
(quoting
State v. Albrecht
,
IV. Analysis.
In 2017, the Iowa legislature amended Iowa Code section 147.139 relating
to expert witness standards.
See
2017 Iowa Acts ch. 107, § 3 (codified at
If the standard of care given by a health care provider, as defined in section 147.136A, is at issue, the court shall only allow a person the plaintiff designates as an expert witness to qualify as an expert witness and to testify on the issue of the appropriate standard of care or breach of the standard of care if all of the following are established by the evidence:
1. The person is licensed to practice in the same or a substantially similar field as the defendant, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended.
2. In the five years preceding the act or omission alleged to be negligent, the person actively practiced in the same or a substantially similar field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant.
3. If the defendant is board-certified in a specialty, the person is certified in the same or a substantially similar specialty by a board recognized by the American board of medical specialties or the American osteopathic association.
4. If the defendant is a licensed physician or osteopathic physician under chapter 148, the person is a physician or osteopathic physician licensed in this state or another state.
No one disputes that Dr. Marf uggi was “licensed” in New York and
New Jersey when he signed the certificate of merit affidavit and his expert report
for this case in 2020. Under New York law, a physician’s license “shall be valid
during the life of the holder unless revoked, annulled or suspended.”
Likewise, Dr. Marfuggi had become a “retired” licensee upon his 2019
retirement in New Jersey. New Jersey recognizes the status of a “retired” licensee who is licensed but not authorized to practice medicine.
See
Iowa also has a category of physicians who are licensed but inactive and
ineligible to practice. Under Iowa law, “[a] physician whose license is inactive
continues to hold the privilege of licensure in Iowa but may not practice medicine
under an Iowa license until the license is reinstated to current, active status .”
Clearly, Dr. Marfuggi would have qualified as a standard-of-care expert if he had signed the certificate of merit affidavit and the expert report in 2018, before his retirement. The fighting issue in this case is whether Dr. Marfuggi was “licensed to practice” in 2020, notwithstanding his retirement and the inactive and retired status of his licenses.
“When interpreting the meaning of a statute, we start with the statute’s text.” Calcaterra v. Iowa Bd. of Med. , 965 N.W.2d 899, 904 (Iowa 2021). “If statutory language in its proper context is unambiguous, we do not look past the plain meanin g of the words.” Id.
As we have explained, A statute is ambiguous if reasonable minds could differ or be
uncertain as to the meaning of the statute.” We have said that “[a]mbiguity 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.” In other words, even if the meaning of words might seem clear on their face, their context can create ambiguity.
That is because we read statutes as a whole rather than looking at words and phrases in isolation.
Iowa Ins. Inst. v. Core Grp. of the Iowa Ass’n for Just .
,
Hummel argues that “licensed to practice” means nothing more than
“licensed.” She maintains that if the legislature wanted to impose an active
practice requirement, it would have said so. She emphasizes that the entire
phrase reads “licensed to practice in the same or a substantially similar field as
the defendant, ” and that the point of the word “practice” is simply to assure that
the expert has been engaged in the same field as the defendant.
On our first pass, we find that the term “licensed to practice” is ambiguous. The text seems to favor Dr. Smith. It is framed in the present tense —“is licensed to practice”— and the undisputed facts are that Dr. Marfuggi could not legally practice medicine when he signed the certificate of merit affidavit and the expert report. He was licensed but not licensed to practice.
Yet reasonable minds could differ. Reading the statute as a whole, it is
plausible that “to practice” should be coupled primarily with “ in the same or a
substantially similar field as the defendant” and that the effect of the phrase is
to require that the expert possess a license covering the same or a substantially
similar field as the defendant, whether active or not. This is seemingly bolstered
by the separate requirement imposed by
One tool is the presumption against superfluous words.
See Iowa Ins. Inst.
,
Hummel argues that Dr. Smith’s interpretation also leads to extra words.
That is, it creates a redundancy between the first sentence of
We also interpret statutes to favor reasonable results.
See Iowa Ins. Inst.
,
Another relevant interpretive consideration is what the phrase “license to practice” means when used elsewhere in the Iowa Code. See State v. Richardson , 890 N.W.2d 609, 618 (Iowa 2017) (“One possible tool is to examine how the phrase . . . is used elsewhere in the Iowa Code.”). Generally, the phrase means that the person has the present legal ability to practice in the field. In fact, chapter 147 frequently uses “license” and “license to practice” interchangeably, such that the word “license” when used alone means an active license. Consider the following instances where “license” in isolation refers to an active license: Iowa Code section 147.2(1) provides that a person shall not practice medicine without a “license for that purpose , ” and section 147.7(1) provides that a board “may req uire every person licensed by the board to display the license and evidence of current renewal publicly in a manner prescribed by the board. ”
By contrast, chapter 147 equates an “inactive license” with a “lapsed”
license that needs to be reactivated before it can be used. Iowa Code
Iowa Code section 147.49 states, “A board shall, upon presentation of a license to practice a profession issued by the duly constituted authority of another state with which this state has established reciprocal relations . . . license the applicant to practice in this state.” In this context, “license to practice” clearly means an active license. Were the phrase “ license to practice ” to be read to include inactive and retired licenses, the Iowa Board of Medicine would be compelled to grant licensure to physicians from reciprocal states who had long ceased practicing medicine and whose licenses had lapsed many years ago.
We may also consider legislative history. Iowa law provides that in interpreting an ambiguous statute, we may consider “[t]he circumstances under which the statute was enacted” and “ [t] he legislative history.” Id. § 4.6(2) (3); see also Iowa Ins. Inst. , 867 N.W.2d at 76. The bill explanation for the 2017 legislation states,
The bill provides standards for an expert witness in a medical malpractice case. The bill provides that a person is only qualified to serve as an expert witness in a medical malpractice case if the person is a licensed health care provider, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended . . . .
H.F. 487, 87th G.A., 1st Sess., explanation (Iowa 2017). This summary of the
legislation indicates that a person can serve as an expert if the person is “a
licensed health care provider.” It does not indicate that the license must be active
or that it must authorize practice. We have relied on bill explanations in the past
as interpretive aids, noting that the internal rules governing the general
assembly require such explanations to be accurate.
See Iowa Ins. Inst.
,
While the matter is not free from doubt, when we weigh all of these
considerations together , we conclude that “license to practice” as used in
Also, Dr. Smith’s interpretation is more consistent with how terms like
“license” and “license to practice” are used elsewhere in chapter 147. And we
avoid redundancy if we conclude that the term “to practice” was included in
While our interpretation of this 2017 statutory revision is a matter of first impression, it is not made in a vacuum. Several of our sister states with similar statutes concerning expert testimony have come to the same conclusion.
Louisiana law requires that experts testifying in a medical malpractice
case must be “licensed to practice medicine” in Louisiana or any other state or
be a graduate of a medical school accredited by the American Medical
Association ’ s Liaison Committee on Medical Education or the American
Osteopathic Association.”
Similarly, Ohio law requires that physicians testifying in medical
malpractice claims be “licensed to practice medicine and surgery, osteopathic
medicine and surgery, or podiatric medicine and surgery by the state medical
board or by the licensing authority of any state.” Ohio Evid. R. 601 (B)(5)(
a
). In
the case of
May v. Donich Neurosurgery & Spine
,
L.L.C.
, the plaintiffs offered
opinions from a physician whose license had expired about four months prior to
signing an affidavit of merit for the case. No. 29215,
In Pennsylvania, an expert delivering medical testimony concerning standard of care must [p]ossess an unrestricted physician’s license to practice medicine in any state or the District of Columbia. ” 40 Pa. Stat. and Cons. Stat. § 1303.512( b )(1) (West 2020). In the case of Bethea v. Philadelphia AFL-CIO Hospital Association , the plaintiff proposed as her expert a retired general surgeon whose medical license had expired three years prior to the preparation of his expert report. 871 A.2d 223, 225 (Pa. 2005). The court found that his expired license was not a license to practice as required by statute and affirmed the dismissal of the plaintiff’s claim. Id. at 226 – 27.
Thus, our conclusion that Iowa law requires medical malpractice experts
to possess active licenses would not put us on an island. For all the reasons
stated — including statutory text, rules of interpretation, and the views of other
states — we conclude that a qualified expert under Iowa Code
We now turn to Hummel’s alternative argument that she substantially
complied with the relevant statutory requirements.
See
Because Dr. Marfuggi did not have a license to practice medicine when he signed the certificate of merit affidavit or the expert report, we reverse and remand with directions that judgment be entered in favor of the defendants.
V. Conclusion.
For the foregoing reasons, we reverse the district court ’ s order and remand for further proceedings consistent with this opinion.
R EVERSED AND R EMANDED .
Christensen, C.J., and Waterman, McDonald, and Oxley, JJ., join this opinion, and McDermott, and May, JJ., join in part. McDermott, J., files an opinion concurring specially, in which May, J., joins.
#22 1572, Hummel v. Smith M C D ERMOTT , Justice (concurring specially).
I join today’s opinion except for the part that ventures into legislative
history. The majority correctly construes the statute’s use of “license to practice”
in
“The law
is
what the law
says
. . . . ”
Bank One Chi., N.A. v. Midwest Bank
& Tr. Co.
,
Reliance on legislative history is built on the flawed premise that when construing statutes we are looking for the intent of the legislature rather than the meaning of a statute’s text. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 375 (2012) [hereinafter Scalia & Garner]. But legislative bodies do not possess some freestanding “intent” that courts can divine. For this reaso n, “[w]e do not inquire what the legislature meant; we ask only what the statute means.” Schwegmann Bros. v. Calvert Distillers Corp. , 341 *17 U.S. 384, 396 – 97 (1951) (Jackson, J., concurring) (quoting Oliver Wendell Holmes, The Theory of Legal Interpretation , in Collected Legal Papers 203, 207 (1920)).
A broad body of legal canons has formed around how courts should interpret statutory text. See generally Scalia & Garner (detailing numerous canons of statutory interpretation). But no similar canons exist for all the different legislative histories one might find. “Since there are no rules as to how much weight an element of legislative history is entitled to, it can usually be either relied upon or dismissed with equal plausibility.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 35 – 36 (1997). Proper constraints on judicial decision-making that derive from the text — constraints consistent with, if not critical to, the nature of our democratic system — come undone when we resort to legislative history as an interpretive tool.
In Iowa, a bill must pass both the senate and house of representatives and
be signed by the Governor to become law.
Ours is a system of written laws, and people can readily understand that they will be bound by a law’s actual text. But people have no way of knowing that they might also be bound by explanatory passages that a sponsoring legislator includes when the bill is introduced in the legislature or bound by some individual legislator’s statements uttered in the course of debate on a bill. And, with any particular piece of legislative history, people “would not know any way of anticipating what would impress enough members of the Court to be controlling” in any event. Schwegmann Bros. , 341 U.S. at 396 (Jackson, J., *18 concurring). Our interpretation should be based on what the text says and fairly implies without resorting to legislative history, which neither controls nor clarifies the law’s meaning.
May, J., joins this special concurrence.
Notes
[1] For the sake of simplicity, we will refer to the defendants collectively as Dr. Smith. ”