In 2017, Iowa enacted a statute that aimed to dismiss meritless medical malpractice actions early in the case. The statute, Iowa Code § 147.140, requires that a plaintiff provide a certificate of merit signed by an expert within 60 days of the defendants’ answer. The certificate must address the standard of care and the defendant’s alleged breach of that standard. If the plaintiff fails to provide such a certificate, the defendant may move for dismissal with prejudice. Now that the statute has been on the books for a few years, cases are finally reaching the appellate courts, providing precedent on how lower courts should apply the statute.
One of these recent cases is Struck v. Mercy Health Services-Iowa Corp., a case defended by Lamson Dugan & Murray’s team. In Struck, a plaintiff fell in her hospital room. The plaintiff brought a claim for medical malpractice. When the plaintiff failed to provide a certificate of merit, the trial court dismissed the case. The court of appeals affirmed the dismissal of the medical malpractice claim but concluded that the complaint also alleged an ordinary negligence claim. The court of appeals reasoned that this ordinary negligence claim did not require a certificate of merit and remanded the ordinary negligence claim.
The supreme court granted further review. It reversed the court of appeals, concluding that the plaintiff’s petition stated only a malpractice claim and did not include an ordinary negligence claim. The supreme court, remarking that the certificate of merit statute aimed to dismiss meritless cases early, explained that it would not permit a professional negligence claim to be labeled as an ordinary negligence claim to circumvent the certificate of merit statute.
Struck is, to date, the only case decided by the supreme court on the certificate of merit statute. The court of appeals, however, has decided a few more cases under the statute. In Butler v. Iyer, the court of appeals held that a certificate of merit that was served 18 days late failed to substantially comply with the statute. The court also held that defendants did not waive the requirements of the statute by serving discovery on the plaintiff before plaintiff’s certificate of merit was due.
And in McHugh v. Smith, the court of appeals held that initial disclosures and interrogatory responses served by the plaintiff that identified experts did not amount to substantial compliance with the statute. The court explained that the statute requires the certificate come in the form of an affidavit signed by an expert and that interrogatories and initial disclosures were not the equivalent of such an affidavit. When the plaintiff finally did submit an affidavit, it came more than 60 days after the defendant had answered, which was too late.
To date, Iowa appellate courts have affirmed the dismissal of several cases because of a failure to comply with the certificate of merit statute. The statute is thus fulfilling its stated purpose, which is to bring about a prompt conclusion to lawsuits that lack expert support for an allegation that a defendant had breached the standard of care. The statute is a powerful weapon in the hands of experienced medical malpractice defense attorneys.