Patients who sue their healthcare providers in Iowa are required to file a certificate of merit from a qualified expert who attests the provider breached the standard of care. An Iowa statute requires them to file this certificate within sixty days of the provider’s answer, but before the start of discovery, or the patient’s case must be dismissed. The certificate of merit requirement has caused much consternation for both patients and providers. The Iowa Supreme Court recently agreed to hear an appeal in Estate of Fahrmann v. ABCM Corporation, which may provide some clarity about what is actually required to comply with the certificate of merit statute.
In Estate of Fahrmann, the patient filed initial disclosures, in which a party discloses individuals who have discoverable information. Among the names the patient disclosed was that of an expert witness the patient said would testify the provider breached the standard of care. The patient filed this initial disclosure within sixty days of the provider’s answer but did not file a certificate of merit.
After the sixty-day deadline for certificates of merit expired, the provider filed a motion to dismiss. He argued the initial disclosure did not satisfy the certificate of merit requirement, because the disclosure was not in affidavit form, was not signed by the expert, did not state specific criticisms of the provider, and did not state the expert was familiar with the applicable standard of care. Almost immediately after the provider filed his motion to dismiss, the patient filed a certificate of compliance that appeared to comply with the requirements of the certificate of merit statute.
The patient argued his case should not be dismissed because 1) the initial disclosure substantially complied with the certificate of merit requirement because it identified an expert who would say the provider breached the standard of care, 2) the provider waived the right to a certificate of merit affidavit by engaging in discovery seeking information about the patient’s expert witnesses, and 3) the patient cured any issues by providing a compliant affidavit almost immediately after the motion was filed. The trial court disagreed and dismissed the patient’s case.
The Iowa Supreme Court has now agreed to hear this appeal and should provide some guidance about what the certificate of merit statute actually requires an whether the requirement can be waived. The appeal will not be heard until September 2023 at the earliest. In the interim, litigants should take some lessons from this case. Patients should be certain to comply with the certificate of merit requirement in a timely manner. Practitioners should wait until after the sixty-day window for certificates of merit has passed before doing initial disclosures and should not serve written discovery until they have received a substantially compliant certificate of merit from the patient. This would avoid many of the issues the Iowa Supreme Court is about to hear.
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