Ted T. Appel

The Iowa Supreme Court recently issued a unanimous, but narrowly written, opinion involving Iowa Code section 147.140, commonly known as the certificate of merit affidavit statute, on February 9, 2024 named Jorgensen v. Smith et. al. The main issue on appeal was whether a plaintiff needs to provide a timely certificate of merit affidavit from a qualified expert to attest that an entity was negligent in retaining medical personnel. The answer, for now, is that one is not needed for such claims.

In 2017, the Iowa legislature enacted the certificate of merit affidavit statute as part of a tort reform package to deter frivolous medical malpractice actions. Under the certificate of merit affidavit statute, the plaintiff must provide an affidavit from a qualified expert that states the defendant heath care provider breached the standard of care within sixty days of the healthcare provider’s answer. The failure to substantially comply with the statute requires dismissal with prejudice. A plaintiff is only required to file a certificate of merit if 1) the action is for “personal injury or death”; 2) is against a healthcare provider defined by Iowa Code; 3) the cause of action is “based upon the alleged negligence in the practice of that profession or occupation or in patient care”; and 4) the cause of action requires expert testimony on the standard of care and its breach.

The defendant clinic argued on appeal that the cause of action of negligent retention was based upon the alleged negligence in the practice of the healthcare provider clinic’s “occupation”; but the appellate brief did not argue that negligent retention was alleged negligence in the practice of that “profession” or “in patient care.” The Court limited its analysis to whether the negligent retention claim was in the “occupation” based on the party-presentation rule or appellate waiver doctrine which limits an appellate Court’s review to the issues presented in the parties briefing. The Court went on to explain, with several dictionary definitions, that the common and the ordinary meaning of the term “occupation” focuses on a person; not an entity such as the clinic. Consequently, no certificate of merit affidavit was needed on the negligent retention claim, based on the arguments made on appeal. However, the Court stressed that “this opinion does not announce any categorical rule as to whether or not plaintiffs in negligent retention cases must serve certificate of merit affidavits that address the negligence of employers.”

So what does this opinion mean?

First, it appears the Court is hinting, perhaps even strongly hinting, that a negligent retention claim may require a certificate of merit affidavit. Those wanting to file a motion to dismiss/summary judgment on a negligent retention claim should explain why a negligent retention claim is “alleged negligence in the practice of that profession or in patient care.”

Second, as more of a practical matter, if a litigant is going to be hyper-technical about this statute, the Court is going to be hyper-technical back. This is important to note for further motion and appellate practice on this statute.