Estate of Roberta Ann Butterfield by Bradley Dean Butterfield and Deanne Marie Rogers, Co-Adminstrators v. Chautauqua Guest Home, Inc. d/b/a Chautauqua Guest Home 3 and Chautauqua Guest Homes

IN THE SUPREME COURT OF IOWA
No. 22–0101
Submitted January 18, 2023—Filed March 17, 2023
Amended March 21, 2023
ESTATE OF ROBERTA ANN BUTTERFIELD by BRADLEY DEAN
BUTTERFIELD and DEANNE MARIE ROGERS, Co-Administrators,
Appellants,
vs.
CHAUTAUQUA GUEST HOME, INC. d/b/a CHAUTAUQUA GUEST HOME #3
and CHAUTAUQUA GUEST HOMES,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland,
Judge.
The supreme court reviews a court of appeals decision affirming the
dismissal of a medical malpractice lawsuit with prejudice for failing to comply
with the Iowa Code section 147.140(1)(a) certificate of merit affidavit
requirement. DECISION OF COURT OF APPEALS VACATED IN PART;
DISTRICT COURT JUDGMENT REVERSED IN PART AND REMANDED.
Christensen, C.J., delivered the opinion of the court, in which Waterman,
Mansfield, McDonald, and Oxley, JJ., joined. May, J., filed an opinion concurring
in part and dissenting in part, in which McDermott, J., joined.
2
Jeffrey A. Pitman (argued) of Pitman, Kalkhoff, Sicula & Dentice, S.C.,
Milwaukee, Wisconsin, and John T. Hemminger of Law Offices of John T.
Hemminger, Des Moines, for appellant.
Joseph D. Thornton (argued) of Smith Peterson Law Firm, LLP, Council
Bluffs, for appellees.
3
CHRISTENSEN, Chief Justice.
In this medical malpractice case, a decedent’s estate brings suit against a
nursing home, alleging various omissions and failures. Although the estate filed
suit in a timely manner, it did not serve a certificate of merit affidavit on the
defendants. Consequently, the nursing home moved to dismiss the claims
against it with prejudice, as provided under Iowa Code section 147.140 (2021).
In response, the estate argued the certificate of merit was unnecessary because
that requirement does not apply to plaintiffs who need experts solely for
causation (as opposed to the standard of care or breach). The district court
disagreed and dismissed all of the estate’s claims. The court of appeals affirmed.
Upon review, we reverse the court of appeals in part and conclude the
certificate of merit requirement does not apply to the plaintiffs who need experts
solely for causation. With respect to the remaining issues on appeal, we let the
court of appeals decision stand. Because it is not clear which of the plaintiff’s
claims needed an expert only to establish causation and were therefore not
subject to the certificate of merit requirement, we also remand this case to the
district court to determine which of the plaintiff’s claims survive the failure to
file the certificate of merit.
I. Background Facts and Proceedings.
The well-pleaded facts of this case center on injuries that Roberta
Butterfield allegedly sustained in the care of Chautauqua Guest Home, Inc., a
skilled nursing facility. Butterfield resided at Chautauqua, starting in
October 26, 2017. On May 19, 2018, almost exactly one year before her death,
4
Butterfield’s leg popped while Chautauqua caretakers were transferring her from
the bathroom to a wheelchair. Six days later, Chautauqua transferred Butterfield
to the hospital, where she was diagnosed with a left hip fracture. The fracture
required surgery, which was performed on May 27.
Butterfield returned to Chautauqua on June 1. At that time, she did not
suffer from any pressure injuries or skin problems. For the next several months,
Butterfield spent a significant amount of time in bed. By January 10, 2019, a
blister had developed on Butterfield’s left buttock. It measured about 0.8
centimeters by 1 centimeter. By February 28, the blister had grown to about 2.8
centimeters by 3 centimeters by 1.8 centimeters. By April 3, the blister was 7.5
centimeters by 2 centimeters by 4 centimeters. Sometime between February and
April, the blister became infected and started to emit a foul odor. Butterfield died
on May 18.
About a year later, on April 20, 2020, Butterfield’s estate (the Estate) filed
the medical malpractice lawsuit on appeal here. Chautauqua answered on
May 21. The parties agreed to a discovery plan on June 15, which the district
court approved on June 16. The parties submitted initial disclosures during July
and continued conducting discovery for the next year. Then, on July 16, 2021,
Chautauqua filed a motion to dismiss with prejudice pursuant to Iowa Code
section 147.140. The district court conducted a hearing on August 31, which
resulted in an order sustaining the motion to dismiss. After the district court
rejected the Estate’s motion to reconsider, the Estate appealed. We transferred
5
that appeal to the court of appeals, which affirmed the district court. The Estate’s
request for further review was granted.
II. Standard of Review.
Under Iowa Code section 147.140, “[w]e review both a motion to dismiss
and a district court’s statutory construction for correction of errors at law.”
Ronnfeldt v. Shelby Cnty. Chris A. Myrtue Mem’l Hosp., 984 N.W.2d 418, 421
(Iowa 2023) (citing Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533,
538 (Iowa 2022)).
III. Analysis.
In this case, the Estate principally argues that its petition should not have
been dismissed because Iowa Code section 147.140 does not apply. On that
point, we reverse the court of appeals in part and find that the district court
properly dismissed any claims for which the Estate needed expert testimony
about the standard of care or breach. We also find that it erred by dismissing
claims for which the Estate did not need an expert for standard of care or breach.
We let the court of appeals decision stand on the Estate’s remaining attempts to
avoid the certificate of merit requirement, including its litigation waiver,
substantial compliance, and contract-based arguments. See Farnsworth v. State,
982 N.W.2d 128, 135 (Iowa 2022).
A. The New Requirements in Iowa Code Section 147.140. Before our
analysis of the merits, we review the pertinent provisions of section 147.140.
Iowa Code section 147.140, which was enacted in 2017, established new
procedural requirements for plaintiffs in some medical malpractice lawsuits. See
6
2017 Iowa Acts ch. 107, § 4 (codified at Iowa Code § 147.140(1)(2018)); Struck,
973 N.W.2d at 538. Pursuant to this section, the new requirements apply to
personal injury or wrongful-death actions against medical professionals,
including “cause[s] of action for which expert testimony is necessary to establish
a prima facie case.” Iowa Code § 147.140(1)(a).
According to these requirements, plaintiffs must serve the defendant with
a certificate of merit, which is “an affidavit signed by an expert witness stating
the appropriate standard of care and its alleged breach.” Morrow v. United States,
47 F.4th 700, 702–03 (8th Cir. 2022); see also Iowa Code § 147.140(1)(a)–(b).
Plaintiffs must serve the certificate within sixty days of the defendant’s answer.
Morrow, 47 F.4th at 702–03; see also Iowa Code § 147.140(1)(a).
Importantly, noncompliance carries a “harsh” consequence. McHugh v.
Smith, 966 N.W.2d 285, 289 (Iowa Ct. App. 2021). The statute provides for
dismissal with prejudice “upon motion” of the causes of action that require
expert testimony if a plaintiff fails to substantially comply with the certificate of
merit requirement. Iowa Code § 147.140(6) (“Failure to substantially comply with
subsection 1 shall result, upon motion, in dismissal with prejudice of each cause
of action as to which expert witness testimony is necessary to establish a prima
facie case.”).
We have previously explained that section 147.140 “is meant to end cases
early (sixty days after the answer) when expert testimony is required.” Struck,
973 N.W.2d at 542. The statute is also designed “to ‘identify and weed non-
meritorious malpractice claims from the judicial system efficiently and
7
promptly,’ ” id. (quoting Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006)), and
“deter . . . frivolous actions . . . to thereby reduce the cost of medical malpractice
litigation and medical malpractice insurance premiums,” id. (quoting Rabinovich
v. Maimonides Med. Ctr., 113 N.Y.S.3d 198, 201 (App. Div. 2019)).
B. Whether a Certificate of Merit Affidavit Is Required in This Case.
The Estate’s primary argument is that the certificate of merit requirement does
not apply in this case because an expert is not necessary to establish the
elements of its prima facie case. Chautauqua, in turn, contends that all elements
of the Estate’s claims depend on medical judgment and therefore require experts,
triggering the certificate of merit requirement.
1. Relevant principles of statutory interpretation. “As with all cases involving
statutory interpretation, we start with the language of the statute to determine
what the statute means.” Beverage v. Alcoa, Inc., 975 N.W.2d 670, 680 (Iowa
2022). When a statute’s text and meaning is clear, “we will not search for a
meaning beyond the express terms of the statute or resort to rules of
construction.” Com. Bank v. McGowen, 956 N.W.2d 128, 133 (Iowa 2021)
(quoting In re Est. of Voss, 553 N.W.2d 878, 880 (Iowa 1996)). “However, ‘if
reasonable minds could differ or be uncertain as to the meaning of the statute’
based on the context of the statute, the statute is ambiguous and requires us to
rely on principles of statutory construction to resolve the ambiguity.” State v.
Coleman, 907 N.W.2d 124, 135 (Iowa 2018) (quoting State v. Iowa Dist. Ct., 889
N.W.2d 467, 471 (Iowa 2017)).
8
Thus, “[t]he first step in our statutory interpretation analysis is to
determine whether the statute is ambiguous.” State v. Zacarias, 958 N.W.2d 573,
581 (Iowa 2021) (quoting State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020)). But
a statute is not ambiguous merely because two litigants disagree about its
meaning. Carreras v. Iowa Dep’t of Transp., Motor Vehicle Div., 977 N.W.2d 438,
456 (Iowa 2022) (McDermott, J., concurring in part and dissenting in part)
(“Declaring ambiguity whenever skilled lawyers offer divergent meanings for
phrases would unnecessarily launch us into ambiguity-resolving canons in most
of our cases.”). “Ambiguity 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.” The Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d
417, 425 (Iowa 2010) (quoting Midwest Auto. III, LLC v. Iowa Dep’t of Transp.,
646 N.W.2d 417, 425 (Iowa 2002)).
2. Section 147.140(1) is ambiguous. Iowa Code section 147.140(1) sends
mixed messages as to when a certificate of merit is required. The statute says it
applies to any action in which an expert is needed to establish a prima facie case,
but then it only requires the expert to address the standard of care and breach
elements in the certificate of merit. See id. So, is a certificate of merit required in
any medical malpractice action where expert testimony is necessary to establish
any part of the prima facie case or only when an expert is needed to establish
either the standard of care or breach? The first part of section 147.140(1)(a)
implies the former, whereas the second part implies the latter:
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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 . . . 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.
Iowa Code § 147.140(1)(a) (emphasis added). Section 147.140(1)(b) also implies
the latter by requiring the certificate of merit to include “(1) [t]he expert witness’s
statement of familiarity with the applicable standard of care” and “(2) [t]he expert
witness’s statement that the standard of care was breached by the health care
provider named in the petition.” Id. § 147.140(1)(b). Regarding cases in which
expert testimony is necessary only to establish other elements of a prima facie
case, such as causation or damages, the statute does not explain whether a
certificate of merit is required. With one part of subsection (a) appearing to
require a certificate of merit only when an expert is needed to establish the
standard of care or breach, while another part implies the certificate of merit is
necessary when an expert is needed to establish any prima facie element of the
case, we conclude section 147.140(1)(a) is ambiguous.
To be clear, this ambiguity exists in the statute’s context. See Iowa Ins.
Inst. v. Core Grp. of the Iowa Ass’n for Just., 867 N.W.2d 58, 72 (Iowa 2015)
(“[E]ven if the meaning of words might seem clear on their face, their context can
create ambiguity.”). The statute is ambiguous because of an inconsistency
between the text that triggers the certificate of merit requirement1 and the text
1The statute’s trigger language is as follows: “In any action for personal injury or wrongful
death against a health care provider based upon the alleged negligence in the practice of that
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that explains what must be included in the certificate of merit.2 In many cases,
we have identified statutory text that, although clear in isolation, becomes
ambiguous in a statute’s broader context. See Iowa Ins. Inst., 867 N.W.2d at 72–
73 (finding the phrase “all information” ambiguous when taking surrounding
statutory subsections into account); U.S. Bank Nat. Ass’n v. Lamb, 874 N.W.2d
112, 117 (2016) (deciding the phrase “all liens” is “sufficiently ambiguous” in
light of the phrase’s location and the fact the statute appeared to operate
narrowly). Such is the case here.
3. Resolving the ambiguity. We use the tools of statutory construction to
construe ambiguous statutes. State v. Mathias, 936 N.W.2d 222, 227 (Iowa
2019); see also Iowa Code § 4.6 (recommending seven potential tools for
construing ambiguous statutes, including legislative history and policy
statements). “One such tool is legislative history.” State v. Gross, 935 N.W.2d
695, 703 (Iowa 2019) (citing Iowa Code § 4.6(3); State v. Doe, 903 N.W.2d 347,
352 (Iowa 2017)); see also Iowa Code § 4.6(3) (“If a statute is ambiguous, the
court, in determining the intention of the legislature, may consider. . . [t]he
legislative history.”). Legislative history that shows a bill’s changes over the
course of its enactment can be especially revealing. When the legislature
eliminates a provision during the debate process, “the statute should not be
construed” in a way that gives effect to the eliminated provision. Chelsea Theater
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 . . . .” Iowa Code § 147.140(1)(a).
2The statute requires that certificates of merit must be “signed by an expert witness with
respect to the issue of standard of care and an alleged breach of the standard of care.” Id.11
Corp. v. City of Burlington, 258 N.W.2d 372, 374 (Iowa 1977) (citing Lenertz v.
Mun. Ct., 219 N.W.2d 513, 516 (Iowa 1974)); see also United Elec., Radio & Mach.
Workers of Am. v. Iowa Pub. Emp. Rels. Bd., 928 N.W.2d 101, 110–11 (Iowa 2019)
(relying on the omission of a text in a bill during the legislative process as a tool
of statutory construction); State v. DeSimone, 839 N.W.2d 660, 667–68 (Iowa
2013) (same).
In this case, legislative history is particularly helpful. There were three
drafts of bills that contained the certificate of merit requirement: two study bills
and a house file bill. See S.S.B. 1087, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa
2017); H.S.B. 105, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.F. 487,
87th G.A. sess., § 3(1)(a), (b)(4) (Iowa 2017). The text of each of the three bills
requires that the certificate of merit attest to the standard of care, breach, or
causation. The relevant explanation section of each bill confirms, saying the
proposed language would require plaintiffs to secure certificates of merit that
speak to the standard of care, breach, and causation. The enacted language,
however, says nothing about causation. See 2017 Iowa Acts ch. 107, § 4 (codified
at Iowa Code § 147.140 (2018)). Additionally, the draft bills gave plaintiffs ninety
days to serve a certificate of merit, but the enacted statute reduced that time to
sixty days. See id.The fact that the legislature removed the word “causation” tells us a great
deal. We infer that the legislature did not intend the certificate of merit
requirement in section 147.140(1)(a) to reach questions of causation. At some
point, the legislature considered requiring plaintiffs to obtain a certificate of
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merit by an expert about the standard of care, breach, and causation to obtain
its objectives. But clearly the legislators changed course, perhaps deciding that
they did not want to require plaintiffs to certify causation issues so early in
litigation. This view is further supported by the thirty-day reduction in the time
for serving defendants with a certificate of merit. We conclude Iowa Code section
147.140(1)(a) does not require plaintiffs to submit certificates of merit attesting
to causation even though expert testimony about causation is necessary for the
plaintiff to state a prima facie case.
Another tool of statutory construction is the consequences of a particular
construction. Iowa Code § 4.6(5) (“If a statute is ambiguous, the court, in
determining the intention of the legislature, may consider . . . [t]he consequences
of a particular construction.”). When choosing among various ways to construe
an ambiguous statute, courts should choose a construction that is sensical and
reasonable. See Naumann v. Iowa Prop. Assessment Appeal Bd., 791 N.W.2d 258,
262 (Iowa, 2010) (using rules of construction to interpret an ambiguous statute
in a way that avoids strained or impractical results). Chautauqua argues that
section 147.140 requires a certificate of merit about the standard of care and
breach, even if the plaintiff only needs an expert for causation. As stated above,
it makes no sense to require a party to hire an expert just to fill out a certificate
of merit when no expert is necessary for those elements. In the same way, it
would be illogical to say section 147.140 requires a plaintiff who obtains expert
testimony for causation or damages to submit a certificate of merit regarding the
standard of care and breach. Rather, it is reasonable to conclude there is no
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need for a certificate of merit about the standard of care and breach when an
expert is needed for neither of those elements.
We find support for our conclusion when we compare section 147.140 to
similar statutes in other states. As we explained in Struck v. Mercy Health
Services-Iowa Corp., “At least twenty-eight other states have enacted certificate
or affidavit of merit statutes.” 973 N.W.2d at 541. Like Iowa’s section 147.140,
some states require certificates of merit that attest to just the standard of care
and breach. See, e.g., Miss. Code Ann. § 11-1-58(1)(a) (2022). On the other hand,
like Iowa’s earlier drafts of legislative bills, many other states require certificates
of merit regarding the standard of care, breach, and causation. See, e.g., Mo.
Rev. Stat. § 538.225(1) (2022); Vt. Stat. Ann. tit. 12, § 1042(a)(3) (West 2022).
Clearly, different jurisdictions have pursued various means to achieve the goal
of nipping frivolous medical malpractice lawsuits in the bud. These variations
make us confident that our legislature made a conscious policy decision, not
merely a mistake, when it removed the word “causation” from section
147.140(1)(a).
4. The Estate may need expert testimony to establish the standard of care
and breach, which would trigger the certificate of merit affidavit requirement. “It
is well settled that expert testimony is required to prove professional negligence
claims against healthcare providers.” Struck, 973 N.W.2d at 539. “Ordinarily,
evidence of the applicable standard of care—and its breach—must be furnished
by an expert.” Id. (quoting Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)).
14
Yet we have recognized some professional breaches are so blatant that
expert testimony is not required for them. Id. at 539, n.4. These are breaches in
which “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.” Id. (alteration in original) (quoting Oswald, 453
N.W.2d at 636). Essentially, expert testimony about the standard of care and
breach is not necessary when “the rule of res ipsa loquitur applies,” such as
“where a sponge, gauze, an instrument, or [a] needle has been left in the body.”
Whetstine v. Moravec, 291 N.W. 425, 436 (Iowa 1940); see also 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.”).
But there is another separate set of circumstances in which expert
testimony about the standard of care and breach is not required. Medical
professionals frequently provide “nonmedical, administrative, ministerial, or
routine care” Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101 (Iowa 1971).
For those types of care, expert testimony about the standard of care and breach
is not needed because medical professionals are obliged to offer merely “such
reasonable care for patients as their known mental and physical condition may
require.” Id. at 102. We have held that nonmedical or routine care includes
helping patients shower, see id., and properly repositioning patients to prevent
pressure injuries (such as bedsores), see Thompson v. Embassy Rehab. & Care
Ctr., 604 N.W.2d 643, 646 (Iowa 2000). In contrast, we have also held that expert
15
testimony is required to ascertain the standard of care for forcing patients to
reposition against their will in order to prevent pressure injuries and deciding
the timing of a surgery, because those actions require medical judgment. Id.All in all, we have distilled these principles into the following test:
[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].
Struck, 973 N.W.2d 533 at 543 (alterations in original) (quoting Thompson, 604N.W.2d at 646).
In this case, we remand to the district court the question of whether expert
testimony is necessary with respect to the issue of standard of care and breach.
The Estate’s petition presents a litany of failures on the part of Chautauqua, and
Chautauqua argues in response that the Estate needs experts for all the
elements of its claims. Because the Estate never served a certificate of merit, the
district court should dismiss with prejudice any allegations that require expert
testimony regarding standard of care and breach. For the reasons stated, the
need for expert testimony about causation does not trigger the certificate of merit
affidavit requirement.
IV. Conclusion.
For the foregoing reasons, we reverse the court of appeals decision in part.
We reverse the district court judgment and remand the case, and we need not
address the remaining issues on appeal.
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DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT
COURT JUDGMENT REVERSED IN PART AND REMANDED.
Waterman, Mansfield, McDonald, and Oxley, JJ., join this opinion. May,
J., files an opinion concurring in part and dissenting in part, in which
McDermott, J., joins.
17
#22–0101, In re Estate of Butterfield
MAY, Justice (concurring in part and dissenting in part).
If a plaintiff needs an expert to establish “a prima facie case” of medical
negligence, Iowa Code section 147.140 (2021) requires the plaintiff to serve a
certificate of merit affidavit. The question here is whether causation is part of “a
prima facie case” of medical negligence. The answer is certainly “yes.” But the
majority’s holding implies that the answer is “no.” I respectfully dissent. Because
the Estate of Roberta Butterfield needed an expert to establish causation, the
Estate needed an expert to establish “a prima facie case,” and a certificate of
merit was required. The district court and court of appeals were right. We should
affirm.
I. An Alternative Approach to Section 147.140.
We should find a statute’s meaning in the “text of the statute,” the “words
chosen by the legislature.” State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017)
(quoting State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)). Here are the
relevant words of Iowa Code section 147.140(1)(a):
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.
(Emphasis added.)
18
In Struck v. Mercy Health Services-Iowa Corp., 973 N.W.2d 533 (Iowa
2022), we parsed these words and correctly determined their meanings. “[A]
certificate of merit is required,” we said, “when a plaintiff pleads (1) an ‘action for
personal injury or wrongful death,’ (2) ‘against a health care provider,’ (3) which
is ‘based upon the alleged negligence in the practice of that profession or
occupation or in patient care,’ and (4) ‘includes a cause of action for which expert
testimony is necessary to establish a prima facie case.’ ” Id. at 540 (quoting Iowa
Code § 147.140(1)(a)).
Here, it is undisputed that Struck’s first three criteria are met. No one
disputes that the Estate has pleaded “(1) an ‘action for personal injury or
wrongful death,’ (2) ‘against a health care provider,’ (3) which is ‘based upon the
alleged negligence in the practice of that profession or occupation or in patient
care.’ ” Id. (quoting Iowa Code § 147.140(1)(a)). The only question here concerns
the fourth criterion: does the Estate’s case “include[] a cause of action for which
expert testimony is necessary to establish a prima facie case”? Id. (emphasis
added) (quoting Iowa Code § 147.140(1)(a)). It does.
Again, the starting place is Struck. There we said that to establish a “prima
facie case” of medical negligence, “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.” Id. at 539 (emphasis added) (quoting Oswald v. LeGrand, 453
N.W.2d 634, 635 (Iowa 1990)). So, a medical-negligence plaintiff (like the Estate)
cannot establish a prima facie case without establishing causation. Id. at 540;
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see, e.g., Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 337
(Iowa 2020) (agreeing that evidence “failed to establish the causation element of
Susies’ prima facie case” of medical malpractice). And so, if expert testimony is
necessary to establish causation, then expert testimony is necessary to establish
a prima facie case.
The Estate needs expert testimony to establish causation. Both the district
court and the court of appeals found that this is true.3 The majority does not
dispute those findings. Nor do I.
Because the Estate needs expert testimony to establish causation, “expert
testimony is necessary” for the Estate “to establish a prima facie case.” Iowa
Code § 147.140(1)(a); see Schmitt v. Floyd Valley Healthcare, No. 20–0985, 2021
WL 3077022, at *2 (Iowa Ct. App. July 21, 2021) (concluding that—even though
“the breach of the standard of care [was allegedly] so clear as to be obvious to a
layperson”—“expert witness testimony [wa]s necessary to establish a prima
fac[i]e case” because “causation still required expert testimony”). And because
expert testimony is necessary for the Estate to establish a prima facie case,
section 147.140 required the Estate to timely serve a certificate of merit. But the
Estate did not timely serve a certificate of merit. So the district court was
3The district court found: “To the extent that a breach [of the standard of care] might be
evident to laypersons without expert testimony, causation is not.” The court of appeals agreed:
We do not believe that understanding the causation behind a subtrochanteric
intertrochanteric hip fracture, an ischial pressure injury, or the death of a woman
with a myriad of underlying health conditions is within the common knowledge of
a non-medically trained person. Therefore, expert witness testimony was needed
with respect to the element of causation . . . .
20
required to dismiss the Estate’s case, Iowa Code § 147.140(6), and the court of
appeals was required to affirm. We should affirm both courts.
II. Is It Really that Simple?
Although it’s possible that I’ve overlooked something, I see no reason why
we shouldn’t follow the straight-forward approach outlined above. I see no valid
path to the contrary conclusion that even though the statute plainly requires a
certificate of merit whenever a plaintiff needs an expert to establish a prima facie
case, and even though a prima facie case most certainly includes causation, and
even though the Estate needs an expert to establish causation, the Estate
somehow didn’t need to serve a certificate of merit.
The only option, I think, would be to say that a prima facie case doesn’t
require causation. But no one thinks that’s true. Just last year, our unanimous
Struck opinion said that—in the context of section 147.140—a prima facie case
of medical negligence includes causation. Struck, 973 N.W.2d at 538–39. And
Struck was absolutely right. It is blackletter that when a statute includes a legal
term that has an established legal meaning in a specific legal context, we give
that term its established legal meaning. E.g. Beverage v. Alcoa, Inc., 975 N.W.2d
670, 682 (Iowa 2022) (citing authorities). Section 147.140 deals with a very
specific legal context: medical negligence lawsuits. In the context of medical
negligence lawsuits, the term “prima facie case” has only one meaning—and it is
exceptionally well-established. It is the same three-element meaning that Struck
used. And causation is always one of those three elements. See Struck, 973
N.W.2d at 538–39 (stating that a prima facie case of medical negligence requires
21
evidence of three elements: (1) the standard of care, (2) a violation of the standard
of care, and (3) a causal relationship between a violation of the standard of care
and the injury sustained); Susie, 942 N.W.2d at 337 (same); Eisenhauer ex rel.
Conservatorship of T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 9 (Iowa 2019)
(same); Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 401 (Iowa 2017)
(same); Lobberecht v. Chendrasekhar, 744 N.W.2d 104, 108 (Iowa 2008) (same);
Peppmeier v. Murphy, 708 N.W.2d 57, 61–62 (Iowa 2005) (same); Phillips v.
Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (en banc) (same); Graeve v.
Cherny, 580 N.W.2d 800, 801–02 (Iowa 1998) (same); Kennis v. Mercy Hosp. Med.
Ctr., 491 N.W.2d 161, 165 (Iowa 1992) (same); Oswald, 453 N.W.2d at 635(same); Cole v. Taylor, 301 N.W.2d 766, 767 (Iowa 1981) (same); Daboll v. Hoden,
222 N.W.2d 727, 734 (Iowa 1974) (same); Zaw v. Birusingh, 974 N.W.2d 140,
160 (Iowa Ct. App. 2021) (same); Hill v. McCartney, 590 N.W.2d 52, 56 (Iowa Ct.
App. 1998) (same); Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998)
(same).4
Because the Estate needed an expert to establish causation, the Estate
needed an expert to establish a prima facie case. This triggered the certificate of
merit requirement, which the Estate did not meet. It really is that simple.
III. The Majority’s Approach.
The majority’s approach offers no viable escape from this conclusion.
Before diving into the specifics, though, I would make one general comment. One
4Indeed, causation is a required element—that may require expert testimony—even when
res ipsa loquitor applies. Kennis, 491 N.W.2d at 167.
22
of my main differences with the majority is their focus on the required contents
of a certificate of merit. This case isn’t about the contents of a certificate of merit.
There was no certificate. The Estate didn’t serve one. So there are no contents to
evaluate. Rather, our only task here is to decide whether the Estate was required
to serve any certificate of merit at all. If no certificate was required, dismissal
was improper, and we should reverse. If any certificate was required, then
dismissal was proper, and we should affirm. Because I think a certificate was
required, I think we should affirm.
With that as background, I turn to the majority’s specific points. In brief
summary, the majority contends that (1) because the statute is ambiguous, we
can look beyond the statutory text to (2) legislative history and (3) a
reasonableness inquiry, (4) all of which suggest that a certificate of merit was
not required in this case. I respectfully disagree with each of these points.5
A. Is the Statute Ambiguous About When a Certificate of Merit
Affidavit Is Required? I start with the majority’s central premise—that section
147.140 is ambiguous about when a certificate of merit is required. In the
majority’s view, this ambiguity opens the door to reliance on legislative history
and other matters outside of the statute’s text.
5The majority also compares our statute with other states’ statutes. I agree that these
other statutes show that there were other ways that our legislature could have written section
147.140. And I agree that our legislature made conscious policy decisions when it chose the
words of section 147.140. I conclude that we should give effect to the legislature’s chosen words,
including the phrase “prima facie case,” which unambiguously includes causation in this
medical-negligence context.
23
I note, though, that the Estate made no ambiguity argument in its
appellate briefs. And the court of appeals decided the Estate’s appeal without
oral argument. So the court of appeals never heard any arguments about
ambiguity. Rather, the Estate first mentioned ambiguity in its petition for further
review. But “[w]e generally will not consider issues raised for the first time . . . in
an application for further review.” State v. Shackford, 952 N.W.2d 141, 147–48
(Iowa 2020). I see no reason to make an exception.
In any event, I can find no meaningful ambiguity here. Like the majority, I
think “a statute is not ambiguous merely because two litigants disagree about
its meaning.” And I agree with Justice McDermott that “[d]eclaring ambiguity
whenever skilled lawyers offer divergent meanings for phrases would
unnecessarily launch us into ambiguity-resolving canons in most of our cases.”
Carreras v. Iowa Dep’t of Transp., 977 N.W.2d 438, 456 (Iowa 2022) (McDermott,
J., concurring in part and dissenting in part). Instead, we should limit
declarations of ambiguity to situations in which the operative statutory words
are “susceptible to more than one reasonable meaning.” State v. Rodgers, 560
N.W.2d 585, 586 (Iowa 1997); see State v. Mathias, 936 N.W.2d 222, 228 (Iowa
2019) (finding ambiguity where language had “multiple reasonable meanings”).
That’s not the case here. As the statute makes clear—and as we verified in
Struck—“a certificate of merit is required” whenever the petition “ ‘includes a
cause of action for which expert testimony is necessary to establish a prima facie
case.’ ” Struck, 973 N.W.2d at 540 (quoting Iowa Code § 147.140(1)(a)). And the
phrase “a prima facie case” does not have “more than one reasonable meaning”
24
in this context. Rodgers, 560 N.W.2d at 586. The only reasonable meaning is the
three-element meaning stated in Struck, which includes a causation
requirement. No reasonable meaning of “prima facie case” excludes causation.
So, because the Estate’s claims require expert testimony to establish causation,
those claims require expert testimony to establish a prima facie case, and
therefore “a certificate of merit is required.” Struck, 973 N.W.2d at 540.
The majority deploys two counter-arguments. First, the majority suggests
that there is ambiguity because “the statute does not explain whether a
certificate of merit is required” when a plaintiff (like the Estate) will need expert
testimony to establish one essential part of “a prima facie case”—causation—but
not to establish other parts—standard of care and breach. I respectfully disagree.
The statute unambiguously requires a certificate of merit whenever expert
testimony is needed to establish “a prima facie case.” And just as a pizza needs
a crust, a “prima facie case” requires causation. So if expert testimony is needed
to establish causation, then expert testimony is needed to establish “a prima
facie case,” and the certificate is required. It is required regardless of whether
expert testimony will also be needed for other issues, like standard of care,
breach, damages, or anything else.
Next the majority argues that there is ambiguity because “one part” of
section 147.140(1)(a) “appear[s] to require” a certificate “only when an expert is
needed to establish the standard of care or breach” but “another part implies”
that a certificate “is necessary when an expert is needed to establish any prima
facie element of the case.” I respectfully disagree. This analysis confuses (1) the
25
statute’s trigger conditions, i.e., when a certificate is required; with (2) the
statute’s content requirements, i.e., what a certificate needs to say. To
understand why, it helps to look at section 147.140(1)(a) as a whole:
1. a. 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.
Iowa Code § 147.140(1)(a) (emphases added).
Let’s start with the trigger conditions—the circumstances when a
certificate is required—shown in the italicized text. As we said in Struck, this text
clearly requires a certificate whenever there’s a claim “for which expert testimony
is necessary to establish a prima facie case.” 943 N.W.2d at 540 (quoting Iowa
Code § 147.140(1)(a)).
Next, let’s look at the content requirements—the topics that a certificate
must address—shown in the bold text. This text is also clear: a certificate must
address the “standard of care and an alleged breach of the standard of care.”
Now, if we read these provisions together, we can easily understand the
statute’s meaning. A certificate is required if a plaintiff pleads a claim “for which
expert testimony is necessary to establish a prima facie case.” A certificate must
contain expert statements about the “standard of care” and the “alleged breach
26
of the standard of care.” There’s no uncertainty about (1) when a certificate is
required or (2) what it must contain. There’s no ambiguity.
Of course, I understand the majority’s curiosity about why the legislature
would (1) require a certificate for all cases in which expert testimony is necessary
to establish a prima facie case, which includes standard of care, breach, and
causation; but (2) only require that the certificate address standard of care and
breach. While this asymmetry is interesting, though, it is not outside the range
of reasonable options from which our legislature could properly choose. (More
on this later.) In any event, it doesn’t create any ambiguity about when a
certificate is required. It doesn’t create multiple reasonable meanings for “prima
facie case,” the unambiguous trigger phrase. It gives no reason to think that
causation is not a part of “prima facie case.” It provides no basis to conclude that
“prima facie case” could mean only “standard of care” and “breach.” Indeed, the
statute’s asymmetry confirms that “prima facie case” means something different
than just “standard of care” and “breach.” Otherwise, there would have been no
reason for the legislature to use “prima facie case” near the start of section
147.140(1)(a) and then use different terms—“standard of care” and “breach”—
later in the same section. Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa
2002) (“We assume the legislature intends different meanings when it uses
different terms in different portions of a statute.”). We should honor that
legislative choice by giving “prima facie case” its own particular meaning, which
must include causation. And so, because the Estate’s claims required expert
27
testimony to establish causation, we should acknowledge that the certificate
requirement was triggered.
B. Does Legislative History Require a Different Answer? I also
respectfully disagree with the majority’s reliance on legislative history to support
interpretations that contradict the plain meaning of the enacted text. See, e.g.,
Koehler v. Hill, 14 N.W. 738, 767 (Iowa 1883) (Beck, J., dissenting) (“The enrolled
statute, being the final expression of the legislative will, overcomes all journal
entries which contradict it.”). “It is our duty to accept the law as the legislative
body enacts it.” Holland v. State, 115 N.W.2d 161, 164 (Iowa 1962). Like Justice
McDermott, I worry that focusing on legislative history can easily “divert[] us”
from our duty to give “effect to the text that lawmakers have adopted and that
the people are entitled to rely on.” State v. Davison, 973 N.W.2d 276, 293 (Iowa
2022) (McDermott, J., concurring specially).
In any event, the available history contradicts the majority’s suggestion
that “the legislature did not intend the certificate of merit requirement . . . to
reach questions of causation.” To help explain why this is true, I have created
the table below. In the left column, you can see the unenacted bill language on
which the Estate relies. In the right column, you can see the enacted text of
section 147.140(1)(a).
28
Unenacted Language from House Enacted Language in Section
and Senate Bills6 147.140(1)(a)7
In any action for personal injury or wrongful In any action for personal injury or wrongful
death against a health care provider based death against a health care provider based
upon the alleged negligence in the practice of upon the alleged negligence in the practice of
that profession or occupation or in patient care, that profession or occupation or in patient care,
including a cause of action for which expert which includes a cause of action for which
testimony is necessary to establish a prima expert testimony is necessary to establish a
facie case, the plaintiff shall, within ninety prima facie case, the plaintiff shall, prior to the
days of the defendant’s answer, serve upon commencement of discovery in the case and
the defendant a certificate of merit affidavit for within sixty days of the defendant’s answer,
each expert witness listed pursuant to section serve upon the defendant a certificate of merit
668.11 who will testify with respect to the affidavit signed by an expert witness with
issues of standard of care, breach of respect to the issue of standard of care and
standard of care, or causation. an alleged breach of the standard of care.
By comparing these texts, we can see that there certainly were changes in
the content requirements between the unenacted bills and the enacted statute.
The unenacted bills would have required certificates to address three topics:
“standard of care,” “breach of standard of care,” and “causation.” The enacted
statute only requires a certificate to address two topics: “standard of care” and
“an alleged breach of the standard of care.”
But there were no similar changes to the triggering language, shown in
italics. In the unenacted bills and the enacted statute, the triggering language
remained almost the same. Both versions use the same phrase, “prima facie
case,” which necessarily includes causation. This confirms that the legislature
wanted the certificate of merit requirement to apply whenever a plaintiff needs
an expert to establish causation.
6H.S.B.105, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017) (emphases added); see S.S.B.
1087, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.F. 487, 87th G.A. sess., § 3(1)(a), (b)(4)
(Iowa 2017).
7Iowa Code § 147.140(1)(a) (emphases added).
29
C. What About Reasonableness? Finally, I turn to the majority’s concern
that “it makes no sense” for the legislature to require an expert’s certification
that there has been a breach of the standard of care if it appears that—at trial—
the plaintiff will only need expert testimony to establish causation. I respectfully
disagree.
First, it goes too far to say that the legislative scheme “makes no sense.”
One obvious purpose of section 147.140 is to dispose of meritless suits early.
And there is a reasonable relationship between (1) the goal of disposing of
meritless suits early and (2) requiring an expert’s confirmation that a standard
of care was breached. That’s true even if—at trial—the plaintiff will only need
expert testimony on causation. If a plaintiff’s claims are complex enough that
expert testimony will be needed to establish causation—that is, a causal link
between a breach of a standard of care and a claimed injury—it’s not
unreasonable to want an expert to certify that there really was a breach of a
standard of care.
Moreover, even if section 147.140 seems like an imperfect product of a
messy legislative process, that doesn’t mean that we shouldn’t give effect to its
words. See, e.g., In re BISYS Grp. Inc. Derivative Action, 396 F. Supp. 2d 463, 464
(S.D.N.Y. 2005) (“Congress . . . alone is charged with making the close judgments
and sometimes messy compromises inherent in the legislative process.”). Even if
its requirements are “counterintuitive”—even if they “seem[] contrary to the
court’s expectations”—we still must honor its “clear legislative language.” The
30
Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 427 (Iowa
2010). As Judge Doyle rightly observed:
“In a democracy, the power to make the law rests with those chosen
by the people.’ ” King v. Burwell, 135 S. Ct. 2480, 2496 (2015). Even
if we dislike the law or think some other approach might be a better
policy, “[t]he role of [a court] is to apply the statute as it is written.”
Burrage v. United States, 134 S. Ct. 881, 892 (2014) . . . “If changes
in a law are desirable from a standpoint of policy or mere
practicality, it is for the legislature to enact them, not for the court
. . . .” U.S. Jaycees v. Iowa Civil Rights Comm’n, 427 N.W.2d 450,
455 (Iowa 1988).
In re Prop. Seized for Forfeiture from Thao, No. 14–1936, 2016 WL 1130280, at *9
(Iowa Ct. App. Mar. 23, 2016) (alterations and second omission in original).
IV. Conclusion.
The unambiguous words of Iowa Code section 147.140 required the Estate
to serve a certificate of merit affidavit. The Estate did not. So the district court
was right to dismiss the Estate’s case, and the court of appeals was right to
affirm. We should affirm both courts. I respectfully dissent from part III.B.1–3 of
the majority opinion, the reversal of the district court judgment, and the partial
reversal of the court of appeals decision.
McDermott, J., joins this concurrence in part and dissent in part.