UPDATES & ANALYSIS

12.28

Iowa Supreme Court clarifies statutory “certificate of merit” requirements for medical malpractice suits

by Rox Laird | December 28, 2023

Iowa law requires that a party bringing a malpractice action against a health care provider provide defendants with an expert witness affidavit regarding the alleged breach of the applicable medical standard of care, referred to as a “certificate of merit”. In three decisions handed down Dec. 22, the Iowa Supreme Court clarified its interpretation of what the Legislature meant in the statutory language establishing the certificate of merit requirement.

Two of the decisions addressed the same question: Is a licensed physician who has retired from active practice eligible to provide an affidavit regarding an alleged standard-of-care violation? The answer is no, the Court held in Hummel v. Smith and Tri-State Specialists, and in the related appeal, Hilts v. Smith and Tri-State Specialists.

The Hummel decision was written by Justice Edward Mansfield and joined in full by all members of the Court except Justice Matthew McDermott, who filed a special concurring opinion joined by Justice David May, and who joined Justice Mansfield’s opinion in part. In the Hilts ruling, the Court, in a per curiam opinion, announced the same conclusion, citing Hummel.

The question in the third decision, Fahrmann v. ABCM Corp., was whether plaintiffs bringing a medical malpractice action substantially complied with the notice requirement even though the certificate of merit signed by their expert witness was provided to defendants 42 days after the statutory deadline. The Court in this decision, written by Justice Thomas Waterman joined by all justices except Justice Dana Oxley who did not participate in the case, said the plaintiff did not substantially comply with the statutory deadline.

In the Hummel case, the plaintiff submitted a certificate of merit affidavit signed in 2020 by a physician licensed to practice in New York and New Jersey, but the physician had retired in 2019 from clinical practice of medicine while retaining his license in both states.

Iowa Code section 147.139, as amended by the Iowa Legislature in 2017, requires, among other things, that to qualify as an expert witness and to testify on the appropriate standard of care, the prospective witness must be “licensed to practice in the same or a substantially similar field as the defendant” and in the five years preceding the alleged malpractice have actively practiced in that field.

The plaintiff’s doctor would clearly have qualified as an expert in 2018, the Court said, so the “fighting issue in this case” is whether he “was ‘licensed to practice’ in 2020, notwithstanding his retirement and the inactive and retired status of his licenses.”

Based on its analysis of the language of the statute – and the explanation in the legislative history of the 2017 amendment – the Court concluded that “‘license to practice’ as used in section 147.139(1) requires that the expert currently possess a license that authorizes practice.”

It is not disputed that the proposed expert witness in this case was “licensed” in New York and New Jersey when he signed the certificate of merit affidavit, the Court said, but because both his New York and New Jersey licenses had become “inactive” or “retired,” he was no longer authorized to practice medicine in either state.

Plaintiff Renee Hummel argued that she substantially complied with the relevant statutory requirements, but the Court disagreed, saying, “we do not believe that an affidavit from a physician who retired in 2019 and took inactive or retired status at that time amounts to substantial compliance.”

In his special concurring opinion, Justice McDermott took exception to the majority’s reliance on legislative history in its analysis of the statute.

“I join today’s opinion except for the part that ventures into legislative history,” McDermott wrote. “The majority correctly construes the statute’s use of ‘license to practice’ in Iowa Code [section] 147.139(1) as requiring that the expert currently possess a license that authorizes practice in the defendant’s field. But while applying valid canons of statutory construction on its analytical path, the majority takes an ill-advised detour to evaluate the legislative history of the statute, citing the ‘bill explanation’ that initially accompanied the legislation. This digression into the legislative history is unnecessary and, in fact, undermines the majority’s otherwise rigorous textual analysis.”

While a preamble and bill explanation are attached to a bill when introduced, neither is voted on by legislators and do not become part of statutory law, McDermott noted, and the Court should look for the meaning of a statute’s actual text, not the intent of the Legislature.

 

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The Iowa Supreme Court entered opinions in eighteen cases during February 2024. You can read Rox Laird’s analysis of Singh v. McDermott, Selden v. DMACC, and Senator Roby Smith et al. v. Iowa District Court for Polk County. The remaining opinions from February are summarized here.

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