Kirlin v. Monaster, 22-0405

• Court: United States State Supreme Court of Iowa
• Writing for the Court: OXLEY, JUSTICE.
• Parties: JAHN PATRIC KIRLIN and SARA LOUISE KIRLIN, Appellants, v. BARCLAY A. MONASTER, CHRISTIAN WILLIAM JONES, and PHYSICIANS CLINIC, INC. d/b/a METHODIST PHYSICIANS CLINIC-COUNCIL BLUFFS, Appellees.
• Docket Number: 22-0405
• Decision Date: 06 January 2023

JAHN PATRIC KIRLIN and SARA LOUISE KIRLIN, Appellants,
v.
BARCLAY A. MONASTER, CHRISTIAN WILLIAM JONES, and PHYSICIANS CLINIC, INC. d/b/a METHODIST PHYSICIANS CLINIC-COUNCIL BLUFFS, Appellees.

No. 22-0405

Supreme Court of Iowa

January 6, 2023

Submitted November 16, 2022

Appeal from the Iowa District Court for Pottawattamie County, Michael Hooper, Judge.

Plaintiffs in a medical malpractice action appeal from the district court's grant of summary judgment for the defendants.

Kelly N. Wyman (argued), Council Bluffs, and Dean T. Jennings, Council Bluffs, for appellants.

Bryony J. Whitaker (argued), Frederick T. Harris, and Agnieszka M. Gaertner (until withdrawal) of Lamson Dugan & Murray LLP, West Des Moines, for appellee Barclay A. Monaster.

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Robert A. Mooney (argued) and Betsy Seeba-Walters of Mooney, Lenaghan, Westberg Dorn, L.L.C., Omaha, Nebraska, for appellees Christian William Jones and Physicians Clinic, Inc. d/b/a Methodist Physicians Clinic-Council Bluffs.

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OXLEY, JUSTICE.

This case raises questions about the interplay between the plaintiffs' right to voluntarily dismiss their own petition under Iowa Rule of Civil Procedure 1.943 and the requirement for a plaintiff in a medical malpractice action to provide a certificate of merit affidavit signed by a qualified expert witness within sixty days of the defendant's answer or face dismissal with prejudice under Iowa Code section 147.140(6) (2021). The plaintiffs timely filed a certificate of merit affidavit in their medical malpractice case but then voluntarily dismissed the case after the defendants challenged the qualifications of the expert witness who signed the affidavit. The plaintiffs then refiled their case and provided a certificate of merit affidavit signed by a different expert witness. The defendants argued the plaintiffs were bound by the purportedly deficient certificate of merit from the first case, and the district court agreed, granting summary judgment to the defendants in the second case.

We addressed related issues in another opinion filed today, Ronnfeldt v. Shelby County Chris A. Myrtue Memorial Hospital, ____ N.W.2d ____ (Iowa 2023), where we reaffirmed a plaintiff's right to voluntarily dismiss her medical malpractice case without prejudice under rule 1.943, even in the face of a pending motion seeking dismissal with prejudice under section 147.140(6). The question we must now answer is whether a plaintiff who files a noncompliant certificate of merit and then voluntarily dismisses the case is stuck with the certificate filed in the first case when bringing a second action. For the reasons stated below and in Ronnfeldt, we answer that question in the negative.

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I. Factual and Procedural History.

In the spring of 2019, Jahn Kirlin sought medical treatment for persistent pain in his head and neck. Dr. Christian Jones, of the Methodist Physicians Clinic-Council Bluffs, recommended Jahn take medications to manage his pain over the short-term and suggested an MRI could be necessary if his symptoms did not improve. Jahn's symptoms did not improve, and when he returned to receive further treatment, he was placed in Dr. Barclay Monaster's care. Dr. Monaster did not order an MRI, however, recommending instead that Jahn continue managing his pain as before. Jahn experienced a stroke soon after that visit.

On September 11, 2020, Jahn and his wife Sara (the Kirlins) filed their first petition against Dr. Jones, Dr. Monaster, and Methodist Physicians Clinic (the Defendants)^[1] alleging negligence and seeking compensation for Jahn's injuries and Sara's loss of consortium. The Kirlins timely filed a section 147.140 certificate of merit affidavit on October 2, signed by Dr. David Segal, a board-certified neurosurgeon.^[2] The Defendants challenged the certificate on the basis that Dr. Monaster is a family physician and Dr. Segal was not board-certified in family medicine. See Iowa Code §§ 147.139(1) (requiring the affiant to be "licensed to practice in the same or a substantially similar field as the

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defendant"), .139(3) ("If the defendant is board-certified in a specialty, the [affiant must be] certified in the same or a substantially similar specialty ...."), .140(1)(a) (requiring that the expert affiant "meet the qualifying standards of section 147.139"). Before the district court could issue a ruling on those motions, however, the Kirlins voluntarily dismissed their petition without prejudice under Iowa Rule of Civil Procedure 1.943.

The Kirlins refiled their petition on April 14, 2021, and provided a new certificate of merit signed by Dr. Brian Smith-board-certified in family medicine-who opined that each defendant in the second case breached the standard of care. The Defendants moved to dismiss the second case on the basis that the certificate of merit signed by Dr. Segal from the first case was deficient. The district court denied the Defendants' motions to dismiss because, at the pleadings stage, it could not consider facts outside the Kirlins' petition, including Dr. Segal's certificate of merit from the first case. The Defendants then filed answers and moved for summary judgment on the same bases as alleged in their motions to dismiss, again relying on their challenge to Dr. Segal's certificate of merit. The Defendants did not challenge whether Dr. Smith's certificate of merit affidavits complied with section 147.140. Their claim was limited to whether the certificate of merit affidavit the Kirlins filed in the first case entitled them to dismissal of the second case.

Now having the ability to consider filings outside of the petition, the district court granted the Defendants' motions for summary judgment. The district court first determined that it could consider the issue of statutory compliance from the

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first case by extending our holding in Darrah v. Des Moines General Hospital, 436 N.W.2d 53 (Iowa 1989), and characterizing the dismissal requirement in section 147.140 as a sanction. The district court took "the same stance with respect to enforcing sanctions after a voluntary dismissal [as Darrah] because without the authority to impose sanction[s], the rule effectively loses the teeth originally intended by the 'harsh consequence' of [section 147.140], the legislative intent as outlined in McHugh v. Smith, 966 N.W.2d 285 (Iowa Ct. App. Mar. 17, 2021)." After determining that the Kirlins' first certificate of merit did not substantially comply with section 147.140, the district court noted it would have been required to "dismiss the Plaintiffs['] claims with prejudice in the previous case had there been the procedure to address the enforcement of the sanction. Unfortunately, there is no procedure yet written that affords...