McHugh v. Adam B. Smith, M.D., & Tri-State Specialists, LLP
| Decision Date | 17 March 2021 |
| Docket Number | No. 20-0724,20-0724 |
| Citation | 966 N.W.2d 285 |
| Parties | Jessica MCHUGH, Plaintiff-Appellant, v. Adam B. SMITH, M.D., and Tri-State Specialists, LLP, Defendants-Appellees. |
| Court | Iowa Court of Appeals |
William J. Hale and Joel M. Carney of Goosmann Law Firm, PLC, Omaha, Nebraska, for appellant.
John C. Gray and Joel D. Vos of Heidman Law Firm, P.L.L.C., Sioux City, for appellees.
Heard by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
This appeal examines a new requirement imposed by our legislature for plaintiffs pursuing medical malpractice actions. Iowa Code section 147.140 (2017) requires plaintiffs to provide a certificate of merit affidavit signed by an expert witness early in their personal injury actions if they need expert testimony to prove their case. Jessica McHugh appeals a district court order dismissing her negligence suit against Dr. Adam B. Smith and his employer, Tri-State Specialists, LLP,1 for failing to clear that hurdle. She contends her initial disclosures and discovery responses substantially complied with the statute's requirements, so dismissal was improper. She also argues any lack of compliance should be excused because the requirement was new and the trial scheduling and discovery plan omitted the statutory deadline for submitting the expert's affidavit.2
Finding McHugh's actions did not substantially comply with the legislature's objectives in section 147.140, we affirm the district court.
In August 2017, Dr. Smith performed plastic surgeries
on McHugh. She faced complications with her recovery. Two years later, she sued Dr. Smith. She alleged his negligence caused her injuries that needed corrective medical care.
Dr. Smith answered on September 25. And the parties filed a joint trial scheduling and discovery plan in early November. By mid-November, they had exchanged initial disclosures. McHugh disclosed five doctors (along with Dr. Smith), including Dr. Heather Karu, who were "likely to have discoverable information" relevant to her claim. On November 21, Dr. Smith sent interrogatories and discovery requests to McHugh. At McHugh's request, Dr. Smith agreed to extend the response deadline by one month. Then, in January 2018, after McHugh responded, Dr. Smith moved to dismiss. He cited McHugh's failure to file a certificate of merit affidavit as required by section 147.140. McHugh resisted the motion and provided Dr. Karu's affidavit on February 7.
At a hearing on the motion to dismiss, McHugh argued that she had substantially complied with the certificate-of-merit-affidavit requirement. The court disagreed and dismissed McHugh's action with prejudice, the remedy provided in section 147.140(6). McHugh appeals.
We review dismissals for correction of legal error. Benskin, Inc. v. W. Bank , 952 N.W.2d 292, 298 (Iowa 2020). We follow that same standard when considering questions of statutory interpretation. Doe v. State , 943 N.W.2d 608, 609 (Iowa 2020).
One month before McHugh's surgery, new legislation went into effect, requiring plaintiffs claiming negligence against health care providers to serve a certificate of merit affidavit signed by a qualified expert. See 2017 Iowa Acts ch. 107, § 4 (). In deciding whether dismissal of McHugh's lawsuit was proper, our first stop is the legislative language. The opening paragraph describes the cases in which plaintiffs must provide a certificate, as well as the sixty-day deadline for compliance.
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.
The next paragraph specifies what the affidavit must include:
From there, the legislation clarifies that the affidavit "does not preclude additional discovery and supplementation of the expert witness's opinions in accordance with the rules of civil procedure." Id. § 147.140(2). Nor does section 147.140 supplant the requirements of Iowa Code section 668.11. Id. § 147.140(3). The statute allows for extending the sixty-day deadline, but only by agreement of the parties "or the court for good cause shown and in response to a motion filed prior to the expiration of the time limits." Id. § 147.140(4). As an example of "good cause," the statute offers "the inability to timely obtain the plaintiff's medical records from health care providers" when plaintiff has asked for the record before the petition. Id.
Finally, as the remedy for a plaintiff's failure to "substantially comply" with the certification-of-merit-affidavit requirement, upon a defendant's motion, the court must dismiss "with prejudice ... each cause of action as to which expert witness testimony is necessary to establish a prima facie case." Id. § 147.140(6).
This case marks the first opportunity of our appellate courts to address the sweep of section 147.140. To glean insight into the new legislation, both parties suggest we look at the operation of Iowa Code section 668.11.3 Section 668.11 requires parties in a professional-liability case, who intend to call an expert witness, to certify the expert's name and qualifications, as well as their purpose for calling the expert. See Iowa Code § 668.11(1).
Unlike the sixty-day deadline in the new legislation, the plaintiff has 180 days to comply with section 668.11(1)(a). Even under that longer timeline, our supreme court said section 668.11 was "designed to require a plaintiff to have his or her proof prepared at an early stage in the litigation" so that the defendant "does not have to spend time, effort and expense in defending a frivolous action." Hantsbarger v. Coffin , 501 N.W.2d 501, 504 (Iowa 1993). The remedy for the plaintiff's failure to comply was exclusion of the expert's testimony. Id. Thus, Hantsbarger decided that section 668.11 could be "properly classified as procedural or remedial rather than substantive" and should be "liberally interpreted to accomplish its purpose."4 Id.
Although not specifically addressed by the statute, Hantsbarger held substantial compliance was sufficient under section 668.11. Id. Hewing to that same line, the legislature built substantial compliance into section 147.140. See Iowa Code § 147.140(6). Substantial compliance means "compliance in respect to essential matters necessary to assure the reasonable objectives of the statute."5 Hantsbarger , 501 N.W.2d at 504 (quoting Superior/Ideal, Inc. v. Bd. of Rev. , 419 N.W.2d 405, 407 (Iowa 1988) ).
Against that backdrop, we turn to McHugh's argument that she substantially complied with section 147.140(1). The district court summarized her position:
[McHugh] contends that in light of the record as it currently exists in this case, i.e. the answers provided to [Smith's] discovery requests on January 20, 2020, and the Certificate of Merit Affidavit of Dr. Karu filed on February 7, 2020, that it is clear that [McHugh's] case is not frivolous. As a result [McHugh] asserts that she has substantially complied with the requirements of Section 147.140 and that the reasonable objectives of the statute have been satisfied. This, however, ignores the fact that the statutory deadline to comply was November 24, 2019, not January 20, 2020 or February 7, 2020.
The district court hypothesized that if McHugh had responded to Dr. Smith's discovery requests before the sixty-day deadline of November 24, "it could reasonably be argued that substantial compliance had occurred." But because McHugh did not provide discovery until 118 days after the answer and did not serve the certificate of merit affidavit for another eighteen days after that, she did not substantially comply with section 147.140(1).
Still, McHugh stresses that her certificate of merit affidavit, when finally filed, established that her claim was not frivolous. So, in her view, dismissal did not serve the statute's purpose to weed out frivolous suits. Essentially, no harm, no foul.
Indeed, the certificate showed that Dr. Karu, a plastic surgeon who performed revision surgeries on McHugh, was qualified and knowledgeable to testify on the applicable standard of care. Dr. Karu explained what procedures would be expected for the surgery Dr. Smith performed on McHugh. And Dr. Karu opined that Dr. Smith failed to conform to the standard of care for McHugh's surgery. We agree this information may have established that McHugh's claim was not frivolous had she timely submitted it.
But to gauge whether McHugh's actions constituted substantial compliance we must identify the legislature's purpose in enacting section 147.140. Given the statute's similarity to section 668.11, why did the legislature add the seemingly duplicative requirement of a certificate of merit affidavit? The district court explained, " Section 147.140 is more narrowly tailored to simply require the certificate of one expert ... to show that the plaintiff's claim at least has colorable merit." That explanation is a cogent rationale for the sixty-day...
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