The Estate of Fahrmann v. ABCM Corp.

• Docket Number: 22-0495
• Decision Date: 22 December 2023
• Parties: The Estate of Deanna Dee Fahrmann, by Executor Jeffrey A. Fahrmann, Dennis C. Fahrmann, by and through his Power of Attorney, Jeffrey A. Fahrmann, Jeffrey A. Fahrmann, and Amy J. Fahrmann, Appellants, v. ABCM Corporation, Kathy Meyer-Allbee, and Linsey Henry, Appellees.
• Court: Iowa Supreme Court

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The Estate of Deanna Dee Fahrmann, by Executor Jeffrey A. Fahrmann, Dennis C. Fahrmann, by and through his Power of Attorney, Jeffrey A. Fahrmann, Jeffrey A. Fahrmann, and Amy J. Fahrmann, Appellants,
v.
ABCM Corporation, Kathy Meyer-Allbee, and Linsey Henry, Appellees.

No. 22-0495

Supreme Court of Iowa

December 22, 2023

Submitted November 15, 2023

Appeal from the Iowa District Court for Franklin County, Gregg R. Rosenbladt, Judge.

Plaintiffs appeal the district court judgment dismissing their medical malpractice action with prejudice for noncompliance with the certificate of merit requirement in Iowa Code section 147.140. Affirmed.

Laura R. Luetje and William C. Strong of Lamberti, Gocke &Luetje, P.C., Ankeny; and Bradley C. Obermeier of Obermeier and McBride, P.C., Grimes, for appellants.

Tricia Hoffman-Simanek, Ross T. Andrews, and Graham R. Carl of Shuttleworth &Ingersoll, P.L.C., Cedar Rapids, for appellees.

Waterman, J., delivered the opinion of the court, in which all participating justices joined. Oxley, J., took no part in the consideration or decision of the case.

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WATERMAN, JUSTICE.

In this appeal, we must decide whether the district court correctly applied Iowa Code section 147.140 (2021) to dismiss this nursing home malpractice action with prejudice. This statute required the plaintiffs to serve a certificate of merit affidavit signed under oath by a qualified expert within sixty days of the defendants' answer. The plaintiffs failed to timely serve such a certificate or request an extension to do so but did serve initial disclosures, signed by counsel alone, that named their expert within the statutory sixty-day deadline. The defendants filed a motion to dismiss for noncompliance with section 147.140. The plaintiffs only then filed a certificate signed by their expert and resisted the motion, arguing they substantially complied with the statute and, alternatively, that the defendants waived the certificate of merit requirement by commencing discovery. The district court rejected those arguments and dismissed the action based on the mandatory language of the statute. The plaintiffs appealed, and we retained the case.

On our review, we hold that the district court correctly applied section 147.140 to dismiss this action with prejudice. The statute unambiguously required the plaintiffs to timely serve the certificate of merit affidavit signed under oath by a qualified expert stating the expert's familiarity with the applicable standard of care and its breach by the defendants unless the parties extended the deadline by agreement or the plaintiffs, with good cause shown, moved for an extension within the sixty-day deadline. The plaintiffs' initial disclosure signed only by counsel did not comply or substantially comply with section 147.140. The defendants never agreed to extend the sixty-day deadline, nor did the plaintiffs file a timely motion to extend it for good cause. Dismissal was mandatory under the plain language of the statute. A contrary

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holding would defeat the legislature's requirement for early dismissal of medical malpractice actions lacking the requisite expert certification.

I. Background Facts and Proceedings.

According to the petition in this action, in 2019, Deanna Dee Fahrmann, age 74, was residing at the Rehabilitation Center of Hampton, operated by ABCM Corporation. She had been married to Dennis C. Fahrmann for forty-three years. They had two adult children, Jeffrey A. Fahrmann and Amy J. Fahrmann. Deanna's family expressed concern to the nursing home's staff in September that she "had fallen from a remote-control operated chair on at least one occasion, causing minor injury, and that they did not feel that it was safe to allow her continued unrestricted and unsupervised access to the chair and remote control in her room." On October 5, she fell from the chair again, this time suffering severe injuries, resulting in her death a month later.

On June 7, 2021, her estate and surviving family members filed this wrongful-death action against ABCM and two of its employees, Kathy Meyer-Allbee and Linsey Henry, alleging tort claims arising from their care and treatment of Deanna. The plaintiffs do not dispute that Iowa Code section 147.140 applies to all their claims.

The defendants timely filed their answer on July 19, triggering the plaintiffs' statutory sixty-day deadline to serve certificate of merit affidavits signed by a qualified expert by September 17. The plaintiffs served no certificate of merit affidavit by that date, nor did they seek or obtain an agreed extension or file a motion to extend that deadline. Instead, on September 1, they served initial disclosures signed only by counsel that included this paragraph in the section listing persons with knowledge supporting their claims:

4. Bruce Naughton, MD, 80 Depew Avenue, Buffalo, NY 14214 Dr. Naughton may be contacted through counsel

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Dr. Naughton will provide expert testimony and opinions as to the cause of the injuries and cause of death of M[r]s. Fahrmann, the appropriate standard of care for Mrs. Fahrmann's care and treatment while a resident of the defendant entity, the damages suffered by Mrs. Fahrmann, the violations of any applicable rules, standards, or obligations of the defendant entity, and any and all other facts and opinions which have a bearing on this case and which are within his purview as an expert witness.

On October 28, the defendants moved to dismiss the petition under Iowa Code section 147.140(6) based on the plaintiffs' failure to serve any certificate of merit affidavit signed by a qualified expert. The next day, the plaintiffs served a certificate of merit signed under oath by Dr. Naughton, forty-two days after the statutory deadline. On November 5, the plaintiffs filed a resistance to the motion to dismiss, arguing that the defendants waived the certificate of merit requirement by serving discovery and that...