IN THE COURT OF APPEALS OF IOWA
No. 20-1228
Filed November 3, 2021
JACQUELINE STRUCK,
Plaintiff-Appellant,
vs.
MERCY HEALTH SERVICES, IOWA CORP. a/k/a MERCY MEDICAL CENTER,
SIOUX CITY, RODNEY J. DEAN, M.D., ALBERT OKINE, P.A., and EILEEN
MIDDLETON, P.A.,
Defendants-Appellees,
and
JEREMY J. VANDE ZANDE, M.D. and ROBBIE L. ROBINSON, NP,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Zachary
Hindman, Judge.
Jacqueline Struck appeals the dismissal of her personal injury action.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Thomp J. Pattermann of Law Office of Gallner & Pattermann, P.C., Council
Bluffs, for appellant.
Frederick T. Harris of Lamson Dugan & Murray, LLP, Omaha, Nebraska, for
appellee Mercy Health Services-Iowa Corp. Sioux City a/k/a Mercy Medical
Center.
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John C. Gray of Heidman Law Firm, P.L.L.C., Sioux City, for appellees
Rodney J. Dean, M.D., Albert Okine, P.A., and Eileen Middleton, P.A.
Heard by Bower, C.J., Greer, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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DANILSON, Senior Judge.
Jacqueline Struck appeals the district court’s order granting the defendants’
motions to dismiss her personal injury action for failure to file expert witness
certificate of merit affidavits pursuant to Iowa Code section 147.140 (2020). Struck
challenges the court’s determination that expert testimony was necessary to
establish a prima facie case for “all [her] claims.” Upon our review, we agree the
petition is broad enough to encompass ordinary negligence claims against Mercy
Medical Center (Mercy) not requiring a certificate of merit affidavit, and such claims
should not have been dismissed. Thus, we affirm in part, reverse in part, and
remand.
I. Background Facts and Proceedings
In January 2018, Struck was a patient at Mercy when she “fell” and
sustained injuries. Two years later, Struck initiated this action against Mercy and
various medical professionals (physician Rodney Dean1; physician assistants
Albert Okine and Eileen Middleton; and nurse practitioner Robbie Robinson)
employed by Mercy, for damages arising from the fall, claiming she was improperly
medicated and supervised. The defendants moved to dismiss Struck’s claims for
failure to file a certificate of merit affidavit as required by Iowa Code section
147.140. Struck resisted and requested an extension of the deadline. Following
a hearing, the district court entered an order dismissing Struck’s petition with
prejudice. Struck appeals.
1Struck also named physician Jeremy Vande Zande as a defendant, but she later
dismissed her claims against Dr. Vande Zande.
4
II. Standard of Review
We review dismissals for correction of legal error. Benskin, Inc. v. W. Bank,
952 N.W.2d 292, 298 (Iowa 2020). In doing so, we accept as true the factual
allegations set forth in the petition but not its legal conclusions. See id. A motion
to dismiss is granted only when there are no conceivable state of facts under which
the nonmoving party would be entitled to relief. Mormann v. Iowa Workforce Dev.,
913 N.W.2d 554, 565 (Iowa 2018). We also review questions of statutory
interpretation for correction of legal error. Doe v. State, 943 N.W.2d 608, 609 (Iowa
2020).
III. Analysis
Iowa Code section 147.140 requires a plaintiff who alleges “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,” to file within sixty days of the defendant’s answer “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).
Failure to substantially comply with this requirement “shall” lead to “dismissal with
prejudice of each cause of action as to which expert witness testimony is
necessary to establish a prima facie case.” Id. § 147.140(6).
On appeal, Struck challenges the court’s finding that all her “possible
negligence claims” “relied upon professional negligence.” In other words, Struck
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contends the court’s ruling “incorrectly presupposes” that all her claims required
expert testimony to establish a prima facie case.
Struck’s petition alleged: “Defendant Mercy Medical Center was negligent
in hiring and retaining Rodney Dean, MD, Albert Okine, PA, Robbie Robinson, NP
and Eileen Middleton, PA and non-party staff who were individually and jointly
responsible for her care and treatment”; “The professional negligence of [the
Defendants] was a violation of an acceptable standard of care”; and “As a direct
and proximal result of the negligence of the Defendants, . . . the Plaintiff
subsequently suffered and suffers from injuries and damages associated with the
aforementioned acts of negligence.” At hearing on the defendants’ motions to
dismiss, Struck’s counsel claimed a certificate of merit affidavit was not required
“on those claims, the ones regarding negligence,” arguing they “would not be
normally the opinion of an expert.”
The district court determined that a certificate of merit affidavit was required
with regard to both “categories” of claims raised in Struck’s petition, those with
regard to all defendants (professional negligence) and those with regard to only
Mercy (negligent hiring and retention). And because Struck failed to file a
certificate of merit affidavit in support of her claims within sixty days after the
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defendants filed answers,2 the court concluded all of her claims should be
dismissed with prejudice.
Our interpretation of section 147.140(1) requires “any action” that “includes
a cause of action for which expert testimony is necessary to establish a prima facie
case” is subject to the certificate-of-merit requirement. Struck concedes the court
properly dismissed her professional negligence claims “for failure to substantially
comply with [section] 147.140.”3 At oral argument, Struck acknowledged her only
remaining viable claims are against Mercy, relating to ordinary negligence not
requiring expert testimony.
Indeed, only a cause of action subject to the certificate-of-merit requirement
is subject to dismissal as provided in Iowa Code section 147.140(6). The district
court found, “[R]egardless of how Struck has chosen to label her claims against
Defendant Mercy—as professional negligence through respondeat superior; as
negligent hiring, or as negligent retention—all of her claims, given their factual
bases, require application of the modified duty applicable to medical
2 On appeal, Struck abandons her claim that the sixty days under section 147.140
was not triggered because not all the defendants had been served and filed
answers.
3 Upon our review, we conclude the district court correctly applied the law in
concluding the requirements of section 147.140 applied to Struck’s claims of
professional negligence and that Struck failed to substantially comply with those
requirements. We affirm the court’s order granting the defendants’ motions to
dismiss the claims of professional negligence of the health care providers. See
Schmitt v. Floyd Valley Healthcare, No. 20-0985, 2021 WL 3077022, at *3 (Iowa
Ct. App. July 21, 20201); McHugh v. Smith, ___ N.W.2d ___, ___, 2021 WL
1016596, at *6 (Iowa Ct. App. 2021); see also Schneider v. Jennie Edmundson
Mem’l Hosp., No. 19-1642, 2021 WL 1016599, at *2–3 (Iowa Ct. App. Mar. 17,
2021) (discerning no abuse of discretion in the district court’s refusal to find good
cause to grant the plaintiff’s motion for extension of time to file certificate of merit
affidavit and affirming the dismissal of the plaintiff’s case).
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professionals.” Cf. Schmitt, 2021 WL 3077022, at *2 (“The district court
determined that all but one of the Schmitts’ claims require expert witness testimony
on the question of standard of care. And although it found that one claim arguably
fell under the category of ‘nonmedical, administrative, ministerial, or routine care’
and for which the jurors were capable of comprehending and drawing correct
conclusions about the standard of care . . . , the court held causation still required
expert testimony. Despite the Schmitts’ claims that the breach of the standard of
care is so clear as to be obvious to a layperson, we find no error in the legal
conclusion that expert witness testimony is necessary to establish a prima face
case on each of the Schmitts’ medical malpractice claims.”). The district court
determined a certificate of merit affidavit was required for Mercy because Struck
sought to recover in an action (1) “for personal injury”; (2) “against a health care
provider”4; (3) ”based upon . . . alleged negligence in the practice of that . . .
occupation”; and (4) that “includes a cause of action for which expert testimony is
necessary to establish a prima facie case.” Accord Iowa Code § 147.140(1)(a);
see Uniform Jury Instruction No. 703.5 (setting forth the elements of a claim of
negligent hiring as requiring in part that “[t]he (employee’s) [incompetence]
[unfitness] [dangerous characteristics] was a cause of damage to the Plaintiff”);
Godar v. Edwards, 588 N.W.2d 701, 709 (Iowa 1999) (observing that a claim of
negligent hiring “likewise includes an action for negligent retention and negligent
supervision”); see also Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393,
4 See Iowa Code § 147.136A(1)(a) (defining health care provider).
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402 (Iowa 2017) (noting that expert witness testimony is ordinarily required to
establish the applicable standard of care and its breach).
A hospital may, however, face both claims of professional negligence and
ordinary negligence. Iowa cases have noted the distinction and applicable
standard of care, as aptly summarized in Morton v. Fort Madison Community
Hospital as follows:
When a hospital is sued for negligence in respect to its “professional
activities” the standard of care is “the care which is exercised by
hospitals generally.” Kastler v. Iowa Methodist Hosp., 193 N.W.2d
98, 101 (Iowa 1971) (citing Dickinson v. Mailliard, 175 N.W.2d 588,
596 (Iowa 1970)). To establish the standard of care for professional
activities, expert testimony is required. Id. at 102. The standard of
care is different, however, when a negligence claim is based on the
hospital’s “nonmedical, administrative, ministerial, or routine care.”
Id. The applicable standard of care in these circumstances is “such
reasonable care as the patient’s known condition may require.” Id.
at 101. Expert testimony is unnecessary in these situations. Id. at
102.
No. 309CV00179HDVTJS, 2010 WL 11561523, at *2 (S.D. Iowa Sept. 22, 2010)
(interpreting Iowa cases). Although subsequent to Kastler, our supreme court
noted that although acts may “on the surface appear to have been ministerial and
thus subject to a standard of proof not requiring expert testimony,” “special
circumstances” may require expert testimony. Thompson v. Embassy Rehab. &
Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000).
Here, Struck argues that because her petition alleges “possible acts of
general negligence,” including premises liability and lack of supervision by non-
professional staff of Mercy that would not require expert testimony, these claims
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should not have been dismissed. Accordingly, we must consider the contents of
the petition and the applicable principles.
In reviewing a petition, and in the absence of specific objection, it must be
“liberally construed in order to effectuate justice and the pleader will be accorded
the advantage of every reasonable intendment, even to implications necessarily
inferred.” Wenndt v. LaTare, 200 N.W.2d 862, 870 (Iowa 1968) (citing Coleman v.
Hall, 161 N.W.2d 329, 332 (Iowa 1968)). “If the prima facie elements of the claim
are stated, and this statement is fair notice to a defendant, the petition is sufficient.”
Lamantia v. Sojka, 298 N.W.2d 245, 247 (Iowa 1980). Iowa Rule of Civil
Procedure 1.403(1) requires the petition to include “a short and plain statement of
the claim showing that the pleader is entitled to relief and a demand for judgment
for the type of relief sought.”
Moreover, our caselaw has long held that a petition is not required to identify
a specific legal theory. See Soike v. Evan Matthews and Co., 302 N.W.2d 841,
842 (Iowa 1981) (concluding that requiring a plaintiff to identify a specific legal
theory is inconsistent with the concept of notice pleading). Our supreme court has
also stated in reference to the advent of notice pleading, “disposition of
unmeritorious claims in advance of trial must now ordinarily be accomplished by
other pretrial procedures which permit narrowing of the issues and piercing of the
bare allegations contained in the petition.” Haupt v. Miller, 514 N.W.2d 905, 909
(Iowa 1994) (quoting Am. Nat’l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986)).
Although many allegations in Struck’s petition are couched in terms of
professional duties and the breach of those duties, the well-pled facts reflect the
incident that gives rise to her claim for relief. The petition first explains the injuries
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arose from a “slip and fall” incident. Secondly, it alleges that while hospitalized,
“Struck was suffering from dizziness and lightheadedness upon standing and fell
and struck her chin on the floor resulting in a laceration.” The petition further
alleges that “[a]s a direct and proximate result of the negligence of the Defendants,
Plaintiff Jacqueline Struck has sustained severe and permanent injuries.” The
petition also alleges negligence by “non-party staff.” We conclude the petition’s
allegations provide fair notice of a claim or claims against the hospital in addition
to the professional negligence claims against the medical professionals and
constitute a plain statement that Struck is entitled to relief. The question thus
becomes whether Struck’s petition includes a claim or claims of ordinary
negligence not requiring expert testimony.
We acknowledge a slip and fall in a hospital may be subject to a claim of
either professional negligence or ordinary negligence. One court observed, “[t]he
mere fact that a patient falls in a hospital will not normally determine whether expert
testimony is called for in a given case. Some fall cases require expert testimony;
others do not.” Washington Hosp. Ctr. v. Martin, 454 A.2d 306, 309 (D.C. 1982).
And as we have noted, our supreme court has concluded that special
circumstances may exist that require expert testimony even though the acts may
“on the surface appear to have been ministerial.” Thompson , 604 N.W.2d at 646.
The distinctions between the two in a hospital setting, and varied court decisions,
were elaborated upon in a dissenting opinion in Ditch v. Waynesboro Hospital, 17
A.3d 310, 311 (Pa. 2011) (Todd, J., dissenting) (observing a “gray area of how to
define the distinction between ordinary negligence and professional negligence in
this context” of whether a certificate of merit must be filed, and opining that “a
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cause of action based in ordinary negligence” would “not require[] a certificate of
merit”). A review of Iowa appellate decisions provides additional examples of fact
scenarios, some requiring expert testimony, and others that did not require expert
testimony, for example Kastler, 193 N.W.2d at 101–02 (expert not required where
patient who suffered from dizziness fell in the shower), and Thompson, 604
N.W.2d at 646 (expert required where patient suffered from bedsore for failure to
properly position patient at care facility).5
Our legislature has adopted a method to quickly dismiss a claim of
professional negligence or any claim requiring expert testimony to establish a
prima facie case if a proper certificate of merit affidavit is not filed prior to the
commencement of discovery and within sixty days of the defendant’s answer. See
Iowa Code § 147.140(1)(a), (6). The difficulty is we are not resolving a motion for
summary judgment but rather a motion to dismiss before all the issues can be
more clearly defined.6 Moreover, we decline to attempt to “narrow the issues” or
“pierce” the allegations in the petition to prejudge whether Struck has any
remaining negligence claim not requiring expert testimony to establish a prima
facie case. To effectuate justice and give the pleader the advantage of all
reasonable intendments, we conclude the order dismissing all claims against
5 A complete review of our appellate decisions does not aid in the resolution of
whether an expert is required here because Struck’s petition provides insufficient
details regarding Struck’s fall to determine if an expert is required.
6 Accordingly, our ruling is limited to facts alleged in the petition; additional facts
will come to light in later proceedings.
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Mercy was in error and Struck’s claim or claims of negligence of premises liability
and negligence of non-professional staff against Mercy remain viable.
If the district court determines after remand, and after the facts supporting
the surviving claims are fleshed out, that a claim requires expert testimony, then
the court should dismiss it as Struck did not challenge on appeal the district court’s
conclusion that she failed to timely file a certificate of merit.7 Struck concedes, and
we affirm, the dismissal of all claims against all the remaining defendants. We also
affirm the dismissal of any claims against Mercy relating to the negligent hiring,
retention, or supervision of professional staff as such claims would require expert
testimony. Accordingly, we affirm in part but reverse the dismissal of any claim or
claims of ordinary negligence against Mercy.8
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
7 There is a distinction between the use of expert testimony and whether expert
testimony is essential to establish a prima facie case. See Davis v. Montgomery
Cnty. Mem’l Hosp., No. 05-0865, 2006 WL 1896217, at *3–4 (Iowa Ct. App. July
12, 2006) (citing Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 142 (Iowa
Ct. App. 1993)).
8 Struck’s counsel advised during oral arguments her claim includes premises
liability and negligent hiring, retention, and supervision of non-professional staff.