Estate of Roberta Ann Butterfield by Bradley Dean Butterfield and Deanne Marie Rogers, Co-Adminstrators v. Chautauqua Guest Home, Inc. d/b/a Chautauqua Guest Home 3 and Chautauqua Guest Homes

IN THE SUPREME COURT OF IOWA

No. 22–0101

Submitted January 18, 2023—Filed March 17, 2023

ESTATE OF ROBERTA ANN BUTTERFIELD by BRADLEY DEAN
BUTTERFIELD and DEANNE MARIE ROGERS, Co-Administrators,

Appellants,

vs.

CHAUTAUQUA GUEST HOME, INC. d/b/a CHAUTAUQUA GUEST HOME #3
and CHAUTAUQUA GUEST HOMES,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland,

Judge.

The supreme court reviews a court of appeals decision affirming the

dismissal of a medical malpractice lawsuit with prejudice for failing to comply

with the Iowa Code section 147.140(1)(a) certificate of merit affidavit

requirement. DECISION OF COURT OF APPEALS VACATED IN PART;

DISTRICT COURT JUDGMENT REVERSED IN PART AND REMANDED.

Christensen, C.J., delivered the opinion of the court, in which Waterman,

Mansfield, McDonald, and Oxley, JJ., joined. May, J., filed a dissenting opinion,

in which McDermott, J., joined.
 2

Jeffrey A. Pitman (argued) of Pitman, Kalkhoff, Sicula & Dentice, S.C.,

Milwaukee, Wisconsin, and John T. Hemminger of Law Offices of John T.

Hemminger, Des Moines, for appellant.

Joseph D. Thornton (argued) of Smith Peterson Law Firm, LLP, Council

Bluffs, for appellees.
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CHRISTENSEN, Chief Justice.

In this medical malpractice case, a decedent’s estate brings suit against a

nursing home, alleging various omissions and failures. Although the estate filed

suit in a timely manner, it did not serve a certificate of merit affidavit on the

defendants. Consequently, the nursing home moved to dismiss the claims

against it with prejudice, as provided under Iowa Code section 147.140 (2021).

In response, the estate argued the certificate of merit was unnecessary because

that requirement does not apply to plaintiffs who need experts solely for

causation (as opposed to the standard of care or breach). The district court

disagreed and dismissed all of the estate’s claims. The court of appeals affirmed.

Upon review, we reverse the court of appeals in part and conclude the

certificate of merit requirement does not apply to the plaintiffs who need experts

solely for causation. With respect to the remaining issues on appeal, we let the

court of appeals decision stand. Because it is not clear which of the plaintiff’s

claims needed an expert only to establish causation and were therefore not

subject to the certificate of merit requirement, we also remand this case to the

district court to determine which of the plaintiff’s claims survive the failure to

file the certificate of merit.

I. Background Facts and Proceedings.

The well-pleaded facts of this case center on injuries that Roberta

Butterfield allegedly sustained in the care of Chautauqua Guest Home, Inc., a

skilled nursing facility. Butterfield resided at Chautauqua, starting in

October 26, 2017. On May 19, 2018, almost exactly one year before her death,
 4

Butterfield’s leg popped while Chautauqua caretakers were transferring her from

the bathroom to a wheelchair. Six days later, Chautauqua transferred Butterfield

to the hospital, where she was diagnosed with a left hip fracture. The fracture

required surgery, which was performed on May 27.

Butterfield returned to Chautauqua on June 1. At that time, she did not

suffer from any pressure injuries or skin problems. For the next several months,

Butterfield spent a significant amount of time in bed. By January 10, 2019, a

blister had developed on Butterfield’s left buttock. It measured about 0.8

centimeters by 1 centimeter. By February 28, the blister had grown to about 2.8

centimeters by 3 centimeters by 1.8 centimeters. By April 3, the blister was 7.5

centimeters by 2 centimeters by 4 centimeters. Sometime between February and

April, the blister became infected and started to emit a foul odor. Butterfield died

on May 18.

About a year later, on April 20, 2020, Butterfield’s estate (the Estate) filed

the medical malpractice lawsuit on appeal here. Chautauqua answered on

May 21. The parties agreed to a discovery plan on June 15, which the district

court approved on June 16. The parties submitted initial disclosures during July

and continued conducting discovery for the next year. Then, on July 16, 2021,

Chautauqua filed a motion to dismiss with prejudice pursuant to Iowa Code

section 147.140. The district court conducted a hearing on August 31, which

resulted in an order sustaining the motion to dismiss. After the district court

rejected the Estate’s motion to reconsider, the Estate appealed. We transferred
 5

that appeal to the court of appeals, which affirmed the district court. The Estate’s

request for further review was granted.

II. Standard of Review.

Under Iowa Code section 147.140, “[w]e review both a motion to dismiss

and a district court’s statutory construction for correction of errors at law.”

Ronnfeldt v. Shelby Cnty. Chris A. Myrtue Mem’l Hosp., 984 N.W.2d 418, 421

(Iowa 2023) (citing Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533,

538 (Iowa 2022)).

III. Analysis.

In this case, the Estate principally argues that its petition should not have

been dismissed because Iowa Code section 147.140 does not apply. On that

point, we reverse the court of appeals in part and find that the district court

properly dismissed any claims for which the Estate needed expert testimony

about the standard of care or breach. We also find that it erred by dismissing

claims for which the Estate did not need an expert for standard of care or breach.

We let the court of appeals decision stand on the Estate’s remaining attempts to

avoid the certificate of merit requirement, including its litigation waiver,

substantial compliance, and contract-based arguments. See Farnsworth v. State,

982 N.W.2d 128, 135 (Iowa 2022).

A. The New Requirements in Iowa Code Section 147.140. Before our

analysis of the merits, we review the pertinent provisions of section 147.140.

Iowa Code section 147.140, which was enacted in 2017, established new

procedural requirements for plaintiffs in some medical malpractice lawsuits. See
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2017 Iowa Acts ch. 107, § 4 (codified at Iowa Code § 147.140(1)(2018)); Struck,

973 N.W.2d at 538. Pursuant to this section, the new requirements apply to

personal injury or wrongful-death actions against medical professionals,

including “cause[s] of action for which expert testimony is necessary to establish

a prima facie case.” Iowa Code § 147.140(1)(a).

According to these requirements, plaintiffs must serve the defendant with

a certificate of merit, which is “an affidavit signed by an expert witness stating

the appropriate standard of care and its alleged breach.” Morrow v. United States,

47 F.4th 700, 702–03 (8th Cir. 2022); see also Iowa Code § 147.140(1)(a)–(b).

Plaintiffs must serve the certificate within sixty days of the defendant’s answer.

Morrow, 47 F.4th at 702–03; see also Iowa Code § 147.140(1)(a).

Importantly, noncompliance carries a “harsh” consequence. McHugh v.

Smith, 966 N.W.2d 285, 289 (Iowa Ct. App. 2021). The statute provides for

dismissal with prejudice “upon motion” of the causes of action that require

expert testimony if a plaintiff fails to substantially comply with the certificate of

merit requirement. Iowa Code § 147.140(6) (“Failure to substantially comply with

subsection 1 shall result, upon motion, in dismissal with prejudice of each cause

of action as to which expert witness testimony is necessary to establish a prima

facie case.”).

We have previously explained that section 147.140 “is meant to end cases

early (sixty days after the answer) when expert testimony is required.” Struck,

973 N.W.2d at 542. The statute is also designed “to ‘identify and weed non-

meritorious malpractice claims from the judicial system efficiently and
 7

promptly,’ ” id. (quoting Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006)), and

“deter . . . frivolous actions . . . to thereby reduce the cost of medical malpractice

litigation and medical malpractice insurance premiums,” id. (quoting Rabinovich

v. Maimonides Med. Ctr., 113 N.Y.S.3d 198, 201 (App. Div. 2019)).

B. Whether a Certificate of Merit Affidavit Is Required in This Case.

The Estate’s primary argument is that the certificate of merit requirement does

not apply in this case because an expert is not necessary to establish the

elements of its prima facie case. Chautauqua, in turn, contends that all elements

of the Estate’s claims depend on medical judgment and therefore require experts,

triggering the certificate of merit requirement.

1. Relevant principles of statutory interpretation. “As with all cases involving

statutory interpretation, we start with the language of the statute to determine

what the statute means.” Beverage v. Alcoa, Inc., 975 N.W.2d 670, 680 (Iowa

2022). When a statute’s text and meaning is clear, “we will not search for a

meaning beyond the express terms of the statute or resort to rules of

construction.” Com. Bank v. McGowen, 956 N.W.2d 128, 133 (Iowa 2021)

(quoting In re Est. of Voss, 553 N.W.2d 878, 880 (Iowa 1996)). “However, ‘if

reasonable minds could differ or be uncertain as to the meaning of the statute’

based on the context of the statute, the statute is ambiguous and requires us to

rely on principles of statutory construction to resolve the ambiguity.” State v.

Coleman, 907 N.W.2d 124, 135 (Iowa 2018) (quoting State v. Iowa Dist. Ct., 889

N.W.2d 467, 471 (Iowa 2017)).
 8

Thus, “[t]he first step in our statutory interpretation analysis is to

determine whether the statute is ambiguous.” State v. Zacarias, 958 N.W.2d 573,

581 (Iowa 2021) (quoting State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020)). But

a statute is not ambiguous merely because two litigants disagree about its

meaning. Carreras v. Iowa Dep’t of Transp., Motor Vehicle Div., 977 N.W.2d 438,

456 (Iowa 2022) (McDermott, J., concurring in part and dissenting in part)

(“Declaring ambiguity whenever skilled lawyers offer divergent meanings for

phrases would unnecessarily launch us into ambiguity-resolving canons in most

of our cases.”). “Ambiguity may arise from specific language used in a statute or

when the provision at issue is considered in the context of the entire statute or

related statutes.” The Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d

417, 425 (Iowa 2010) (quoting Midwest Auto. III, LLC v. Iowa Dep’t of Transp.,

646 N.W.2d 417, 425 (Iowa 2002)).

2. Section 147.140(1) is ambiguous. Iowa Code section 147.140(1) sends

mixed messages as to when a certificate of merit is required. The statute says it

applies to any action in which an expert is needed to establish a prima facie case,

but then it only requires the expert to address the standard of care and breach

elements in the certificate of merit. See id. So, is a certificate of merit required in

any medical malpractice action where expert testimony is necessary to establish

any part of the prima facie case or only when an expert is needed to establish

either the standard of care or breach? The first part of section 147.140(1)(a)

implies the former, whereas the second part implies the latter:
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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 . . . 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.

Iowa Code § 147.140(1)(a) (emphasis added). Section 147.140(1)(b) also implies

the latter by requiring the certificate of merit to include “(1) [t]he expert witness’s

statement of familiarity with the applicable standard of care” and “(2) [t]he expert

witness’s statement that the standard of care was breached by the health care

provider named in the petition.” Id. § 147.140(1)(b). Regarding cases in which

expert testimony is necessary only to establish other elements of a prima facie

case, such as causation or damages, the statute does not explain whether a

certificate of merit is required. With one part of subsection (a) appearing to

require a certificate of merit only when an expert is needed to establish the

standard of care or breach, while another part implies the certificate of merit is

necessary when an expert is needed to establish any prima facie element of the

case, we conclude section 147.140(1)(a) is ambiguous.

To be clear, this ambiguity exists in the statute’s context. See Iowa Ins.

Inst. v. Core Grp. of the Iowa Ass’n for Just., 867 N.W.2d 58, 72 (Iowa 2015)

(“[E]ven if the meaning of words might seem clear on their face, their context can

create ambiguity.”). The statute is ambiguous because of an inconsistency

between the text that triggers the certificate of merit requirement1 and the text

1The statute’s trigger language is as follows: “In any action for personal injury or wrongful
death against a health care provider based upon the alleged negligence in the practice of that
 10

that explains what must be included in the certificate of merit.2 In many cases,

we have identified statutory text that, although clear in isolation, becomes

ambiguous in a statute’s broader context. See Iowa Ins. Inst., 867 N.W.2d at 72–

73 (finding the phrase “all information” ambiguous when taking surrounding

statutory subsections into account); U.S. Bank Nat. Ass’n v. Lamb, 874 N.W.2d

112, 117 (2016) (deciding the phrase “all liens” is “sufficiently ambiguous” in

light of the phrase’s location and the fact the statute appeared to operate

narrowly). Such is the case here.

3. Resolving the ambiguity. We use the tools of statutory construction to

construe ambiguous statutes. State v. Mathias, 936 N.W.2d 222, 227 (Iowa

2019); see also Iowa Code § 4.6 (recommending seven potential tools for

construing ambiguous statutes, including legislative history and policy

statements). “One such tool is legislative history.” State v. Gross, 935 N.W.2d

695, 703 (Iowa 2019) (citing Iowa Code § 4.6(3); State v. Doe, 903 N.W.2d 347,

352 (Iowa 2017)); see also Iowa Code § 4.6(3) (“If a statute is ambiguous, the

court, in determining the intention of the legislature, may consider. . . [t]he

legislative history.”). Legislative history that shows a bill’s changes over the

course of its enactment can be especially revealing. When the legislature

eliminates a provision during the debate process, “the statute should not be

construed” in a way that gives effect to the eliminated provision. Chelsea Theater

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 . . . .” Iowa Code § 147.140(1)(a).
2The statute requires that certificates of merit must be “signed by an expert witness with

respect to the issue of standard of care and an alleged breach of the standard of care.” Id.
 11

Corp. v. City of Burlington, 258 N.W.2d 372, 374 (Iowa 1977) (citing Lenertz v.

Mun. Ct., 219 N.W.2d 513, 516 (Iowa 1974)); see also United Elec., Radio & Mach.

Workers of Am. v. Iowa Pub. Emp. Rels. Bd., 928 N.W.2d 101, 110–11 (Iowa 2019)

(relying on the omission of a text in a bill during the legislative process as a tool

of statutory construction); State v. DeSimone, 839 N.W.2d 660, 667–68 (Iowa

2013) (same).

In this case, legislative history is particularly helpful. There were three

drafts of bills that contained the certificate of merit requirement: two study bills

and a house file bill. See S.S.B. 1087, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa

2017); H.S.B. 105, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.F. 487,

87th G.A. sess., § 3(1)(a), (b)(4) (Iowa 2017). The text of each of the three bills

requires that the certificate of merit attest to the standard of care, breach, or

causation. The relevant explanation section of each bill confirms, saying the

proposed language would require plaintiffs to secure certificates of merit that

speak to the standard of care, breach, and causation. The enacted language,

however, says nothing about causation. See 2017 Iowa Acts ch. 107, § 4 (codified

at Iowa Code § 147.140 (2018)). Additionally, the draft bills gave plaintiffs ninety

days to serve a certificate of merit, but the enacted statute reduced that time to

sixty days. See id.

The fact that the legislature removed the word “causation” tells us a great

deal. We infer that the legislature did not intend the certificate of merit

requirement in section 147.140(1)(a) to reach questions of causation. At some

point, the legislature considered requiring plaintiffs to obtain a certificate of
 12

merit by an expert about the standard of care, breach, and causation to obtain

its objectives. But clearly the legislators changed course, perhaps deciding that

they did not want to require plaintiffs to certify causation issues so early in

litigation. This view is further supported by the thirty-day reduction in the time

for serving defendants with a certificate of merit. We conclude Iowa Code section

147.140(1)(a) does not require plaintiffs to submit certificates of merit attesting

to causation even though expert testimony about causation is necessary for the

plaintiff to state a prima facie case.

Another tool of statutory construction is the consequences of a particular

construction. Iowa Code § 4.6(5) (“If a statute is ambiguous, the court, in

determining the intention of the legislature, may consider . . . [t]he consequences

of a particular construction.”). When choosing among various ways to construe

an ambiguous statute, courts should choose a construction that is sensical and

reasonable. See Naumann v. Iowa Prop. Assessment Appeal Bd., 791 N.W.2d 258,

262 (Iowa, 2010) (using rules of construction to interpret an ambiguous statute

in a way that avoids strained or impractical results). Chautauqua argues that

section 147.140 requires a certificate of merit about the standard of care and

breach, even if the plaintiff only needs an expert for causation. As stated above,

it makes no sense to require a party to hire an expert just to fill out a certificate

of merit when no expert is necessary for those elements. In the same way, it

would be illogical to say section 147.140 requires a plaintiff who obtains expert

testimony for causation or damages to submit a certificate of merit regarding the

standard of care and breach. Rather, it is reasonable to conclude there is no
 13

need for a certificate of merit about the standard of care and breach when an

expert is needed for neither of those elements.

We find support for our conclusion when we compare section 147.140 to

similar statutes in other states. As we explained in Struck v. Mercy Health

Services-Iowa Corp., “At least twenty-eight other states have enacted certificate

or affidavit of merit statutes.” 973 N.W.2d at 541. Like Iowa’s section 147.140,

some states require certificates of merit that attest to just the standard of care

and breach. See, e.g., Miss. Code Ann. § 11-1-58(1)(a) (2022). On the other hand,

like Iowa’s earlier drafts of legislative bills, many other states require certificates

of merit regarding the standard of care, breach, and causation. See, e.g., Mo.

Rev. Stat. § 538.225(1) (2022); Vt. Stat. Ann. tit. 12, § 1042(a)(3) (West 2022).

Clearly, different jurisdictions have pursued various means to achieve the goal

of nipping frivolous medical malpractice lawsuits in the bud. These variations

make us confident that our legislature made a conscious policy decision, not

merely a mistake, when it removed the word “causation” from section

147.140(1)(a).

4. The Estate may need expert testimony to establish the standard of care

and breach, which would trigger the certificate of merit affidavit requirement. “It

is well settled that expert testimony is required to prove professional negligence

claims against healthcare providers.” Struck, 973 N.W.2d at 539. “Ordinarily,

evidence of the applicable standard of care—and its breach—must be furnished

by an expert.” Id. (quoting Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)).
 14

Yet we have recognized some professional breaches are so blatant that

expert testimony is not required for them. Id. at 539, n.4. These are breaches in

which “the physician’s lack of care is so obvious as to be within the

comprehension of a lay[person] and requires only common knowledge and

experience to understand.” Id. (alteration in original) (quoting Oswald, 453

N.W.2d at 636). Essentially, expert testimony about the standard of care and

breach is not necessary when “the rule of res ipsa loquitur applies,” such as

“where a sponge, gauze, an instrument, or [a] needle has been left in the body.”

Whetstine v. Moravec, 291 N.W. 425, 436 (Iowa 1940); see also Donovan v. State,

445 N.W.2d 763, 766 (Iowa 1989) (“If a doctor operates on the wrong patient or

amputates the wrong limb, a plaintiff would not have to introduce expert

testimony to establish that the doctor was negligent.”).

But there is another separate set of circumstances in which expert

testimony about the standard of care and breach is not required. Medical

professionals frequently provide “nonmedical, administrative, ministerial, or

routine care” Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101 (Iowa 1971).

For those types of care, expert testimony about the standard of care and breach

is not needed because medical professionals are obliged to offer merely “such

reasonable care for patients as their known mental and physical condition may

require.” Id. at 102. We have held that nonmedical or routine care includes

helping patients shower, see id., and properly repositioning patients to prevent

pressure injuries (such as bedsores), see Thompson v. Embassy Rehab. & Care

Ctr., 604 N.W.2d 643, 646 (Iowa 2000). In contrast, we have also held that expert
 15

testimony is required to ascertain the standard of care for forcing patients to

reposition against their will in order to prevent pressure injuries and deciding

the timing of a surgery, because those actions require medical judgment. Id.

All in all, we have distilled these principles into the following test:

[I]f all the primary facts can be accurately and intelligibly described
to the jury, and if they, as [persons] of common understanding, are
as capable of comprehending the primary facts and of drawing
correct conclusions from them as are witnesses possessed of special
or peculiar training, experience, or observation in respect of the
subject under investigation, [expert testimony is not required].

Struck, 973 N.W.2d 533 at 543 (alterations in original) (quoting Thompson, 604

N.W.2d at 646).

In this case, we remand to the district court the question of whether expert

testimony is necessary with respect to the issue of standard of care and breach.

The Estate’s petition presents a litany of failures on the part of Chautauqua, and

Chautauqua argues in response that the Estate needs experts for all the

elements of its claims. Because the Estate never served a certificate of merit, the

district court should dismiss with prejudice any allegations that require expert

testimony regarding standard of care and breach. For the reasons stated, the

need for expert testimony about causation does not trigger the certificate of merit

affidavit requirement.

IV. Conclusion.

For the foregoing reasons, we reverse the court of appeals decision in part.

We reverse the district court judgment and remand the case, and we need not

address the remaining issues on appeal.
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DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT

COURT JUDGMENT REVERSED IN PART AND REMANDED.

Waterman, Mansfield, McDonald, and Oxley, JJ., join this opinion. May,

J., files a dissenting opinion, in which McDermott, J., joins.
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#22–0101, In re Estate of Butterfield

MAY, Justice (concurring in part and dissenting in part).

If a plaintiff needs an expert to establish “a prima facie case” of medical

negligence, Iowa Code section 147.140 (2021) requires the plaintiff to serve a

certificate of merit affidavit. The question here is whether causation is part of “a

prima facie case” of medical negligence. The answer is certainly “yes.” But the

majority’s holding implies that the answer is “no.” I respectfully dissent. Because

the Estate of Roberta Butterfield needed an expert to establish causation, the

Estate needed an expert to establish “a prima facie case,” and a certificate of

merit was required. The district court and court of appeals were right. We should

affirm.

I. An Alternative Approach to Section 147.140.

We should find a statute’s meaning in the “text of the statute,” the “words

chosen by the legislature.” State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017)

(quoting State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007)). Here are the

relevant words of Iowa Code section 147.140(1)(a):

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.

(Emphasis added.)
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In Struck v. Mercy Health Services-Iowa Corp., 973 N.W.2d 533 (Iowa

2022), we parsed these words and correctly determined their meanings. “[A]

certificate of merit is required,” we said, “when a plaintiff pleads (1) an ‘action for

personal injury or wrongful death,’ (2) ‘against a health care provider,’ (3) which

is ‘based upon the alleged negligence in the practice of that profession or

occupation or in patient care,’ and (4) ‘includes a cause of action for which expert

testimony is necessary to establish a prima facie case.’ ” Id. at 540 (quoting Iowa

Code § 147.140(1)(a)).

Here, it is undisputed that Struck’s first three criteria are met. No one

disputes that the Estate has pleaded “(1) an ‘action for personal injury or

wrongful death,’ (2) ‘against a health care provider,’ (3) which is ‘based upon the

alleged negligence in the practice of that profession or occupation or in patient

care.’ ” Id. (quoting Iowa Code § 147.140(1)(a)). The only question here concerns

the fourth criterion: does the Estate’s case “include[] a cause of action for which

expert testimony is necessary to establish a prima facie case”? Id. (emphasis

added) (quoting Iowa Code § 147.140(1)(a)). It does.

Again, the starting place is Struck. There we said that to establish a “prima

facie case” of medical negligence, “a plaintiff must produce evidence that (1)

establishes the applicable standard of care, (2) demonstrates a violation of this

standard, and (3) develops a causal relationship between the violation and the

injury sustained.” Id. at 539 (emphasis added) (quoting Oswald v. LeGrand, 453

N.W.2d 634, 635 (Iowa 1990)). So, a medical-negligence plaintiff (like the Estate)

cannot establish a prima facie case without establishing causation. Id. at 540;
 19

see, e.g., Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 337

(Iowa 2020) (agreeing that evidence “failed to establish the causation element of

Susies’ prima facie case” of medical malpractice). And so, if expert testimony is

necessary to establish causation, then expert testimony is necessary to establish

a prima facie case.

The Estate needs expert testimony to establish causation. Both the district

court and the court of appeals found that this is true.3 The majority does not

dispute those findings. Nor do I.

Because the Estate needs expert testimony to establish causation, “expert

testimony is necessary” for the Estate “to establish a prima facie case.” Iowa

Code § 147.140(1)(a); see Schmitt v. Floyd Valley Healthcare, No. 20–0985, 2021

WL 3077022, at *2 (Iowa Ct. App. July 21, 2021) (concluding that—even though

“the breach of the standard of care [was allegedly] so clear as to be obvious to a

layperson”—“expert witness testimony [wa]s necessary to establish a prima

fac[i]e case” because “causation still required expert testimony”). And because

expert testimony is necessary for the Estate to establish a prima facie case,

section 147.140 required the Estate to timely serve a certificate of merit. But the

Estate did not timely serve a certificate of merit. So the district court was

3The district court found: “To the extent that a breach [of the standard of care] might be

evident to laypersons without expert testimony, causation is not.” The court of appeals agreed:
We do not believe that understanding the causation behind a subtrochanteric
intertrochanteric hip fracture, an ischial pressure injury, or the death of a woman
with a myriad of underlying health conditions is within the common knowledge of
a non-medically trained person. Therefore, expert witness testimony was needed
with respect to the element of causation . . . .
 20

required to dismiss the Estate’s case, Iowa Code § 147.140(6), and the court of

appeals was required to affirm. We should affirm both courts.

II. Is It Really that Simple?

Although it’s possible that I’ve overlooked something, I see no reason why

we shouldn’t follow the straight-forward approach outlined above. I see no valid

path to the contrary conclusion that even though the statute plainly requires a

certificate of merit whenever a plaintiff needs an expert to establish a prima facie

case, and even though a prima facie case most certainly includes causation, and

even though the Estate needs an expert to establish causation, the Estate

somehow didn’t need to serve a certificate of merit.

The only option, I think, would be to say that a prima facie case doesn’t

require causation. But no one thinks that’s true. Just last year, our unanimous

Struck opinion said that—in the context of section 147.140—a prima facie case

of medical negligence includes causation. Struck, 973 N.W.2d at 538–39. And

Struck was absolutely right. It is blackletter that when a statute includes a legal

term that has an established legal meaning in a specific legal context, we give

that term its established legal meaning. E.g. Beverage v. Alcoa, Inc., 975 N.W.2d

670, 682 (Iowa 2022) (citing authorities). Section 147.140 deals with a very

specific legal context: medical negligence lawsuits. In the context of medical

negligence lawsuits, the term “prima facie case” has only one meaning—and it is

exceptionally well-established. It is the same three-element meaning that Struck

used. And causation is always one of those three elements. See Struck, 973

N.W.2d at 538–39 (stating that a prima facie case of medical negligence requires
 21

evidence of three elements: (1) the standard of care, (2) a violation of the standard

of care, and (3) a causal relationship between a violation of the standard of care

and the injury sustained); Susie, 942 N.W.2d at 337 (same); Eisenhauer ex rel.

Conservatorship of T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 9 (Iowa 2019)

(same); Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 401 (Iowa 2017)

(same); Lobberecht v. Chendrasekhar, 744 N.W.2d 104, 108 (Iowa 2008) (same);

Peppmeier v. Murphy, 708 N.W.2d 57, 61–62 (Iowa 2005) (same); Phillips v.

Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (en banc) (same); Graeve v.

Cherny, 580 N.W.2d 800, 801–02 (Iowa 1998) (same); Kennis v. Mercy Hosp. Med.

Ctr., 491 N.W.2d 161, 165 (Iowa 1992) (same); Oswald, 453 N.W.2d at 635

(same); Cole v. Taylor, 301 N.W.2d 766, 767 (Iowa 1981) (same); Daboll v. Hoden,

222 N.W.2d 727, 734 (Iowa 1974) (same); Zaw v. Birusingh, 974 N.W.2d 140,

160 (Iowa Ct. App. 2021) (same); Hill v. McCartney, 590 N.W.2d 52, 56 (Iowa Ct.

App. 1998) (same); Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998)

(same).4

Because the Estate needed an expert to establish causation, the Estate

needed an expert to establish a prima facie case. This triggered the certificate of

merit requirement, which the Estate did not meet. It really is that simple.

III. The Majority’s Approach.

The majority’s approach offers no viable escape from this conclusion.

Before diving into the specifics, though, I would make one general comment. One

4Indeed, causation is a required element—that may require expert testimony—even when

res ipsa loquitor applies. Kennis, 491 N.W.2d at 167.
 22

of my main differences with the majority is their focus on the required contents

of a certificate of merit. This case isn’t about the contents of a certificate of merit.

There was no certificate. The Estate didn’t serve one. So there are no contents to

evaluate. Rather, our only task here is to decide whether the Estate was required

to serve any certificate of merit at all. If no certificate was required, dismissal

was improper, and we should reverse. If any certificate was required, then

dismissal was proper, and we should affirm. Because I think a certificate was

required, I think we should affirm.

With that as background, I turn to the majority’s specific points. In brief

summary, the majority contends that (1) because the statute is ambiguous, we

can look beyond the statutory text to (2) legislative history and (3) a

reasonableness inquiry, (4) all of which suggest that a certificate of merit was

not required in this case. I respectfully disagree with each of these points.5

A. Is the Statute Ambiguous About When a Certificate of Merit

Affidavit Is Required? I start with the majority’s central premise—that section

147.140 is ambiguous about when a certificate of merit is required. In the

majority’s view, this ambiguity opens the door to reliance on legislative history

and other matters outside of the statute’s text.

5The majority also compares our statute with other states’ statutes. I agree that these
other statutes show that there were other ways that our legislature could have written section
147.140. And I agree that our legislature made conscious policy decisions when it chose the
words of section 147.140. I conclude that we should give effect to the legislature’s chosen words,
including the phrase “prima facie case,” which unambiguously includes causation in this
medical-negligence context.
 23

I note, though, that the Estate made no ambiguity argument in its

appellate briefs. And the court of appeals decided the Estate’s appeal without

oral argument. So the court of appeals never heard any arguments about

ambiguity. Rather, the Estate first mentioned ambiguity in its petition for further

review. But “[w]e generally will not consider issues raised for the first time . . . in

an application for further review.” State v. Shackford, 952 N.W.2d 141, 147–48

(Iowa 2020). I see no reason to make an exception.

In any event, I can find no meaningful ambiguity here. Like the majority, I

think “a statute is not ambiguous merely because two litigants disagree about

its meaning.” And I agree with Justice McDermott that “[d]eclaring ambiguity

whenever skilled lawyers offer divergent meanings for phrases would

unnecessarily launch us into ambiguity-resolving canons in most of our cases.”

Carreras v. Iowa Dep’t of Transp., 977 N.W.2d 438, 456 (Iowa 2022) (McDermott,

J., concurring in part and dissenting in part). Instead, we should limit

declarations of ambiguity to situations in which the operative statutory words

are “susceptible to more than one reasonable meaning.” State v. Rodgers, 560

N.W.2d 585, 586 (Iowa 1997); see State v. Mathias, 936 N.W.2d 222, 228 (Iowa

2019) (finding ambiguity where language had “multiple reasonable meanings”).

That’s not the case here. As the statute makes clear—and as we verified in

Struck—“a certificate of merit is required” whenever the petition “ ‘includes a

cause of action for which expert testimony is necessary to establish a prima facie

case.’ ” Struck, 973 N.W.2d at 540 (quoting Iowa Code § 147.140(1)(a)). And the

phrase “a prima facie case” does not have “more than one reasonable meaning”
 24

in this context. Rodgers, 560 N.W.2d at 586. The only reasonable meaning is the

three-element meaning stated in Struck, which includes a causation

requirement. No reasonable meaning of “prima facie case” excludes causation.

So, because the Estate’s claims require expert testimony to establish causation,

those claims require expert testimony to establish a prima facie case, and

therefore “a certificate of merit is required.” Struck, 973 N.W.2d at 540.

The majority deploys two counter-arguments. First, the majority suggests

that there is ambiguity because “the statute does not explain whether a

certificate of merit is required” when a plaintiff (like the Estate) will need expert

testimony to establish one essential part of “a prima facie case”—causation—but

not to establish other parts—standard of care and breach. I respectfully disagree.

The statute unambiguously requires a certificate of merit whenever expert

testimony is needed to establish “a prima facie case.” And just as a pizza needs

a crust, a “prima facie case” requires causation. So if expert testimony is needed

to establish causation, then expert testimony is needed to establish “a prima

facie case,” and the certificate is required. It is required regardless of whether

expert testimony will also be needed for other issues, like standard of care,

breach, damages, or anything else.

Next the majority argues that there is ambiguity because “one part” of

section 147.140(1)(a) “appear[s] to require” a certificate “only when an expert is

needed to establish the standard of care or breach” but “another part implies”

that a certificate “is necessary when an expert is needed to establish any prima

facie element of the case.” I respectfully disagree. This analysis confuses (1) the
 25

statute’s trigger conditions, i.e., when a certificate is required; with (2) the

statute’s content requirements, i.e., what a certificate needs to say. To

understand why, it helps to look at section 147.140(1)(a) as a whole:

1. a. 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.

Iowa Code § 147.140(1)(a) (emphases added).

Let’s start with the trigger conditions—the circumstances when a

certificate is required—shown in the italicized text. As we said in Struck, this text

clearly requires a certificate whenever there’s a claim “for which expert testimony

is necessary to establish a prima facie case.” 943 N.W.2d at 540 (quoting Iowa

Code § 147.140(1)(a)).

Next, let’s look at the content requirements—the topics that a certificate

must address—shown in the bold text. This text is also clear: a certificate must

address the “standard of care and an alleged breach of the standard of care.”

Now, if we read these provisions together, we can easily understand the

statute’s meaning. A certificate is required if a plaintiff pleads a claim “for which

expert testimony is necessary to establish a prima facie case.” A certificate must

contain expert statements about the “standard of care” and the “alleged breach
 26

of the standard of care.” There’s no uncertainty about (1) when a certificate is

required or (2) what it must contain. There’s no ambiguity.

Of course, I understand the majority’s curiosity about why the legislature

would (1) require a certificate for all cases in which expert testimony is necessary

to establish a prima facie case, which includes standard of care, breach, and

causation; but (2) only require that the certificate address standard of care and

breach. While this asymmetry is interesting, though, it is not outside the range

of reasonable options from which our legislature could properly choose. (More

on this later.) In any event, it doesn’t create any ambiguity about when a

certificate is required. It doesn’t create multiple reasonable meanings for “prima

facie case,” the unambiguous trigger phrase. It gives no reason to think that

causation is not a part of “prima facie case.” It provides no basis to conclude that

“prima facie case” could mean only “standard of care” and “breach.” Indeed, the

statute’s asymmetry confirms that “prima facie case” means something different

than just “standard of care” and “breach.” Otherwise, there would have been no

reason for the legislature to use “prima facie case” near the start of section

147.140(1)(a) and then use different terms—“standard of care” and “breach”—

later in the same section. Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa

2002) (“We assume the legislature intends different meanings when it uses

different terms in different portions of a statute.”). We should honor that

legislative choice by giving “prima facie case” its own particular meaning, which

must include causation. And so, because the Estate’s claims required expert
 27

testimony to establish causation, we should acknowledge that the certificate

requirement was triggered.

B. Does Legislative History Require a Different Answer? I also

respectfully disagree with the majority’s reliance on legislative history to support

interpretations that contradict the plain meaning of the enacted text. See, e.g.,

Koehler v. Hill, 14 N.W. 738, 767 (Iowa 1883) (Beck, J., dissenting) (“The enrolled

statute, being the final expression of the legislative will, overcomes all journal

entries which contradict it.”). “It is our duty to accept the law as the legislative

body enacts it.” Holland v. State, 115 N.W.2d 161, 164 (Iowa 1962). Like Justice

McDermott, I worry that focusing on legislative history can easily “divert[] us”

from our duty to give “effect to the text that lawmakers have adopted and that

the people are entitled to rely on.” State v. Davison, 973 N.W.2d 276, 293 (Iowa

2022) (McDermott, J., concurring specially).

In any event, the available history contradicts the majority’s suggestion

that “the legislature did not intend the certificate of merit requirement . . . to

reach questions of causation.” To help explain why this is true, I have created

the table below. In the left column, you can see the unenacted bill language on

which the Estate relies. In the right column, you can see the enacted text of

section 147.140(1)(a).
 28

Unenacted Language from House Enacted Language in Section
and Senate Bills6 147.140(1)(a)7
In any action for personal injury or wrongful In any action for personal injury or wrongful
death against a health care provider based death against a health care provider based
upon the alleged negligence in the practice of upon the alleged negligence in the practice of
that profession or occupation or in patient care, that profession or occupation or in patient care,
including a cause of action for which expert which includes a cause of action for which
testimony is necessary to establish a prima expert testimony is necessary to establish a
facie case, the plaintiff shall, within ninety prima facie case, the plaintiff shall, prior to the
days of the defendant’s answer, serve upon commencement of discovery in the case and
the defendant a certificate of merit affidavit for within sixty days of the defendant’s answer,
each expert witness listed pursuant to section serve upon the defendant a certificate of merit
668.11 who will testify with respect to the affidavit signed by an expert witness with
issues of standard of care, breach of respect to the issue of standard of care and
standard of care, or causation. an alleged breach of the standard of care.

By comparing these texts, we can see that there certainly were changes in

the content requirements between the unenacted bills and the enacted statute.

The unenacted bills would have required certificates to address three topics:

“standard of care,” “breach of standard of care,” and “causation.” The enacted

statute only requires a certificate to address two topics: “standard of care” and

“an alleged breach of the standard of care.”

But there were no similar changes to the triggering language, shown in

italics. In the unenacted bills and the enacted statute, the triggering language

remained almost the same. Both versions use the same phrase, “prima facie

case,” which necessarily includes causation. This confirms that the legislature

wanted the certificate of merit requirement to apply whenever a plaintiff needs

an expert to establish causation.

6H.S.B.105, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017) (emphases added); see S.S.B.
1087, 87th G.A., 2d sess., § 5(1)(a), (b)(4) (Iowa 2017); H.F. 487, 87th G.A. sess., § 3(1)(a), (b)(4)
(Iowa 2017).
7Iowa Code § 147.140(1)(a) (emphases added).
 29

C. What About Reasonableness? Finally, I turn to the majority’s concern

that “it makes no sense” for the legislature to require an expert’s certification

that there has been a breach of the standard of care if it appears that—at trial—

the plaintiff will only need expert testimony to establish causation. I respectfully

disagree.

First, it goes too far to say that the legislative scheme “makes no sense.”

One obvious purpose of section 147.140 is to dispose of meritless suits early.

And there is a reasonable relationship between (1) the goal of disposing of

meritless suits early and (2) requiring an expert’s confirmation that a standard

of care was breached. That’s true even if—at trial—the plaintiff will only need

expert testimony on causation. If a plaintiff’s claims are complex enough that

expert testimony will be needed to establish causation—that is, a causal link

between a breach of a standard of care and a claimed injury—it’s not

unreasonable to want an expert to certify that there really was a breach of a

standard of care.

Moreover, even if section 147.140 seems like an imperfect product of a

messy legislative process, that doesn’t mean that we shouldn’t give effect to its

words. See, e.g., In re BISYS Grp. Inc. Derivative Action, 396 F. Supp. 2d 463, 464

(S.D.N.Y. 2005) (“Congress . . . alone is charged with making the close judgments

and sometimes messy compromises inherent in the legislative process.”). Even if

its requirements are “counterintuitive”—even if they “seem[] contrary to the

court’s expectations”—we still must honor its “clear legislative language.” The
 30

Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 427 (Iowa

2010). As Judge Doyle rightly observed:

“In a democracy, the power to make the law rests with those chosen
by the people.’ ” King v. Burwell, 135 S. Ct. 2480, 2496 (2015). Even
if we dislike the law or think some other approach might be a better
policy, “[t]he role of [a court] is to apply the statute as it is written.”
Burrage v. United States, 134 S. Ct. 881, 892 (2014) . . . “If changes
in a law are desirable from a standpoint of policy or mere
practicality, it is for the legislature to enact them, not for the court
. . . .” U.S. Jaycees v. Iowa Civil Rights Comm’n, 427 N.W.2d 450,
455 (Iowa 1988).

In re Prop. Seized for Forfeiture from Thao, No. 14–1936, 2016 WL 1130280, at *9

(Iowa Ct. App. Mar. 23, 2016) (alterations and second omission in original).

IV. Conclusion.

The unambiguous words of Iowa Code section 147.140 required the Estate

to serve a certificate of merit affidavit. The Estate did not. So the district court

was right to dismiss the Estate’s case, and the court of appeals was right to

affirm. We should affirm both courts. I respectfully dissent from part III.A of the

majority opinion.

McDermott, J., joins this concurrence in part and dissent in part.