IN THE SUPREME COURT OF IOWA
No. 22–0576
Submitted November 15, 2023—Filed February 9, 2024
CHARLENE JORGENSEN and MICHAEL JORGENSEN,
Appellees,
vs.
ADAM B. SMITH, M.D.; ADAM SMITH, M.D., P.C.; and TRI-STATE SPECIALISTS, L.L.P.,
Appellants.
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
A clinic sought interlocutory review of a district court order denying the
clinic’s motion for summary judgment as to a claim of negligent retention.
AFFIRMED AND REMANDED. May, J., delivered the opinion of the court, in which all justices joined.
Jeff W. Wright (argued) and Zack A. Martin of Heidman Law Firm, P.L.L.C.,
Sioux City, for appellants.
Michael D. Bornitz (argued) of Cutler Law Firm, LLP, Sioux Falls, South
Dakota, and William D. Sims of Northern Plains Justice, LLP, Sioux Falls, South
Dakota, for appellees. 2
MAY, Justice. An injured patient claims that a clinic was negligent in retaining a surgeon
who was unfit to practice surgery. The main question before us is whether Iowa
Code section 147.140 (2018) required the patient to produce a “certificate of
merit affidavit” containing an expert’s opinion that the clinic had breached the
applicable standard of care by retaining the surgeon. Based on the particular
record and arguments before us, we answer that question in the negative.
I. Background.
A. The Parties and Their Relationships. The plaintiffs, Charlene and
Michael Jorgensen, are married. Charlene underwent surgeries in 2016 and
2018. Both surgeries were performed by defendant Adam Smith, M.D. (Dr.
Smith). At that time, Dr. Smith was a licensed physician who held himself out
as a specialist in plastic surgical care. Dr. Smith was the only employee of
defendant Adam Smith, M.D., P.C. (Smith P.C.). Smith P.C. employed Dr. Smith
to provide medical services on behalf of defendant Tri-State Specialists, L.L.P.
(Tri-State). Tri-State operates as a clinic for surgeons and other specialists.
B. The Jorgensens’ Petition. In May 2020, the Jorgensens brought this
suit against Dr. Smith, Smith P.C., and Tri-State. The Jorgensens allege that Dr. Smith botched the 2018 surgery and that all three defendants were liable for
the resulting damages. But the Jorgensens do not allege the same kinds of claims
against all three defendants. As to Dr. Smith, the Jorgensens allege medical
negligence and lack of informed consent. As to Smith P.C., the Jorgensens allege
medical negligence and respondeat superior. As to Tri-State, the Jorgensens
allege respondeat superior and negligent “hiring, supervising, employing, and/or
retaining.” This last claim against Tri-State is at the center of this appeal. At oral
argument, the Jorgensens’ counsel clarified that this claim is about negligent retention. 3
C. The Jorgensens’ Negligent Retention Claim. In brief summary, the
negligent retention claim is based on the idea that Tri-State knew or should have
known that Dr. Smith was unfit to practice surgical medicine and, therefore, Tri-
State was negligent in retaining Dr. Smith. Put another way, the Jorgensens
believe that Tri-State was negligent in failing to discharge Dr. Smith before he
could harm Charlene in the 2018 surgery.
The Jorgensens give a host of reasons why Tri-State was obligated to
discharge Dr. Smith. For one thing, the Jorgensens claim that Dr. Steele—a
surgeon who previously worked for Tri-State—made verbal reports to Tri-State
about Dr. Smith’s improper surgical practices. Then, after Tri-State fired
Dr. Steele, Dr. Steele sent a letter to Tri-State. The letter raised a wide range of
concerns about Dr. Smith, including claims of “rampant malpractice and
widespread insurance fraud.” Dr. Steele’s letter and his verbal reports were all
provided to Tri-State well before the 2018 surgery.
D. The Jorgensens’ Certificate of Merit. In June 2020, the defendants
filed their answer to the Jorgensens’ petition. The filing of the defendants’ answer
started a sixty-day clock under Iowa Code section 147.140(1)(a). We will discuss
section 147.140 at some length below. In brief summary, though, in some actions against health care providers, section 147.140 requires the plaintiff to
serve a “certificate of merit affidavit” within “sixty days of the defendant’s
answer.” Id. The affidavit must be signed under oath by an expert witness. Id.
And it must include a statement by the expert that the applicable standard of
care was breached. Id.
In an effort to comply with this requirement, the Jorgensens timely served
a certificate of merit affidavit. Their affidavit was signed under oath by Dr. Mark
Jewell, a licensed plastic surgeon. In the affidavit, Dr. Jewell certified that he had reviewed medical records relating to the 2018 surgery and follow-up care. 4
He further certified “to a reasonable degree of [his] medical surgical experience
and knowledge that [Dr. Smith] breached the standard of care with respect to”
both the 2018 surgery and the follow-up care.
But Dr. Jewell’s affidavit did not address whether Tri-State should have
discharged Dr. Smith prior to the 2018 surgery. Nor did the Jorgensens file a
separate affidavit by a different expert to address Tri-State’s failure to discharge
Dr. Smith.
E. The Jorgensens’ Expert Designation. In September 2021, the
Jorgensens designated a single expert witness, Dr. Michael Edwards, to testify
at trial. Dr. Edwards is a board-certified plastic surgeon. In his report,
Dr. Edwards opined “that Dr. Smith fell below the accepted standard of care in
the treatment of [Charlene] in the evaluation, planning[,] and conduct of her”
surgical care.
But Dr. Edwards’s report did not offer any opinion as to whether Tri-State
should have discharged Dr. Smith prior to the 2018 surgery. Nor did the
Jorgensens designate any other expert to address Tri-State’s failure to discharge
F. The Defendants’ Summary Judgment Motion. A couple months later, the defendants moved for partial summary judgment. The defendants’ motion
sought dismissal of the Jorgensens’ negligent retention claim. As support for
their motion, the defendants raised two arguments. First, the defendants noted
that the Jorgensens’ certificate of merit affidavit had only addressed Dr. Smith’s
negligent surgical care. The Jorgensens had not filed a separate certificate of
merit affidavit to address Tri-State’s alleged negligence in retaining Dr. Smith.
Therefore, in the defendants’ view, section 147.140 required dismissal of the
negligent retention claim. 5
Second, the defendants argued that the Jorgensens had also failed to
comply with Iowa Code section 668.11. Section 668.11 generally requires
plaintiffs “in a professional liability case brought against a licensed professional”
to disclose their experts “within one hundred eighty days of the defendant’s
answer.” Id. In the defendants’ view, section 668.11 required the Jorgensens to
designate an expert who would opine that Tri-State was negligent in retaining
Dr. Smith. Because the Jorgensens did not do so, the defendants argued, the
negligent retention claim should be dismissed.
G. The District Court’s Summary Judgment Ruling. The district court
denied the defendants’ request for summary judgment. As support for its ruling,
the court gave two reasons. First, the court found that although Tri-State “is a
health facility and within the type of cases included in [section] 147.140,” the
negligent retention claim “is not a question of professional medical care, but is
within the ambit of ‘nonmedical, administrative, or ministerial acts.’ ” (Quoting
Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d 681, 684 (Iowa 2012).)
Therefore, the court reasoned, “[n]o expert testimony is required to establish a
prima facie case and no certificate of merit affidavit is required.”
Second, the court noted that even in cases about medical care, expert testimony isn’t always required to establish a prima facie case. “Where lack of
care is so obvious as to be within the comprehension of a lay person and requires
only common knowledge to understand, no expert testimony is required,” the
court noted. And under “the facts of this case,” the court believed that “the
alleged facts” supporting the negligent retention claim “are so obvious as to be
within this exception.”
H. Reconsideration and Interlocutory Appeal. The defendants asked the
district court to reconsider its ruling. The court denied the defendants’ request. 6
The defendants then asked our court to grant interlocutory appeal. We granted
that request.
II. Merits.
In this interlocutory appeal, the defendants contend that summary
judgment was required by Iowa Code section 147.140 or, in the alternative,
section 668.11. We address each statute in turn.
A. Our Review. We review the district court’s interpretation of statutes for
correction of errors at law. Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d
533, 538 (Iowa 2022). We are guided by familiar principles of statutory
interpretation. We focus on the words of the legislature. Copeland v. State, 986
N.W.2d 859, 865 (Iowa 2023). Generally, we give those words “their common,
ordinary meaning in the context within which they are used.” In re J.C., 857
N.W.2d 495, 500 (Iowa 2014). But when the legislature defines its words, we are
bound by those definitions. See State v. Iowa Dist. Ct., 889 N.W.2d 467, 471
(Iowa 2017).
B. Iowa Code Section 147.140. We begin our statutory interpretation by
examining the words of Iowa Code section 147.140(1)(a), which states in part:
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.
We believe these words require “the plaintiff” to “serve . . . a certificate of
merit affidavit” if four criteria are met:
1. The plaintiff’s action is “for personal injury or wrongful death.”
2. The action is “against a health care provider.” 7
3. The action is “based upon the alleged negligence in the practice of that profession or occupation or in patient care.”
4. The action includes “a cause of action for which expert testimony is necessary to establish a prima facie case.”
Id.; accord Struck, 973 N.W.2d at 540 (identifying four requirements).
We address these criteria in turn. However, because we conclude that the
third criterion is dispositive, we do not reach the fourth criterion.
1. Personal injury or death. As explained, the first criterion is that the
plaintiff’s action must be “for personal injury or wrongful death.” Id. Here it is
undisputed that the Jorgensens are suing for personal injury. So the first
criterion is satisfied.
2. Health care provider. The second criterion turns on whether Tri-State is
a “health care provider.” Id. Here we are guided by the legislature’s own
definitions of the term “health care provider.” Specifically, section 147.140(7)
states that “[f]or purposes of” section 147.140, “ ‘health care provider’ means the
same as defined in section 147.136A.” Id. § 147.140(7) (emphasis omitted). And
section 147.136A contains this definition of “[h]ealth care provider”:
“Health care provider” means a physician or an osteopathic physician licensed under chapter 148, a chiropractor licensed under chapter 151, a podiatrist licensed under chapter 149, a physician assistant licensed and practicing under a supervising physician under chapter 148C, a licensed practical nurse, a registered nurse, or an advanced registered nurse practitioner licensed under chapter 152 or 152E, a dentist licensed under chapter 153, an optometrist licensed under chapter 154, a pharmacist licensed under chapter 155A, a hospital as defined in section 135B.1, a health care facility as defined in section 135C.1, a health facility as defined in section 135P.1, a professional corporation under chapter 496C that is owned by persons licensed to practice a profession listed in this paragraph, or any other person or entity who is licensed, certified, or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or in the practice of a profession.
Id. § 147.136A(1)(a) (emphasis omitted). 8
Applying the statutory text to the undisputed facts, we conclude that Tri-
State qualifies as a “health care provider.” At least two reasons support this view.
First, section 147.136A’s definition of “[h]ealth care provider” includes “a health
facility as defined in section 135P.1.” Id. And section 135P.1’s definition of
“[h]ealth facility” includes a “clinic.” Id. § 135P.1(3) (emphasis omitted). Because
Tri-State operates as a clinic, we think Tri-State fits this definition. Second, and
alternatively, section 135P.1’s definition of “health care provider” also includes
“any . . . limited liability partnership . . . comprised of” a clinic. Id. This also
seems to describe Tri-State, which is a limited liability partnership that operates
as a clinic. Either way, we believe Tri-State fits within the definition of “health
care provider” for purposes of section 147.136A. Therefore, Tri-State is a “health
care provider” for purposes of 147.140. Id. § 147.140(7).
We have considered the Jorgensens’ counterarguments. The Jorgensens
note that Tri-State has sometimes denied providing care. In discovery responses,
Tri-State has clarified that it “is a business entity and not a medical doctor.” Tri-
State has also clarified that it “is an entity and does not provide medical care[,]
treatment, or diagnosis.” In light of these statements by Tri-State, the Jorgensens
argue that Tri-State cannot claim to be a health care provider in the ordinary sense of that term. And it is true that we usually give statutory words their
ordinary meanings. As noted, though, the ordinary-meaning rule must yield
when the legislature has defined its words. Iowa Dist. Ct., 889 N.W.2d at 471.
When the legislature defines its words, we must apply those definitions. Id. And
here the legislature has specifically defined “health care provider” to include
clinics. See Iowa Code § 135P.1(3). So because Tri-State operates as a clinic, it
is also a “health care provider.” The second criterion is satisfied.
3. “Profession,” “occupation,” or “in patient care.” We turn next to the third criterion: whether the action is “based upon the alleged negligence in the practice 9
of that profession or occupation or in patient care.” Id. § 147.140(1)(a) (emphasis
added). In their brief, the defendants say that this requirement is met because
the Jorgensens’ “negligent retention claim is . . . ‘based upon the alleged
negligence in the practice of [Tri-State’s] profession or occupation or in patient
care.’ ” (Alteration in original) (quoting Iowa Code § 147.140(1)(a)). But the
defendants’ brief does not contain arguments about the “profession” option or
the “in patient care” option. Instead, the defendants’ brief only contains an
argument about the “occupation” option. Following the defendants’ lead, we only
consider the “occupation” option as it is argued in the defendants’ brief. See Iowa
Ass’n of Bus. & Indus. v. City of Waterloo, 961 N.W.2d 465, 480 (Iowa 2021)
(McDonald, J., concurring in part and dissenting in part) (discussing “the party-
presentation rule,” a “fundamental doctrine of appellate review”); see also Sager
v. Farm Bureau Mut. Ins., 680 N.W.2d 8, 14 (Iowa 2004) (noting that, under our
“adversarial” system, “we generally consider only questions argued by the
parties”; as a result, our opinions “should not be understood as all-
encompassing court-approved treatises on a given body of law” (emphasis
omitted)), superseded by statute on other grounds, 2005 Iowa Acts ch. 70, §§ 19–
21 (codified at Iowa Code § 515.109 (2007)). The defendants begin their “occupation” argument by noting that the
legislature has not specifically defined “occupation.” See Iowa Code § 147.1. As
a result, “occupation” must be given its ordinary meaning. And, according to the
defendants, the ordinary meaning of “occupation” should be found in Black’s
Law Dictionary. Black’s defines “occupation” to mean “[a]n activity or pursuit in
which a person engages; esp., a person’s usual or principal work or business.”
Occupation, Black’s Law Dictionary 1298 (11th ed. 2019) [hereinafter Black’s]
(emphasis added). And the Jorgensens’ negligent retention claim is premised on the idea that Tri-State’s “work or business” includes hiring and retaining 10
surgeons. It follows, the defendants say, that the Jorgensens’ negligent retention
claim alleges “negligence in the practice of” Tri-State’s “occupation.” Iowa Code
§ 147.140(1)(a).
We reach a different conclusion. We agree that because the legislature has
not provided a specific definition of “occupation,” we must give that term its
common, ordinary meaning in the appropriate context. In our view, though, the
common, ordinary meaning of “occupation” only encompasses the pursuits of
natural persons, that is, human beings. It does not encompass the pursuits of
entities like Tri-State.
This view is supported by Black’s, on which the defendants rely. See
Occupation, Black’s at 1298. As noted, Black’s defines “occupation” to mean “[a]n
activity or pursuit in which a person engages; esp., a person’s usual or principal
work or business.” Id. (emphasis added). Twice in a row, the Black’s definition
refers to the activities of “a person.” Id. And in the same volume, Black’s defines
“person” to mean “[a] human being,” that is, a “natural person.” Person, id. at
1378 (emphasis omitted); see also Edwards v. New Century Hospice, Inc., 535
P.3d 969, 974 (Colo. 2023) (“Black’s Law Dictionary defines ‘person’ as ‘[a]
human being’ or a ‘natural person.’ ” (alteration in original)). This suggests that an “occupation” is something pursued by individual humans, not entities.
This view also finds support in ordinary English dictionaries. For instance,
The Britannica Dictionary defines “occupation” to mean “the work that a person
does” or “a person’s job.” Occupation, The Britannica Dictionary [hereinafter
Britannica] (emphasis added), https://www.britannica.com/dictionary/occupation
[https://perma.cc/2L86-2XC2].
Merriam-Webster defines “occupation” to mean “an activity in which one
engages” or “the principal business of one’s life.” Occupation, Merriam-Webster 11
[hereinafter Merriam-Webster] (emphasis added), https://www.merriam-
webster.com/dictionary/occupation [https://perma.cc/X3YS-D944].
Dictionary.com defines “occupation” to mean “a person’s usual or principal
work or business, especially as a means of earning a living; vocation.”
Occupation, Dictionary.com [hereinafter Dictionary.com] (emphasis added),
https://www.dictionary.com/browse/occupation [https://perma.cc/S5LN-PFS9].
Collins says that “[y]our occupation is your job or profession.” Occupation,
Collins [hereinafter Collins] (emphasis added and omitted),
https://www.collinsdictionary.com/us/dictionary/english/occupation.
Cambridge Dictionary defines “occupation” to mean “a person’s job.”
Occupation, Cambridge Dictionary [hereinafter Cambridge] (emphasis added),
https://dictionary.cambridge.org/dictionary/english/occupation
[https://perma.cc/378F-5YT4].
All of these definitions describe the efforts of individual humans (“one” “a
person” “your”), not entities. This suggests that “occupation” usually means the
efforts of humans, not entities.
This view is confirmed by the examples supplied in the dictionaries just
mentioned. For instance, Britannica provides these examples:
• “He is thinking about changing occupations and becoming a police officer.”
• “What’s your occupation?” “I’m a stay-at-home mom.”
• “She listed her occupation as ‘writer’ on the form. [=she wrote ‘writer’ on the part of the form that asked what she did for work]”
Occupation, Britannica.
Merriam-Webster provides these examples:
• “Pursuing pleasure has been his major occupation.” • “Teaching was her occupation.” 12
Occupation, Merriam-Webster.
Dictionary.com provides this example: “Her occupation was dentistry.”
Occupation, Dictionary.com (emphasis omitted). Collins provides this example: “I
suppose I was looking for an occupation which was going to be an adventure.”
Occupation, Collins (emphasis omitted). Cambridge provides these examples:
• “In the space marked ‘occupation’ she wrote ‘police officer[.]’ ”
• “Occupations experiencing shortages will need an average of 47% more graduates to meet demand.”
Occupation, Cambridge (emphasis omitted).
All of these examples are about occupations pursued by individual
humans. None of these examples is about an entity.
Of course, we cannot say that the word “occupation” is never used in
connection with entities. For instance, entities sometimes incur “occupation
taxes.” Bump v. Dist. Ct., 5 N.W.2d 914, 919 (Iowa 1942). But we see no reason
to think that those specialized applications are particularly relevant in the
context of section 147.140. See Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646,
650 (Iowa 2021) (“Words bear their ordinary meanings unless the context
indicates that a technical meaning applies.”). Rather, like the defendants, we think the ordinary meaning of “occupation” applies here. And for the reasons
explained, we believe that ordinary meaning has to do with humans, not entities.
All things considered, then, we conclude that in the context of section
147.140, the term “occupation” does not encompass the activities of entities such
as Tri-State. See Iowa Code § 147.140(1)(a). Accordingly, we must reject the
defendants’ argument that the Jorgensens’ “negligent retention claim is . . .
‘based upon the alleged negligence in the practice of [Tri-State’s] . . .
occupation.’ ” (Alteration in original) (quoting Iowa Code § 147.140(1)(a)). 13
4. Conclusion regarding Iowa Code section 147.140. Based on the
particular arguments and record before us, we conclude that section 147.140’s
third criterion is not satisfied in this case. Iowa Code § 147.140(1)(a). As a result,
we must conclude that section 147.140 does not apply to the Jorgensens’
negligent retention claim and, therefore, section 147.140 did not require the
district court to grant summary judgment. Id. In light of this conclusion, we need
not address section 147.140’s fourth criterion, that is, “a cause of action for
which expert testimony is necessary to establish a prima facie case.” Id.; see also
Est. of Butterfield v. Chautauqua Guest Home, Inc., 987 N.W.2d 834, 839 (Iowa
2023) (addressing section 147.140’s prima-facie-case requirement).
5. Our opinion in Struck v. Mercy Health Services-Iowa Corp. In light of our
conclusion that section 147.140 does not apply to the Jorgensens’ negligent
retention claim, we believe it is appropriate to mention our opinion in Struck,
973 N.W.2d 533. In Struck, we made these observations:
[T]he district court correctly ruled that Iowa Code section 147.140 applied to Struck’s negligent hiring and retention claims against Mercy. To recover under that theory, “an injured party must show the employee’s underlying tort or wrongful act caused a compensable injury, in addition to proving the negligent hiring, supervision, or retention by the employer was a cause of those injuries.” “In other words, the injured party must prove a case within a case.” Because Struck’s underlying professional negligence claims against the individual healthcare professionals were properly dismissed under section 147.140(6), she cannot prove her case within a case to establish Mercy’s liability for wrongfully hiring or retaining them.
Other courts have held pre-suit requirements and limitations including a certificate of merit apply to the patient’s negligent retention claims against the hospital. Struck cites no contrary authority.
Id. at 544 (citations omitted) (quoting Kiesau v. Bantz, 686 N.W.2d 164, 172
(Iowa 2004), overruled in part on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016)). 14
There may appear to be some tension between these comments from
Struck, on one hand, and our conclusion today that section 147.140 does not
apply to the Jorgensens’ negligent retention claim. But there are important
differences between this case and Struck. See id. at 537–38. In this case, the
issue is whether section 147.140 required the Jorgensens to serve a certificate
of merit affidavit concerning the employer’s negligence in retaining a particular
employee-caregiver. Struck did not address that issue. See id. Rather, Struck
turned on the plaintiff’s failure to serve certificate of merit affidavits concerning
the negligence of employee-caregivers, the “case within a case.” Id. at 544. And
there is no similar case-within-a-case problem before us here. Unlike in Struck,
it is undisputed that the Jorgensens timely served a certificate of merit affidavit
concerning the negligence of the relevant employee-caregiver, Dr. Smith.
In short, Struck is plainly distinguishable both as to its facts and as to the
legal issues involved. See id. at 537–38, 544. So we need not resolve any potential
tension between our approach in Struck and our conclusions here. If some future
case should require us to revisit the issue, we will do so then. For now, “[w]e
decide only the case before us.” Book v. Doublestar Dongfeng Tyre Co., 860
N.W.2d 576, 596 (Iowa 2015). Along similar lines, we emphasize that this opinion does not announce any
categorical rule as to whether or not plaintiffs in negligent retention cases must
serve certificate of merit affidavits that address the negligence of employers.
Rather, by way of conscious repetition, we have decided only the case before us—
based on the record and arguments before us. We will decide future cases based
on the record and arguments presented then.
C. Iowa Code Section 668.11. We turn now to section 668.11. Iowa Code
§ 668.11. When section 668.11 applies, it requires the parties to certify experts within specified time frames. Id. According to its plain text, though, section 15
668.11 can only apply to “professional liability case[s] brought against a licensed
professional.” Id. § 668.11(1). And based on the arguments and record before us,
we cannot conclude that Tri-State is a “licensed professional” for purposes of
section 668.11. Id.; cf. Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 142
(Iowa Ct. App. 1993) (noting (but not deciding) a question as to whether a
hospital was a “licensed professional” within the meaning of section 668.11). So
we do not conclude that section 668.11 required the district court to grant
summary judgment.
D. Disposition. For the reasons explained, we conclude that summary
judgment was not required by section 147.140 or section 668.11. We affirm and
remand for further proceedings.
E. Issues Likely to Arise on Remand. We emphasize that our decision
today is limited to procedural issues concerning the expert-disclosure
requirements of section 147.140 and 668.11. We have not decided substantive
questions. Among other things, we have not decided whether expert testimony
would be necessary to support a jury verdict that Tri-State was negligent in
retaining Dr. Smith as a surgeon. The district court will decide that substantive
issue in the first instance. Even so, we acknowledge the interplay between the procedural
requirements of section 147.140 and 668.11, and the substantive question of
what expert testimony will be necessary for trial. Indeed, the latter issue has
already been addressed at some length in the district court. It is also addressed
at some length in the parties’ appellate briefs. And, of course, we expect the issue
is likely to arise again on remand as the case proceeds to trial. So we believe
some guidance on this issue is appropriate. See, e.g., Thornton v. Am. Interstate
Ins., 897 N.W.2d 445, 471–72 (Iowa 2017) (addressing issues that had been “fully briefed” by the parties that “are likely to arise on remand”). 16
We start with the (perhaps obvious) observation that negligent retention
cases can involve a variety of issues. Some of those issues may require expert
testimony, depending on the facts of the case. For instance, as suggested in
Struck, a claim that a clinic negligently retained a surgeon may require the
plaintiff to show both the surgeon’s “underlying tort or wrongful act caused a
compensable injury,” and also that the clinic’s negligent retention of the surgeon
was a proximate cause of the injury. 973 N.W.2d at 544 (quoting Kiesau, 686
N.W.2d at 172). That first requirement creates a “case within a case,” that is, a
surgical malpractice case within the broader negligent retention case. Id. And
surgical malpractice cases often require expert testimony to establish a surgeon’s
negligence. See, e.g., Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998)
(“Most medical malpractice lawsuits are so highly technical they may not be
submitted to a fact finder without medical expert testimony supporting the
claim.”). If expert testimony concerning the surgeon’s negligence is not available,
then the case within a case may be unsustainable, and the negligent retention
claim may fail as a result. Struck, 973 N.W.2d at 544.
Of course, there are exceptions. Sometimes a surgeon’s negligence can be
established without expert testimony because the surgeon’s “lack of care is so obvious as to be within the comprehension of” ordinary citizens. Id. at 539 n.4
(quoting Oswald v. LeGrand, 453 N.W.2d 634, 636 (Iowa 1990)). For example,
expert testimony may not be necessary in “a malpractice action alleging the
surgeon removed the wrong kidney or inadvertently left a clamp inside the
patient’s body.” Id. In those cases, it may be that the case within a case can be
established without an expert. Id. at 544. If so, then expert testimony about the
surgeon’s negligence may not be necessary to establish the larger negligent
retention claim. See id. 17
But even when there is ample evidence of the surgeon’s negligence, expert
testimony may still be necessary as to other issues. For instance, some negligent
retention cases may require separate expert testimony as to the employer’s
negligence in retaining the surgeon. Id. For one thing, to establish that an
employer was negligent in retaining a surgeon, the plaintiff must show that the
surgeon was unfit to serve as a surgeon. Cf. Godar v. Edwards, 588 N.W.2d 701,
708 (Iowa 1999) (noting that negligent hiring cases require proof that the
employer knew or should have known “of its employee’s unfitness” (quoting 27
Am. Jur. 2d Employment Relationship § 473, at 913–14 (1996))). And the question
of whether a surgeon was fit to practice surgery may well require expert
testimony. After all, we’ve long understood that surgery is a highly specialized
profession. See Welte v. Bello, 482 N.W.2d 437, 440 (Iowa 1992) (en banc) (“We
have long recognized ‘in most cases a layman can have no knowledge whether
. . . the proper surgical treatment was given.’ ” (quoting Evans v. Roberts, 154
N.W. 923, 926 (Iowa 1915))). And so the question of whether a surgeon is fit to
practice surgery is usually beyond the knowledge and experience of ordinary
citizens. Usually, then, expert testimony will be needed to establish a surgeon’s
unfitness. At the same time, though, we can anticipate exceptions. No expert will be
needed if the surgeon’s unfitness is “so obvious as to be within the
comprehension of” ordinary citizens. Struck, 973 N.W.2d at 539 n.4 (quoting
Oswald, 453 N.W.2d at 636). To choose an extreme example, if a surgeon had
been openly abusing patients in the surgical suite, the surgeon’s unfitness would
be sufficiently obvious to fall within the comprehension of ordinary citizens. No
expert testimony would be necessary to show that the surgeon was unfit.
Even when the record clearly shows that a surgeon was unfit, though, expert testimony could still be necessary for other issues. For example, expert 18
testimony could still be necessary to show that a clinic or other health care
provider should have known that a surgeon was unfit and, therefore, should
have discharged the surgeon. Cf. Rieder v. Segal, 959 N.W.2d 423, 431 (Iowa
2021) (“The plaintiff in a negligent credentialing claim must present expert
testimony establishing that the defendant deviated from the applicable standard
of care to raise a genuine issue of material fact.” (quoting Brookins v. Mote, 292
P.3d 347, 364 (Mont. 2012))). We emphasize that, in this context, the
determination of whether expert testimony is needed should not depend on
labels, such as whether hiring or firing a surgeon can be characterized as an
“administrative” task. Rather, the necessity of expert testimony depends on
whether “the proper course of action” is “within the common understanding of
the jury.” Thompson v. Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa
2000). Put another way, it depends on whether “all the primary facts can be
accurately and intelligibly described to the jury,” and whether “they, as [persons]
of common understanding, are as capable of comprehending the primary facts
and of drawing correct conclusions from them as are” expert witnesses. Est. of
Butterfield, 987 N.W.2d at 842 (alteration in original) (quoting Struck, 973
N.W.2d at 543). If not, expert testimony is necessary. See id. III. Conclusion.
We affirm and remand for further proceedings.
AFFIRMED AND REMANDED.