IN THE COURT OF APPEALS OF IOWA
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No. 25-1081
Filed August 19, 2026
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Ian Fischer, Personal Representative for the Estate of Pamela Sue Daggett, Plaintiff–Appellant,
v.
Catholic Health Initiatives-Iowa, Corp., d/b/a MercyOne Des Moines Medical Center, Urology Center of Iowa, PLLC, Diagnostic Imaging Associates, P.C. and Brian Gallagher, M.D., Defendants–Appellees.
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Appeal from the Iowa District Court for Polk County, The Honorable Heather Lauber, Judge.
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REVERSED AND REMANDED
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James H. Cook of JSC Legal, P.L.C., Cedar Falls, and Morgan Voight of Robins Kaplan LLP, Minneapolis, attorneys for appellant.
Richard A. Stefani and Thomas F. Ochs of Gray, Stefani & Mitvalsky, PLC, Cedar Rapids, attorneys for appellees.
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Considered without oral argument by Tabor, C.J., and Chicchelly and Sandy, JJ. Buller, J., takes no part.
Opinion by Tabor, C.J.
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TABOR, Chief Judge.
Pamela Daggett died after suffering an allergic reaction to contrast dye used during a medical imaging procedure. Her estate sued for medical malpractice, but the district court dismissed the action for failure to comply with Iowa Code section 147.140 (2022), the certificate-of-merit statute.1 Her son Ian Fischer, as representative for her estate, appeals that dismissal. He alleges: (1) section 147.140 doesn’t apply to his claims and (2) if it does apply, his certificate of merit substantially complied with the statutory requirements.
We find that section 147.140 applies to Fischer’s medical malpractice claims. But we find the district court erred in dismissing his lawsuit for alleged deficiencies in the certificate of merit provided by a board-certified radiologist. Thus, we reverse and remand for further proceedings.
I. Facts and Prior Proceedings
Fifty-eight-year-old Daggett saw Dr. Gallagher at Urology Center of Iowa in November 2019 for pain in her flank that she attributed to chronic polycystic kidney disease.2 Dr. Gallagher ordered a follow-up CT (computed tomography) scan of her abdomen and pelvis, which was scheduled for May 19, 2020. The order specified “WO W,” meaning procedures both with and without contrast dye.
1 The estate named five defendants: Catholic Health Initiatives-Iowa, Corp. d/b/a MercyOne Des Moines Medical Center; Urology Center of Iowa, PLLC; Diagnostic Imaging Associates, P.C.; Dr. Brian Gallagher, M.D.; and Dr. Karl Digman, M.D. Catholic Health Initiatives owns and operates MercyOne Medical Center. For brevity, we will refer to the hospital as MercyOne.
2 We take these facts from Fischer’s petition.
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In a separate incident in January 2020, Daggett underwent an angiogram with contrast, during which she had “a significant contrast reaction” to the dye, including rash, hives, hypotension, and difficulty breathing. The cardiologist noted, “Further contrast exposure should be avoided except if absolutely necessary and should be [preceded] with contrast prophylaxis.” The doctor added dye to the list of Daggett’s allergens in her medical records.
Two weeks before Daggett’s scan, Urology Center of Iowa faxed the CT order to MercyOne. Marcy Covert, a registered nurse, placed a note about the “dye allergy” in Daggett’s file stating: “Will need to pre-medicate with Prednisone and Benadryl. Had prior breathing and anxiety with angiogram, but several [contrast] CT done before with no issues.” One week before, a Diagnostic Imaging Associates physician entered an order that Daggett should take 32mg of methylprednisolone the night before her CT and a second dose two hours before.
The morning of Daggett’s scan at MercyOne, CT technician Tamara Swift ordered a “CT Abdomen Pelvis” without contrast and noted, “pt had anaphylactic reaction s/p 65 cc isovue.”3 That same morning, Dr. Digman, a radiologist at Diagnostic Imaging, ordered that Daggett receive 50mg of Benadryl, which registered nurse Kari Barker administered at 9:24 a.m. At 9:30 a.m., Swift ordered 65ml of iopamidol contrast dye and administered it intravenously (IV) in Daggett’s arm. Daggett began having an allergic reaction immediately. Barker’s note said:
Patient took pre-meds as instructed and received IV Benadryl.
Shortly after patient was injected with CT contrast, pt c/o not being able to breathe and wanted to sit up. Entered the room to help patient sit up and
3 Isovue is a radiographic contrast agent.
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oxygen 6l/nc was applied to patient. Propac was obtained and VS were taken. Patient continued to c/o not being able to breath, very anxious, diaphoretic and patient was laid down. Patient was laid down and continued to c/o trouble breathing. Nurse called out to nuc med tech to call RRT and get cart to room as patient’s O2 levels were starting to drop and patient was decompensating. Ambu bag was initiated on the patient and RRT arrived within a few minutes.
Dr. Digman’s notes said, “Initial noncontrast examination was performed. Subsequently, contrast administration initiated following full protocol premedication for history of contrast reaction. Following initiation of contrast, patient became short of breath and code sequence initiated with management by the code team.”
A rapid response team intubated Daggett at 9:36 a.m. and transferred her to the emergency department, where her heart stopped. She died two days later.
Fischer filed this lawsuit on behalf of his mother’s estate in April 2022, alleging a separate count against each defendant.
Count I alleged medical negligence against Dr. Gallagher. As an example of his negligence, the petition asserted that the urologist ordered the administration of iopamidol to a patient with a known contrast-dye allergy and a history of severe anaphylactic reaction, without sufficient investigation or documentation. Count II alleged medical negligence against Dr. Digman. As an example of his negligence, the petition alleged that he failed to assess Daggett’s prior anaphylactic reaction to contrast dye before ordering the administration of Benadryl premedication in preparation for the administration of contrast dye and failed to document any discussion with the patient or her medical team about her prior anaphylactic reaction to contrast dye.
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Count III alleged malpractice against MercyOne vicariously for the negligence of its employees: the CT technician and two nurses. Fischer didn’t assert claims against those employees individually. Count IV alleged claims against Urology Center of Iowa based on vicarious liability for the acts of Dr. Gallagher. And count V alleged claims against Diagnostic Imaging based on vicarious liability for the actions of Dr. Digman.
Along with the petition, Fischer filed a “certification and identification of expert review,” which identified Robert Bour, M.D., a board-certified radiologist, as an expert witness on the applicable standard of care under Iowa Code section 668.11. Fischer stated his intent to call Dr. Bour to testify in accordance with an attached affidavit.
The affidavit—running fourteen pages—set out Dr. Bour’s background and qualifications, his statement of familiarity with the standard of care, his opinion that the doctors, technician, and nurses breached the standard of care and caused Daggett’s death, and supporting medical facts and opinions.
The defendants all answered within a few weeks. About a month after filing the original petition, Fischer filed notice of serving the defendants with a certificate of merit signed and sworn by Dr. Bour. The certificate of merit consisted of two paragraphs:
I, Robert Bour, M.D., state as follows:
1. I am familiar with the standard of care applicable to Catholic Health Initiatives-Iowa, Corp., d/b/a MercyOne Des Moines Medical Center; Urology Center Of Iowa, PLLC; Diagnostic Imaging Associates, P.C.; Brian Gallagher, M.D.; and Karl Digman, M.D., with respect to Pamela Sue Daggett’s May 2020 care at MercyOne Des Moines Medical Center.
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2. Catholic Health Initiatives-Iowa, Corp., d/b/a MercyOne Des Moines Medical Center; Urology Center Of Iowa, PLLC; Diagnostic Imaging Associates, P.C.; Brian Gallagher, M.D.; and Karl Digman, M.D. breached the applicable standard of care with respect to Pamela Sue Daggett’s May 2020 care at MercyOne Des Moines Medical Center.
I certify under penalty of perjury and pursuant to the laws of the state of Iowa that the [preceding] is true and correct.
This affidavit, and the affidavit of expert review, were signed and notarized.
After conducting discovery, Dr. Gallagher and Urology Center of Iowa moved to dismiss, in part based on alleged deficiencies in the certificate of merit. In its January 2023 ruling, the district court observed that no expert is needed to establish the standard of care and breach when health care providers “administer a substance for which the patient is allergic,” citing Bazel v. Mabee, 576 N.W.2d 385, 387 (Iowa Ct. App. 1998) (“The evidence Betadine was used despite plaintiff’s reporting an allergy to it showed a lack of care sufficient to generate a jury question on negligence without expert testimony.”). The court concluded: “Based on Bazel’s nearly identical fact scenario, . . . expert testimony is not required to establish breach in Plaintiff’s claim against Defendants.” But the court went on to find that Fischer needed expert testimony to establish causation4 and that Dr. Bour, a radiologist, was not qualified to opine on the conduct of Dr. Gallagher, a urologist. The court dismissed the claims against Dr. Gallagher and Urology Center of Iowa.5
4 The district court’s ruling predated the supreme court’s decision in Estate of Butterfield by Butterfield v. Chautauqua Guest Home, Inc., concluding that “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.” 987 N.W.2d 834, 840 (Iowa 2023).
5 Later, Fischer voluntarily dismissed his claim against Dr. Digman, though not the claim against Diagnostic Imaging.
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After that ruling, two claims remained. Count III alleged that MercyOne was vicariously liable for the negligence of its employees: the CT technician and two nurses who treated Daggett during her scan and anaphylaxis. And count V alleged that Diagnostic Imaging was vicariously liable for the negligence of Dr. Digman.
Fast forward. More than two years after Fischer filed his petition, MercyOne moved for summary judgment, and Diagnostic Imaging moved to dismiss, each alleging deficiencies in the certificate of merit.
On April 18, 2025, the district court granted those motions finding that (1) Fischer’s certificate of merit lacked proof of Dr. Bour’s qualifications; (2) the certificate of merit was insufficiently specific and “individualized” as to Diagnostic Imaging; and (3) Dr. Bour was not licensed to practice, had not actively practiced, and was not board-certified in the same or substantially same specialty as the MercyOne employees. Thus, the court dismissed with prejudice Fischer’s claims against MercyOne and Diagnostic Imaging.
Fischer moved to reconsider. He argued that he was not required to serve a certificate of merit because no expert testimony was necessary to show a breach of the standard of care. He stressed that the district court’s January 2023 ruling accepted that proposition, relying on Bazel. That ruling then concluded that expert testimony was needed on causation, a conclusion later debunked by Butterfield. He also argued that the district court overlooked the “substantially similar” language in section 147.139(1). But the district court summarily denied the motion to reconsider.
Fischer appeals.
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II. Scope and Standard of Review
We review the district court’s rulings on both the motion to dismiss and the motion for summary judgment for the correction of legal error. See Lofgren v. Simpson, 36 N.W.3d 34, 38 (Iowa 2026); Kirlin v. Monaster, 984 N.W.2d 412, 415 (Iowa 2023). “Because this appeal turns on the district court’s application of section 147.140, we need only decide whether the district court properly applied the law.” Miller v. Cath. Health Initiatives- Iowa, Corp., 7 N.W.3d 367, 373 (Iowa 2024) (cleaned up). Review of the district court’s statutory interpretation is also for errors at law. Lofgren, 36 N.W.2d at 38.
III. Analysis
Fischer seeks relief by two routes. First, he argues that a certificate of merit was not required for his claims against MercyOne and Diagnostic Imaging. Second, regardless of whether a certificate of merit was required, he maintains that he satisfied Iowa Code section 147.140. We tackle those claims in turn.
A. Was a certificate of merit required for Fischer’s claims?
The certificate-of-merit requirements apply 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.
Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 540 (Iowa 2022) (cleaned up); see Iowa Code § 147.140(1)(a). Fischer contests the second, third, and fourth elements.
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Corporate entities. We start with Fischer’s claim that because MercyOne and Diagnostic Imaging are corporate entities, they are not “human beings engaged in the practice of patient care.” He argues that section 147.140 only applies to actions against “health care provider[s] based upon the alleged negligence in the practice of that profession or occupation or in patient care.” He cites Jorgensen v. Smith for the principle that no certificate of merit is required in an action against a limited liability partnership for negligent retention of a surgeon because only “natural persons” can have an “occupation” as a health care provider. See 2 N.W.3d 868, 875 (Iowa 2024) (hereinafter Jorgensen I).
But Fischer misconstrues Jorgensen I. There, our supreme court found that a clinic structured as a limited liability partnership qualified as a “health care provider” under section 147.136A(1)(a). Jorgensen I, 2 N.W.3d at 874. Likewise, MercyOne and Diagnostic Imaging are health care providers under the statutory definition.
And the certificate-of-merit mandates apply “[i]n 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.” Iowa Code § 147.140(1)(a) (emphasis added). Struck clarified that this applies to all claims of professional negligence against health care providers, including negligent hiring, retention, or supervision of professional staff. 973 N.W.2d at 539. In contrast, claims of ordinary negligence or negligence of non-professional staff in a health care setting may not trigger the certificate-of-merit requirements. See id. at 542–44.
Fischer’s claims against MercyOne and Diagnostic Imaging allege vicarious liability for the purported negligence of their professional staff in providing medical care and treatment to Daggett. Those claims are “based
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upon the alleged negligence in the practice” of their respective professions and “in patient care.” See Iowa Code § 147.140(1)(a). So those vicariousliability counts are not excused from the certificate-of-merit statute. See Jorgensen v. Smith, 36 N.W.3d 694, 703 (Iowa 2026) (hereinafter Jorgensen II) (noting that if plaintiffs failed to file a valid certificate of merit against allegedly negligent physician, section 147.140(6) would require dismissal of “any vicarious liability claims based on [physician’s] negligence”).
Need for expert testimony to establish standard of care and breach. Fischer next argues that even if, in general, vicarious liability claims against corporate entities fall under the certificate-of-merit statute, his suit is exempt because expert testimony wasn’t necessary to establish his prima facie case of negligence. See Iowa Code § 147.140(1)(a). In short, he contends that lay jurors could understand that patients shouldn’t be given substances to which they are allergic.
Before addressing the merits, Diagnostic Imaging argues that Fischer failed to preserve error because he did not raise this argument until his motion to reconsider the court’s April 18, 2025, ruling. Fischer counters that he preserved the argument by filing a request for judicial notice of adjudicative facts on April 8. In that request, he highlighted the paragraph citing Bazel from the January 2023 ruling granting Dr. Gallagher’s motion to dismiss and the subsequent supreme court decision in Butterfield.
But the district court did not rule on his request for judicial notice.
And Fischer did nothing to tie his request for judicial notice to his resistance to the motion to dismiss. “If an issue was never presented to the district court to rule on, and if the district court did not in fact rule on it, we lack any ‘error’ to correct.” State v. Gomez Medina, 7 N.W.3d 350, 355 (Iowa 2024). We agree with Diagnostic Imaging that error was not preserved on the alternative claim
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that expert testimony was unnecessary.6 Thus, we do not analyze whether Fischer needed a medical expert to explain the standard of care and breach under these facts.
B. Did Fischer’s certificate of merit and Dr. Bour’s affidavit substantially comply with the statute?
As his second avenue for relief, Fischer contends his certificate of merit “met the threshold requirements of section 147.140.” Here are those requirements:
When a medical malpractice claim requires expert testimony to establish the standard of care or a breach, section 147.140 requires the plaintiff to serve a “certificate of merit affidavit” no later than “sixty days” after the filing of “the defendant’s answer.” Id. § 147.140(1)(a). In the certificate of merit affidavit, a qualified expert must certify “under . . . oath” that he or she is familiar with “the applicable standard of care” and that “the standard of care was breached by the health care provider named in the petition.” Id. § 147.140(1)(b)(1)–(2).
Tarbox ex rel. S.K. v. Obstetric & Gynecologic Assocs. of Iowa City & Coralville, P.C., 13 N.W.3d 546, 553 (Iowa 2024). Additionally, a separate certificate of merit must be served on each defendant. Iowa Code § 147.140(1)(c).
The district court identified three deficiencies in Fischer’s certificate of merit. One, as to Diagnostic Imaging, the court found that “neither Dr. Bour’s affidavit attached to the petition nor his May 5, 2020, certificate
6 Although MercyOne does not challenge error preservation, we may decline to reach an unpreserved issue on appeal even if an appellee does not urge that route. Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000).
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of merit was sufficiently individualized to satisfy the statute.”7 Two, as to both Diagnostic Imaging and MercyOne, the court found that the certificate of merit lacked information that Dr. Bour met the expert qualifications set out in section 147.139(1) and (2). And three, as to MercyOne, the court found that summary judgment was appropriate because Dr. Bour did not practice in a substantially similar field as the two nurses and imaging technician who worked for the hospital.
On the first point, Fischer contends that the district court impermissibly expanded the language of the statute to require “individualized” certificates of merit for each defendant that “state with specificity” the manner of breach. He stresses that the statute does not use the terms “individualized” or “specificity.” Rather, it requires only that a “separate” certificate of merit affidavit be served on each defendant named in the petition. Fischer continues: “Not only is this requirement unsupported by the plain language of the statute, but it also contravenes the well-settled legislative objective of the statute ‘to simply require the certificate of one expert . . . to show that the plaintiff’s claim at least has colorable merit.’” (Quoting McHugh v. Smith, 966 N.W.2d 285, 289 (Iowa Ct. App. 2021)).
We agree with Fischer’s contention. The district court read specifications into section 147.140 beyond those the legislature drafted. We reject an interpretation that adds “unwarranted words of qualification” to a statute. Kelly v. Brewer, 239 N.W.2d 109, 115 (Iowa 1976). Contrary to the district court’s construction, paragraphs (1) and (2) of section 147.140(1)(b) require only a bare-bones certification that the expert is familiar with the
7 The court declined to reach “the issue of whether a plaintiff can utilize one omnibus certificate of merit for all defendants,” concluding that “Fischer’s certificate of merit did not contain the requisite information.”
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applicable standard of care and believes that it was breached. That basic certification must be served separately on each defendant. Iowa Code § 147.140(1)(c).
As Fischer points out, Dr. Bour’s affidavit followed that statutory framework verbatim. So Fischer’s filings contained the essential components prescribed by section 147.140, allowing Diagnostic Imaging to determine whether the estate had a colorable claim. See McHugh, 966 N.W.2d at 291. As we observed in McHugh, section 147.140 does not “supplant the requirements of Iowa Code section 668.11.” Id. at 288. Nor does it “preclude additional discovery and supplementation of the expert witness’s opinions in accordance with the rules of civil procedure.” Id. at 287–88 (quoting Iowa Code § 147.140(2)). The specificity requirement appended to the certificate of merit statute by the district court is incorporated in those later steps.
What’s more, Fischer also supplied the defendants with a separate affidavit of review from Dr. Bour (filed with the petition) that detailed in at least four paragraphs the expert’s expected testimony about various aspects of Dr. Digman’s performance and the expert’s opinion on how he breached the standard of care.8 Given that filing, Diagnostic Imaging could have no doubt that Fischer was pursuing a colorable claim for vicarious liability.
On the second point, Fischer argues that the district court erroneously required him to establish the expert’s qualifications before the sixty-day postanswer deadline. He posits that the court improperly merged the requirements for expert certification in section 147.139 with the mandatory content of the certificate of merit under section 147.140. While
8 In a deposition held after the filing of the original petition, Dr. Bour testified that after additional discovery, he changed his opinion that Dr. Digman was negligent, but that doesn’t make the certificate of merit deficient under the statute.
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acknowledging that section 147.140 requires the expert witness to “meet the qualifying standards of section 147.139,” Fischer insists “nothing in section 147.140 requires a plaintiff to list the expert’s qualifications or provide evidence of the expert’s background within the four corners of the certificate of merit itself.”
Again, we agree with Fischer that the district court read too much into the certificate-of-merit statute. The court mistakenly concluded that Dr. Bour’s affidavit was deficient because it lacked the details of his professional licensure. True, the expert witness providing the certificate of merit affidavit “must meet the qualifying standards of section 147.139.” Iowa Code § 147.140(1)(a). But the certificate of merit statute does not require the affidavit to list the expert’s qualifications. See id. § 147.140(1)(b). Instead, those qualifications may be “established by the evidence.” Id. § 147.139. 9 Because the court conflated the plaintiff’s burden under section 147.139 with
9 The evidence must show the following:
1. The person is licensed to practice in the same or a substantially similar field as the defendant, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended.
2. In the five years preceding the act or omission alleged to be negligent, the person actively practiced in the same or a substantially similar field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant.
3. If the defendant is board-certified in a specialty, the person is certified in the same or a substantially similar specialty by a board recognized by the American board of medical specialties, the American osteopathic association, or the council on podiatric medical education.
Iowa Code § 147.139.
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the mandates of the certificate of merit statute, dismissal with prejudice was the wrong remedy.
To further clarify, from our review of their appellee briefs, we find neither Diagnostic Imaging nor MercyOne have advanced a separate argument that Dr. Bour did not actually qualify as an expert witness under section 147.139. Instead, they limit their claims to Fischer’s compliance with section 147.140. Because the issue was not contested under section 147.139, we need not decide whether Fischer carried his burden to prove Dr. Bour’s qualifications.10 Cf. Jones v. Lindell, 32 N.W.3d 445, 453 (Iowa 2026).
On the third point, Fischer urges that Dr. Bour and the MercyOne employees practiced in substantially similar fields. See Iowa Code § 147.139(2). He faults the district court for failing to “address what differences it relied on to find that Dr. Bour’s fifteen years of practice as a radiologist and medical director of the entire radiology CT department placed him in substantially dissimilar field or specialty than a radiology technician or radiology nurse.”
While Fischer’s argument is compelling, we need not address the question of substantial similarity because it is not contested by MercyOne on
10 For what it’s worth, the district court record included Dr. Bour’s affidavit of review, his deposition, and his curriculum vitae, which showed that he was board-certified in diagnostic radiology by the American Board of Radiology, has a “current” medical license in Wisconsin, has been practicing in radiology since 2014, and has been an instructor in radiology at the University of Wisconsin School of Medicine and Public Health since 2014. And contrary to the district court’s considerations, his board certification is not tested against the imaging tech or nurses because they do not hold board certifications. See Iowa Code § 147.139(3) (“If the defendant is board-certified, the [expert must be] certified in the same or a substantially similar specialty . . . .” (emphasis added)).
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appeal. The hospital only argues that “[p]laintiff’s affidavit did not establish licensure, active clinical practice or teaching, board certification, or specialty similarity.” Because section 147.140 does not require that information to be packed into the expert’s affidavit, we decline to affirm on that basis.
If we were to address Fischer’s compliance with section 147.139(2), the record would support a finding that in the five years preceding the alleged acts of medical negligence, Dr. Bour “actively practiced in the same or a substantially similar field” or was “a qualified instructor at an accredited university in the same field” as the MercyOne employees.
Because the district court erred in dismissing Fischer’s petition under section 147.140, we reverse and remand for further proceedings.
REVERSED AND REMANDED.