In the Iowa Supreme Court
No. 25–0671
Submitted March 24, 2026—Filed May 29, 2026
Michael Trask,
Appellant,
vs.
Amar F. Ahmed, Sandro Younadam, Shellie O’Brien-Perry, Kimberly A. Willich, and Oforbuike C. Ewelukwa,
Appellees.
Appeal from the Iowa District Court for Linn County, Lars G. Anderson,
Chief District Court Judge.
A plaintiff appeals the dismissal of his medical malpractice lawsuit as filed
beyond the statute of limitations after the district court held that the savings
statute, Iowa Code § 614.10, did not apply. Reversed and Remanded.
McDermott, J., delivered the opinion of the court, in which all justices
joined.
Brian O. Marty (argued) and Andrew B. Howie of Shindler, Anderson,
Goplerud & Weese, P.C., West Des Moines, for appellant.
Jeffrey R. Kappelman (argued), Connie L. Diekema, and Jacob T.
Wassenaar of Finley Law Firm, PC, Des Moines, and John A. Maschman,
Frederick T. Harris, and Olivia R. McDowell of Lamson Dugan & Murray, LLP,
West Des Moines, for appellees. 2
McDermott, Justice.
In this case, we must decide whether Iowa’s savings statute, which treats
a second lawsuit as a continuation of an earlier one, applies when a plaintiff in
a medical malpractice lawsuit voluntarily dismisses his original action after
serving defective certificates of merit under Iowa Code § 147.140 (2023). The
district court held that the savings statute did not apply and granted the
defendants’ motion to dismiss the plaintiff’s second lawsuit as filed beyond the
statute of limitations. The plaintiff appeals.
I.
Because this case involves an appeal from the denial of a motion to
dismiss, we accept the facts as alleged in the petition as true. McGill v. Fish,
790 N.W.2d 113, 116 (Iowa 2010). On January 10, 2018, Michael Trask
presented to the Mercy Hospital emergency department in Cedar Rapids with
lower abdominal pain. Dr. Gregory Frech examined him and ordered a CT scan.
A different physician, Dr. David Van Roeckel, reviewed the scan and documented
a potential small bowel obstruction, abdominal hernia, and a 2.6-centimeter
suspected mid-right renal mass, and recommended an abdominal MRI. Frech
reviewed Van Roeckel’s report and noted the bowel obstruction and hernia, but
he allegedly made no mention of the renal mass to Trask. Frech also made no
recommendation for further imaging in Trask’s documentation and did not
include the renal mass in Trask’s “problem list.”
Although Trask was admitted to the hospital that night, Frech allegedly
failed to communicate the abnormal finding to the hospital’s admitting or
surgical teams. Several members of Mercy’s medical staff examined Trask,
including an admitting physician, a nurse practitioner, and two doctors 3
conducting surgical consultations. Although each had reviewed the CT image or
Van Roeckel’s report, none made mention of the renal mass either in Trask’s
medical documentation or in communications with Trask. On January 11, Trask
had laparoscopic surgery to repair the hernia. Two days later, he was discharged
from the hospital without being informed of the mass in his kidney.
Almost a year and a half later, in July 2019, Trask saw Dr. Oforbuike
Ewelukwa at the Mercy Gastroenterology Clinic for chronic diarrhea and rectal
bleeding. Although Ewelukwa’s notes indicated that he personally reviewed the
earlier CT scan, he too failed to note the renal mass or to inform Trask about it.
Almost two years later, in June 2021, Trask’s primary care physician
ordered an MRI after some test results indicated a possible fatty liver. The MRI,
performed on July 26, revealed a cystic mass on Trask’s right kidney. In early
August, urological consultations at Mercy and the University of Iowa confirmed
that Trask had a five-centimeter complex cystic mass. In late September, Trask
underwent a right radical nephrectomy, completely removing the right kidney
and some surrounding tissue. The pathology report stated that the mass was
clear-cell carcinoma, confirming an approximately forty-five-month delayed
diagnosis of kidney cancer.
Trask filed a medical malpractice lawsuit on September 25, 2023. On
November 30, he filed and served certificates of merit for expert witnesses under
Iowa Code § 147.140. On May 24, 2024, we issued our opinion in Miller v.
Catholic Health Initiatives-Iowa Corp., 7 N.W.3d 367 (Iowa 2024), which held for
the first time that certificate-of-merit affidavits must be signed under oath or
under “penalty of perjury” to satisfy § 147.140. Id. at 376. On June 13, the
defendants, citing Miller, filed a joint motion for summary judgment, seeking a
dismissal with prejudice based on the noncompliant certificates. The motion was 4
timely filed under the trial scheduling order’s dispositive motion deadline. On
July 16, Trask filed a dismissal without prejudice of the lawsuit.
On November 22, Trask filed a new petition against the same defendants
alleging identical causes of action. The petition invoked Iowa Code § 614.10, the
“savings statute,” arguing that the second action should be deemed a
continuation of the first. The State of Iowa was dismissed as a defendant after
filing an unresisted motion to dismiss. The remaining defendants filed
pre-answer motions to dismiss, asserting that the savings statute did not apply
and thus the action was barred by the statute of limitations.
The district court granted the motions to dismiss, holding that the savings
statute did not apply because the initial lawsuit did not “fail” within the meaning
of the statute since Trask could have resisted the summary judgment motion
rather than dismissing the case. Alternatively, the district court held that the
failure of the original action was due to Trask’s own negligence in failing to
properly prepare the certificates of merit. Trask appeals.
II.
Trask contends that the district court erred in dismissing the case. He
argues that the savings statute in Iowa Code § 614.10 applies in this situation,
making the second lawsuit a continuation of the original and preserving his
claims as timely filed.
When ruling on a motion to dismiss, the court generally considers only the
petition and matters subject to judicial notice. Meade v. Christie, 974 N.W.2d
770, 775 (Iowa 2022). In ruling on a motion to dismiss, we accept factual
allegations as true, but not legal conclusions. Struck v. Mercy Health Servs.-Iowa
Corp., 973 N.W.2d 533, 538 (Iowa 2022). Trask’s petition in the second lawsuit
includes a section addressing the savings statute’s application and specifically 5
pleads that “[t]his action is subject to Iowa Code § 614.10’s saving’s provision.”
In ruling on the defendants’ motion to dismiss, we will consider the filings from
the original lawsuit referred to in the new petition. See King v. State, 818 N.W.2d
1, 6 n.1 (Iowa 2012) (stating that in ruling on a motion to dismiss for failure to
state a claim, the court may consider documents referenced in the petition even
if they were not attached).
A statute of limitations is a law that sets a time limit for filing a legal action.
Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 93 (Iowa 2002). The statute of
limitations applicable here, Iowa Code § 614.1(9)(a), provides that causes of
action for medical malpractice must be brought “within two years after the date
on which the claimant knew, or through the use of reasonable diligence should
have known, or received notice in writing of the existence of, the injury or death
for which damages are sought.” Trask claims to have first learned of the mass
on his kidney after the MRI on July 26, 2021. The second lawsuit was filed on
November 22, 2024. If the savings statute doesn’t apply, the second lawsuit is
indisputably barred by the two-year statute of limitations.
The savings statute, Iowa Code § 614.10, allows a second lawsuit to
proceed as a continuation of a prior lawsuit in certain situations, even if the
statute of limitations has expired. The statute states:
If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall be held a continuation of the first.
Iowa Code § 614.10. Although “savings statutes are not ordinarily designed to
swallow entirely the ordinary restrictions of a statute of limitation,” they help “to
strike a proper balance between the competing policies of providing a plaintiff
with a meaningful opportunity to be heard while providing a defendant with the 6
certainty and stability afforded by a statute of limitations.” Furnald v. Hughes,
804 N.W.2d 273, 276 (Iowa 2011).
In our most recent savings statute case, Furnald v. Hughes, we addressed
the statute’s “fails therein” language and whether a voluntary dismissal of a case
could constitute failure for purposes of granting relief. Id. at 274. Our savings
statute cases generally reveal a tension between voluntary dismissals and the
requirement that a case must “fail” through no negligence of the plaintiff. In
Archer v. Chicago, B. & Q.R. Co., our first case on this issue, the plaintiff
dismissed his original action because he doubted he would receive a fair trial in
federal court. 22 N.W. 894, 895 (Iowa 1885). We held that the second lawsuit did
not qualify under the savings statute because mere belief of unfairness was
insufficient to establish failure in the action without facts indicating that
dismissal was somehow compelled by the circumstances. Id. at 894–95. We
reasoned that although “[a] voluntary dismissal under compulsion” may come
within the savings statute, if a party voluntarily dismisses without making “some
effort to prepare and try his action,” the case has not “failed” within the meaning
of the statute. Id. at 894–95.
We applied the same principle in Pardey v. Town of Mechanicsville, where
a plaintiff dismissed her case after learning her star witness had been induced
into intoxication on the day of trial. 83 N.W. 828, 828 (Iowa 1900). Because the
plaintiff chose dismissal over a continuance, which would have allowed the
witness time to sober up, we deemed the dismissal “voluntary, not compulsory”
and thus evidence of “negligence in its prosecution.” Id. at 829. Similarly, in
Ceprley v. Incorporated Town of Paton, a plaintiff dismissed his case when faced
with unexpected evidence. 95 N.W. 179, 180 (Iowa 1903). We again denied relief
under the savings statute, holding that diligence required the plaintiff to use 7
“any other way open to him,” such as a continuance to locate rebuttal witnesses,
to avoid dismissing the action. Id.
In this case, the district court held that Trask failed to satisfy the savings
statute because he could have resisted summary judgment, finding “no failure
of the first action because there were other potential procedural options
available.” The district court also deemed Trask’s failure to serve compliant
certificates of merit “to be a matter . . . of [his] own negligence,” further
preventing application of the statute.
Trask argues that the district court erred on both points, claiming that he
was not required to resist the summary judgment motions for the savings statute
to apply and that the failure did not result from negligence. He points to our
decision in Miller as rendering the certificates of merit in the original lawsuit
noncompliant and leaving no viable path forward. Proving failure under the
savings statute, he argues, does not require a plaintiff to pursue methods that
have no meaningful chance of success.
Trask’s argument finds support in our caselaw. In Weisz v. Moore, a
plaintiff’s lawyer received a telephone message from the presiding judge on a
Wednesday afternoon stating that his client’s case would be called for trial the
next morning. 265 N.W. 606, 610 (Iowa 1936). The client lived 250 miles, and
the lawyer 150 miles, from the place of trial. Id. Because the lawyer and client
had to travel such a distance, the lawyer called the judge to ask for “a delay of
the trial for a few days.” Id. at 608. Because of other obligations, the judge
responded that he couldn’t delay the trial beyond the following day unless the
defense counsel consented. Id. at 610. The defendants refused the request, and
after another unsuccessful call with the judge to find an alternate date, the 8
plaintiff’s lawyer voluntarily dismissed the case without prejudice. Id. When the
plaintiff refiled his petition, the statute of limitations had expired. Id. at 607–08.
The district court in Weisz dismissed the second lawsuit as beyond the
limitations period, rejecting the plaintiff’s argument that the savings statute
applied. Id. at 608. On appeal, the plaintiff argued that his calls with the judge
and defense counsel made clear that filing a motion to continue would be
ineffectual and that his voluntary dismissal was thus made “under compulsion.”
Id. at 609. We reversed, reasoning that filing a formal motion to continue was
unnecessary under the circumstances. Id. at 610.
Trask contends that resisting summary judgment after Miller would have
been a futile exercise. The petition alleges that our holding in Miller renders
Trask’s certificates of merit defective, which in turn triggers dismissal of the
claims under § 147.140(6). Our court’s post-Miller certificate-of-merit cases have
cemented Miller’s result. In Banwart v. Neurosurgery of North Iowa, P.C., we
reaffirmed Miller’s interpretation of § 147.140, holding that a written affirmation
did not substantially comply with the statute’s requirements. 18 N.W.3d 267,
272–75 (Iowa 2025). We also rejected the Banwart plaintiffs’ arguments that the
defendants had waived the right to challenge the defective certificates because
they engaged in years of discovery before moving to dismiss the case. Id. at 276.
And more recently, in Rarick v. Smidt, ___ N.W.3d ___, 2026 WL 1441855 (Iowa
May 22, 2026), we again relied on Miller to hold that a similar certificate failed to
substantially comply with the statute’s “affidavit” requirements. Id. at ___,
2026 WL 1441855, at *5–7.
As established in Weisz, a plaintiff is not required to exhaust futile
procedural maneuvers to fall within the protection of the savings statute. A
critical distinction exists regarding the viability of procedural options between 9
this case and those analyzed in Furnald. In Archer, Pardey, and Ceprley, a
continuance was a viable remedy that could have cured underlying issues like a
witness’s intoxication or missing testimony; because those claims could be
meaningfully pursued, they had not yet “failed.” See Archer, 22 N.W. at 894–95;
Pardey, 83 N.W. at 829; Ceprley, 95 N.W. at 180. By contrast, where the law
leaves no viable path forward, a party acts under compulsion, and a voluntary
dismissal satisfies the statute’s failure requirement. See Weisz, 265 N.W. at 609–10.
As Weisz confirms, nothing in the savings statute requires a plaintiff to pursue
ineffectual legal maneuvers as a prerequisite for relief. Id. at 610.
The defendants argue that even if the initial claims failed, the savings
statute categorically excludes the defective certificate issues that prompted the
voluntary dismissal. In support, the defendants rely on our observation in
Furnald that the savings statute is a tool to “prevent minor or technical mistakes
from precluding a plaintiff from obtaining his day in court and having his claim
decided on the merits.” 804 N.W.2d at 276 (emphases added). Upon closer
examination, however, this characterization was too narrow, focusing more on
the facts we were addressing in Furnald than any actual restriction imposed by
the statute’s text. The plain language of the savings statute authorizes relief “for
any cause except negligence in its prosecution,” encompassing both minor
technicalities and significant substantive errors alike. Iowa Code § 614.10
(emphasis added). However one might characterize a missing attestation on a
certificate of merit, there is nothing in the savings statute’s text that strictly
limits its application to a particular species or magnitude of “failure.”
The defendants further argue that the savings statute does not apply
because Trask cannot prove that the failure was “for any cause except negligence
in its prosecution.” Iowa Code § 614.10. In their view, Trask’s failure to ensure 10
that the certificates were properly sworn in the first lawsuit was negligent, and
merely because no case had declared an improperly sworn certificate defective
until Miller doesn’t change the analysis. As they note, § 147.140 has always
contained an affidavit requirement, and “Miller simply enforced the statutory
requirement that had been in effect since [its] enactment in 2017,” Tarbox ex rel.
S.K. v. Obstetric & Gynecologic Assocs. of Iowa City & Coralville, P.C., 13 N.W.3d
546, 570 n.5 (Iowa 2024) (Waterman, J., concurring). Because Miller didn’t
change anything, the defendants contend, the defective certificates were always
the product of negligence and the lawsuit thus subject to dismissal even before
we handed down Miller.
But even when a ruling establishes what a statute has “always” meant, it
doesn’t follow that a lawyer who previously read the language differently was
negligent. “[A]n attorney is not liable for an error in judgment on points of new
occurrence or of nice or doubtful construction or for a mistaken opinion on a
point of law that has not been settled by a court of last resort and on which
reasonable doubt may well be entertained by informed lawyers.” Martinson
Mfg. Co. v. Seery, 351 N.W.2d 772, 775 (Iowa 1984) (quoting 7 Am. Jur. 2d
Attorneys at Law § 201 (1980)). Clairvoyance in predicting judicial outcomes is
not a job requirement for lawyers. Devine v. Wilson, 373 N.W.2d 155, 158
(Iowa Ct. App. 1985) (en banc) (“An attorney is not required to predict future
Supreme Court decisions which clarify the law.”); see also Eads v. Cmty. Hosp.,
932 N.E.2d 1239, 1244 (Ind. 2010) (“Given this lack of clarity as to the precise
boundaries of [Indiana’s medical malpractice statute’s] application, it is not
necessarily negligent to have failed to predict where the courts would come down
on the application of the statute to a set of facts alleging negligence at the
periphery of medical malpractice.”). 11
Equating an ultimately rejected statutory interpretation with negligence
would create an unfairly exacting standard for lawyers. Indeed, if every incorrect
legal conclusion constituted negligence, then every overturned trial judge and
every dissenting appellate judge would be negligent. The operative inquiry is not
whether the lawyer’s understanding was eventually endorsed by an appellate
court, but whether that understanding was reasonable at the time it was formed.
“It is the generally accepted rule that mere errors in judgment by a lawyer are
not grounds for negligence, at least where the lawyer acts in good faith and
exercises a reasonable degree of care, skill and diligence.” Baker v. Beal,
225 N.W.2d 106, 112 (Iowa 1975).
In Wilson v. Wright, we addressed whether a lawyer’s failure to timely file
a petition—resulting from a misunderstanding of a recent statutory
amendment—constituted negligence barring application of the savings statute.
189 N.W.2d 531, 532–33 (Iowa 1971). The lawyer had delivered a petition to the
clerk’s office on a Friday evening, but because the clerk did not make the
required docket memorandum until the following Monday, the district court held
that the petition was not “filed” on the date stated in the original notice. Id. at
532. In analyzing the negligence inquiry, we focused on whether the lawyer’s
interpretation of the filing requirements was reasonable under the
circumstances. Id. at 533–34. We concluded that the lawyer was not negligent
because his interpretation of the filing statute was a plausible interpretation of
the new amendment. Id. at 533–34. Because the statute was susceptible to the
interpretation that the filing date is the date of physical delivery—even if the filing
is not considered complete until the clerk dockets it—we held that the lawyer’s
reading of the statute was “not so unreasonable as to constitute negligence.” Id.
at 534. We thus allowed the second lawsuit to proceed. Id. 12
An Iowa federal court reached a similar conclusion when deciding if a
mistaken legal interpretation counts as “negligence” under Iowa’s savings
statute. In Doe v. Hartz, a plaintiff’s original lawsuit was dismissed by the Eighth
Circuit Court of Appeals after determining that her Violence Against Women Act
(VAWA) claim—which served as the basis for federal jurisdiction—was
unavailing. 52 F. Supp.2d 1027, 1035, 1043 (N.D. Iowa 1999). When the plaintiff
refiled her remaining claims under the savings statute, the defendants argued
that the claims were not “saved” because the initial dismissal resulted from the
plaintiff’s negligence in asserting the untenable VAWA claim. Id. at 1040–42. The
district court rejected this argument, stating that the claim’s adequacy “turned
on close questions of statutory interpretation, or at a minimum, on a complex
interaction of law and fact.” Id. at 1043. It noted that the questions were difficult
enough to split the appellate panel and cause the district court itself to originally
reach a different conclusion. Id. “The fact that [her] assertion of a VAWA claim
was later shown in the course of litigation to be incorrect,” the court stated, “does
not, without more, amount to negligence in prosecution.” Id.
Wilson requires us to consider whether Trask acted reasonably when he
filed the defective certificates of merit in the first lawsuit. Strong evidence
suggests that the initial certificates were based on a reasonable, widely held
understanding of § 147.140’s requirements. Notably, the defendants did not
move to dismiss based on the certificates’ defects until after the Miller decision.
This delay suggests that four separate sets of counsel (two sets for plaintiffs, two
sets for defendants) initially viewed the certificates as compliant, or at least
representing a reasonable interpretation of the statute’s requirements. This delay
also belies the defendants’ claims in their appeal brief about the clarity or
obviousness of the affidavit requirements. 13
What’s more, the existence of similarly defective certificates in numerous
lawsuits filed before Miller that were dismissed after Miller, see, e.g., Panek v.
Iowa Methodist Med. Ctr., No. 24–1838, 2025 WL 3023008, at *1 (Iowa Ct. App.
Oct. 29, 2025) (timely 2023 certificate, unsworn and without a jurat or “penalty
of perjury” language); Est. of Spieker v. Cath. Health Initiatives – Iowa, Corp.,
No. 24–1599, 2025 WL 2925143, at *1 (Iowa Ct. App. Oct. 15, 2025) (2021
certificate signed by the expert but neither sworn nor made under penalty of
perjury); Frank v. Hallman, No. 24–0998, 2025 WL 2537920, at *1 (Iowa Ct. App.
Sep. 4, 2025) (unsworn certificate under the 2020 statute); McGonigle v. Finley
Hosp., No. 24–1349, 2025 WL 2538778, at *2 (Iowa Ct. App. Sep. 4, 2025)
(unsworn certificate, originally filed in a prior federal action), and the fact that
district courts in both Miller and Banwart reached conclusions that were later
reversed, see Miller, 7 N.W.3d at 370; Banwart, 18 N.W.3d at 275, to say nothing
of our own court’s disagreements about what constitutes “substantial
compliance” under the statute’s requirements, see Rarick, ___ N.W.3d at ___, ___,
2026 WL 1441855, at *12–20, *20–22 (three justices dissenting in two separate
opinions); Banwart, 18 N.W.3d at 278–84 (two justices dissenting), all send
strong signals that § 147.140’s requirements were previously of “nice or doubtful
construction.” Martinson Mfg. Co., 351 N.W.2d at 775. All in all, we find Trask’s
interpretation reasonable under the circumstances.
Because the defective certificates of merit in the first lawsuit established
“failure” without the need for Trask to file a doomed resistance to the defendants’
summary judgment motion in the wake of Miller, and because the first lawsuit’s
failure did not result from negligence in its prosecution, we hold that Trask has
established the savings statute’s application on these facts. As a result, we 14
conclude that the savings statute applies and that the district court erred in
dismissing his second lawsuit as untimely.
III.
For these reasons, we reverse the district court ruling dismissing the case
and remand for further proceedings.
Reversed and Remanded.