Panek v. Iowa Methodist Medical Center

• Court: Court of Appeals of Iowa
• Decided: October 29, 2025
• Docket: 24-1838
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-1838 Filed October 29, 2025

ROBERT PANEK, Plaintiff-Appellant,

vs.

IOWA METHODIST MEDICAL CENTER a/k/a CENTRAL IOWA HOSPITAL CORPORATION a/k/a UNITY POINT HEALTH DES MOINES a/k/a CENTRAL IOWA HEALTH SYSTEM and UNKNOWN AND UNNAMED EMPLOYEE PHYSICIANS, NURSES, ANESTHESIOLOGISTS, AND OTHER MEDICAL STAFF, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.

A plaintiff appeals the district court’s grant of a motion to dismiss for failure

to file a certificate of merit in compliance with Iowa Code section 147.140 (2023).

AFFIRMED.

Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des

Moines, for appellant.

Erik P. Bergeland, Joseph F. Moser, and Jeffrey R. Kappelman of Finley

Law Firm, P.C., Des Moines, for appellees.

Considered without oral argument by Schumacher, P.J., and Badding and

Langholz, JJ. 2

SCHUMACHER, Presiding Judge.

Robert Panek appeals the district court’s ruling on a motion to dismiss

based on failure to provide a certificate of merit signed under oath as required

under Iowa Code section 147.140 (2023). Panek asserts the defendants

(collectively, Iowa Methodist) waived or were estopped in exercising the right to

file a motion to dismiss and that section 147.140 is unconstitutional and is void for

vagueness.

I. Background Facts & Proceedings

Panek was admitted to Iowa Methodist for a scheduled surgery in 2021.

After the surgery, he was discharged to a rehabilitation center. While in treatment

at Iowa Methodist, Panek developed bed sores, which were undocumented and

allegedly untreated. The bed sores were discovered at the rehabilitation center

and diagnosed as “unstageable and non-blanchable.”

Panek filed a petition and jury demand in Polk County District Court in 2023.

Under Iowa Code section 147.140, Panek timely served a certificate of merit upon

Iowa Methodist, which identified an expert witness and the expert’s opinions.

Discovery requests were served by both parties.

About eight months after the certificate of merit was served, Iowa Methodist

moved to dismiss pursuant to section 147.140 for failure to include a jurat or “under

the penalty of perjury” language within the certificate. The district court granted

the motion and dismissed the claim. 3

II. Discussion

We review district court rulings on motions to dismiss and determinations

on statutory construction for correction of errors at law. Miller v. Cath. Health

Initiatives-Iowa, Corp., 7 N.W.3d 367, 373 (Iowa 2024).

Panek asserts that Iowa Methodist had knowledge of its right to file a motion

to dismiss under section 147.140 and voluntarily waived that right by continuing

with discovery for over six months before filing the motion. Section 147.140 states:

(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. . . . (b) A certificate of merit affidavit must be signed by the expert witness and certify the purpose for calling the expert witness by providing under the oath of the expert witness all of the following: .... (6) Failure to substantially comply with subsection 1 shall result, upon motion, in dismissal with prejudice . . . .

Iowa Code § 147.140(1)(a)–(b), (6) (emphasis added). The parties do not dispute

that Panek provided to Iowa Methodist a certificate of merit within the sixty-day

deadline. And they agree that the certificate was not signed under oath or with

penalty-of-perjury language.

Our courts have determined that substantial compliance with

section 147.140 “under oath” language requires that the document qualify as an

affidavit. Miller, 7 N.W.3d at 373–74 (noting the statute “uses the term ‘affidavit’

six times, including in the title of the enactment”). To properly make an affidavit,

“there must be present at the same time the officer, the affiant, and the paper, and 4

there must be something done which amounts to the administration of an oath.”

Id. at 374–75 (citation omitted). Another method of satisfying an affidavit

requirement is through the signer’s self-attestation, certifying the contents of the

document by including “‘under penalty of perjury’ language.” Id. at 375. The

purpose of both methods is to assure the signer’s conscience is bound “and

emphasizes the obligation to be truthful.” Id.

To show a waiver of a constitutional or statutory right, such as the right to

file a motion to dismiss, the waiver must be “the voluntary or intentional

relinquishment of a known right.” Scheetz v. IMT Ins. Co., 324 N.W.2d 302, 304

(Iowa 1982) (citation omitted). The elements of a waiver are “the existence of a

right, knowledge, actual or constructive, and an intention to relinquish such right.”

Id. A waiver of a right can be shown through affirmative acts or inferred from

conduct. Id.

Iowa Methodist argues that it did not intend to waive its right under

section 147.140 to file a motion to dismiss by conducting discovery. Our supreme

court has determined defendants conducting discovery “do not constructively

waive their right to challenge deficient certificates of merit under

section 147.140(6).” Banwart v. Neurosurgery of N. Iowa, P.C., 18 N.W.3d 267,

277 (Iowa 2025) (cleaned up). During the pendency of this appeal, the court has

set a “bright line” for determining whether the right to file for dismissal has been

waived. See id. “Using the dispositive motion deadline as a bright line for

determining waiver avoids a fact-intensive inquiry into how much discovery is too

much. . . . Going forward, parties should rely upon this bright line . . . .” Id. at 277–

78 (emphasis added). 5

Here, Iowa Methodist moved to dismiss under section 147.140 on August 4,

2024, well before the dispositive motion deadline of April 15, 2025, and accordingly

did not waive their right to file the motion. See id. at 278. “[D]efendants may

control the timing of their motions for summary judgment, subject to the district

court’s dispositive motion deadline, without [waiving] their rights under

section 147.140.” Id.

This bright line procedural deadline forecloses Panek’s estoppel by

acquiescence argument as well. It would be paradoxical for Iowa Methodist to

“remain inactive for a considerable time,” acting “in a manner that leads the other

party to believe the act now complained of has been approved” before the

dispositive motion deadline. See Markey v. Carney, 705 N.W.2d 13, 21 (Iowa

2005) (cleaned up) (outlining the required elements of estoppel by acquiescence).

We determine the district court did not err in granting Iowa Methodist’s motion to

dismiss under Iowa Code section 147.140(6).

Concerning Panek’s argument asserting that section 147.140 is void for

vagueness, we review constitutional claims de novo. Formaro v. Polk Cnty., 773

N.W.2d 834, 838 (Iowa 2009). Our supreme court has held, “Iowa Code

section 147.140 is not unconstitutionally void for vagueness.” Banwart, 18 N.W.3d

at 276. And we do not have the authority to overturn supreme court precedent.

See Willock v. State, No. 24-0014, 2025 WL 1704327, at *1 (Iowa Ct.

App. June 18, 2025) (citing State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App.

2014)). Accordingly, we find the district court was correct in determining

section 147.140 is not void for vagueness.