Struck v. Mercy Health Services-Iowa Corp.

• Court: Court of Appeals of Iowa
• Decided: November 3, 2021
• Docket: 20-1228
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1228 Filed November 3, 2021

JACQUELINE STRUCK, Plaintiff-Appellant,

vs.

MERCY HEALTH SERVICES, IOWA CORP. a/k/a MERCY MEDICAL CENTER, SIOUX CITY, RODNEY J. DEAN, M.D., ALBERT OKINE, P.A., and EILEEN MIDDLETON, P.A., Defendants-Appellees,

and

JEREMY J. VANDE ZANDE, M.D. and ROBBIE L. ROBINSON, NP, Defendants. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Zachary

Hindman, Judge.

Jacqueline Struck appeals the dismissal of her personal injury action.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Thomp J. Pattermann of Law Office of Gallner & Pattermann, P.C., Council

Bluffs, for appellant.

Frederick T. Harris of Lamson Dugan & Murray, LLP, Omaha, Nebraska, for

appellee Mercy Health Services-Iowa Corp. Sioux City a/k/a Mercy Medical

Center. 2

John C. Gray of Heidman Law Firm, P.L.L.C., Sioux City, for appellees

Rodney J. Dean, M.D., Albert Okine, P.A., and Eileen Middleton, P.A.

Heard by Bower, C.J., Greer, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 3

DANILSON, Senior Judge.

Jacqueline Struck appeals the district court’s order granting the defendants’

motions to dismiss her personal injury action for failure to file expert witness

certificate of merit affidavits pursuant to Iowa Code section 147.140 (2020). Struck

challenges the court’s determination that expert testimony was necessary to

establish a prima facie case for “all [her] claims.” Upon our review, we agree the

petition is broad enough to encompass ordinary negligence claims against Mercy

Medical Center (Mercy) not requiring a certificate of merit affidavit, and such claims

should not have been dismissed. Thus, we affirm in part, reverse in part, and

remand.

I. Background Facts and Proceedings

In January 2018, Struck was a patient at Mercy when she “fell” and

sustained injuries. Two years later, Struck initiated this action against Mercy and

various medical professionals (physician Rodney Dean1; physician assistants

Albert Okine and Eileen Middleton; and nurse practitioner Robbie Robinson)

employed by Mercy, for damages arising from the fall, claiming she was improperly

medicated and supervised. The defendants moved to dismiss Struck’s claims for

failure to file a certificate of merit affidavit as required by Iowa Code section

147.140. Struck resisted and requested an extension of the deadline. Following

a hearing, the district court entered an order dismissing Struck’s petition with

prejudice. Struck appeals.

1Struck also named physician Jeremy Vande Zande as a defendant, but she later dismissed her claims against Dr. Vande Zande. 4

II. Standard of Review

We review dismissals for correction of legal error. Benskin, Inc. v. W. Bank,

952 N.W.2d 292, 298 (Iowa 2020). In doing so, we accept as true the factual

allegations set forth in the petition but not its legal conclusions. See id. A motion

to dismiss is granted only when there are no conceivable state of facts under which

the nonmoving party would be entitled to relief. Mormann v. Iowa Workforce Dev.,

913 N.W.2d 554, 565 (Iowa 2018). We also review questions of statutory

interpretation for correction of legal error. Doe v. State, 943 N.W.2d 608, 609 (Iowa

2020).

III. Analysis

Iowa Code section 147.140 requires a plaintiff who alleges “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,” to file within sixty days of the defendant’s answer “a certificate

of merit affidavit signed by an expert witness with respect to the issue of standard

of care and an alleged breach of the standard of care.” Iowa Code § 147.140(1)(a).

Failure to substantially comply with this requirement “shall” lead to “dismissal with

prejudice of each cause of action as to which expert witness testimony is

necessary to establish a prima facie case.” Id. § 147.140(6).

On appeal, Struck challenges the court’s finding that all her “possible

negligence claims” “relied upon professional negligence.” In other words, Struck 5

contends the court’s ruling “incorrectly presupposes” that all her claims required

expert testimony to establish a prima facie case.

Struck’s petition alleged: “Defendant Mercy Medical Center was negligent

in hiring and retaining Rodney Dean, MD, Albert Okine, PA, Robbie Robinson, NP

and Eileen Middleton, PA and non-party staff who were individually and jointly

responsible for her care and treatment”; “The professional negligence of [the

Defendants] was a violation of an acceptable standard of care”; and “As a direct

and proximal result of the negligence of the Defendants, . . . the Plaintiff

subsequently suffered and suffers from injuries and damages associated with the

aforementioned acts of negligence.” At hearing on the defendants’ motions to

dismiss, Struck’s counsel claimed a certificate of merit affidavit was not required

“on those claims, the ones regarding negligence,” arguing they “would not be

normally the opinion of an expert.”

The district court determined that a certificate of merit affidavit was required

with regard to both “categories” of claims raised in Struck’s petition, those with

regard to all defendants (professional negligence) and those with regard to only

Mercy (negligent hiring and retention). And because Struck failed to file a

certificate of merit affidavit in support of her claims within sixty days after the 6

defendants filed answers,2 the court concluded all of her claims should be

dismissed with prejudice.

Our interpretation of section 147.140(1) requires “any action” that “includes

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

case” is subject to the certificate-of-merit requirement. Struck concedes the court

properly dismissed her professional negligence claims “for failure to substantially

comply with [section] 147.140.”3 At oral argument, Struck acknowledged her only

remaining viable claims are against Mercy, relating to ordinary negligence not

requiring expert testimony.

Indeed, only a cause of action subject to the certificate-of-merit requirement

is subject to dismissal as provided in Iowa Code section 147.140(6). The district

court found, “[R]egardless of how Struck has chosen to label her claims against

Defendant Mercy—as professional negligence through respondeat superior; as

negligent hiring, or as negligent retention—all of her claims, given their factual

bases, require application of the modified duty applicable to medical

2 On appeal, Struck abandons her claim that the sixty days under section 147.140 was not triggered because not all the defendants had been served and filed answers. 3 Upon our review, we conclude the district court correctly applied the law in

concluding the requirements of section 147.140 applied to Struck’s claims of professional negligence and that Struck failed to substantially comply with those requirements. We affirm the court’s order granting the defendants’ motions to dismiss the claims of professional negligence of the health care providers. See Schmitt v. Floyd Valley Healthcare, No. 20-0985, 2021 WL 3077022, at *3 (Iowa Ct. App. July 21, 20201); McHugh v. Smith, ___ N.W.2d ___, ___, 2021 WL 1016596, at *6 (Iowa Ct. App. 2021); see also Schneider v. Jennie Edmundson Mem’l Hosp., No. 19-1642, 2021 WL 1016599, at *2–3 (Iowa Ct. App. Mar. 17, 2021) (discerning no abuse of discretion in the district court’s refusal to find good cause to grant the plaintiff’s motion for extension of time to file certificate of merit affidavit and affirming the dismissal of the plaintiff’s case). 7

professionals.” Cf. Schmitt, 2021 WL 3077022, at *2 (“The district court

determined that all but one of the Schmitts’ claims require expert witness testimony

on the question of standard of care. And although it found that one claim arguably

fell under the category of ‘nonmedical, administrative, ministerial, or routine care’

and for which the jurors were capable of comprehending and drawing correct

conclusions about the standard of care . . . , the court held causation still required

expert testimony. Despite the Schmitts’ claims that the breach of the standard of

care is so clear as to be obvious to a layperson, we find no error in the legal

conclusion that expert witness testimony is necessary to establish a prima face

case on each of the Schmitts’ medical malpractice claims.”). The district court

determined a certificate of merit affidavit was required for Mercy because Struck

sought to recover in an action (1) “for personal injury”; (2) “against a health care

provider”4; (3) ”based upon . . . alleged negligence in the practice of that . . .

occupation”; and (4) that “includes a cause of action for which expert testimony is

necessary to establish a prima facie case.” Accord Iowa Code § 147.140(1)(a);

see Uniform Jury Instruction No. 703.5 (setting forth the elements of a claim of

negligent hiring as requiring in part that “[t]he (employee’s) [incompetence]

[unfitness] [dangerous characteristics] was a cause of damage to the Plaintiff”);

Godar v. Edwards, 588 N.W.2d 701, 709 (Iowa 1999) (observing that a claim of

negligent hiring “likewise includes an action for negligent retention and negligent

supervision”); see also Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393,

4 See Iowa Code § 147.136A(1)(a) (defining health care provider). 8

402 (Iowa 2017) (noting that expert witness testimony is ordinarily required to

establish the applicable standard of care and its breach).

A hospital may, however, face both claims of professional negligence and

ordinary negligence. Iowa cases have noted the distinction and applicable

standard of care, as aptly summarized in Morton v. Fort Madison Community

Hospital as follows:

When a hospital is sued for negligence in respect to its “professional activities” the standard of care is “the care which is exercised by hospitals generally.” Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101 (Iowa 1971) (citing Dickinson v. Mailliard, 175 N.W.2d 588, 596 (Iowa 1970)). To establish the standard of care for professional activities, expert testimony is required. Id. at 102. The standard of care is different, however, when a negligence claim is based on the hospital’s “nonmedical, administrative, ministerial, or routine care.” Id. The applicable standard of care in these circumstances is “such reasonable care as the patient’s known condition may require.” Id. at 101. Expert testimony is unnecessary in these situations. Id. at 102.

No. 309CV00179HDVTJS, 2010 WL 11561523, at *2 (S.D. Iowa Sept. 22, 2010)

(interpreting Iowa cases). Although subsequent to Kastler, our supreme court

noted that although acts may “on the surface appear to have been ministerial and

thus subject to a standard of proof not requiring expert testimony,” “special

circumstances” may require expert testimony. Thompson v. Embassy Rehab. &

Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000).

Here, Struck argues that because her petition alleges “possible acts of

general negligence,” including premises liability and lack of supervision by non-

professional staff of Mercy that would not require expert testimony, these claims 9

should not have been dismissed. Accordingly, we must consider the contents of

the petition and the applicable principles.

In reviewing a petition, and in the absence of specific objection, it must be

“liberally construed in order to effectuate justice and the pleader will be accorded

the advantage of every reasonable intendment, even to implications necessarily

inferred.” Wenndt v. LaTare, 200 N.W.2d 862, 870 (Iowa 1968) (citing Coleman v.

Hall, 161 N.W.2d 329, 332 (Iowa 1968)). “If the prima facie elements of the claim

are stated, and this statement is fair notice to a defendant, the petition is sufficient.”

Lamantia v. Sojka, 298 N.W.2d 245, 247 (Iowa 1980). Iowa Rule of Civil

Procedure 1.403(1) requires the petition to include “a short and plain statement of

the claim showing that the pleader is entitled to relief and a demand for judgment

for the type of relief sought.”

Moreover, our caselaw has long held that a petition is not required to identify

a specific legal theory. See Soike v. Evan Matthews and Co., 302 N.W.2d 841,

842 (Iowa 1981) (concluding that requiring a plaintiff to identify a specific legal

theory is inconsistent with the concept of notice pleading). Our supreme court has

also stated in reference to the advent of notice pleading, “disposition of

unmeritorious claims in advance of trial must now ordinarily be accomplished by

other pretrial procedures which permit narrowing of the issues and piercing of the

bare allegations contained in the petition.” Haupt v. Miller, 514 N.W.2d 905, 909

(Iowa 1994) (quoting Am. Nat’l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986)).

Although many allegations in Struck’s petition are couched in terms of

professional duties and the breach of those duties, the well-pled facts reflect the

incident that gives rise to her claim for relief. The petition first explains the injuries 10

arose from a “slip and fall” incident. Secondly, it alleges that while hospitalized,

“Struck was suffering from dizziness and lightheadedness upon standing and fell

and struck her chin on the floor resulting in a laceration.” The petition further

alleges that “[a]s a direct and proximate result of the negligence of the Defendants,

Plaintiff Jacqueline Struck has sustained severe and permanent injuries.” The

petition also alleges negligence by “non-party staff.” We conclude the petition’s

allegations provide fair notice of a claim or claims against the hospital in addition

to the professional negligence claims against the medical professionals and

constitute a plain statement that Struck is entitled to relief. The question thus

becomes whether Struck’s petition includes a claim or claims of ordinary

negligence not requiring expert testimony.

We acknowledge a slip and fall in a hospital may be subject to a claim of

either professional negligence or ordinary negligence. One court observed, “[t]he

mere fact that a patient falls in a hospital will not normally determine whether expert

testimony is called for in a given case. Some fall cases require expert testimony;

others do not.” Washington Hosp. Ctr. v. Martin, 454 A.2d 306, 309 (D.C. 1982).

And as we have noted, our supreme court has concluded that special

circumstances may exist that require expert testimony even though the acts may

“on the surface appear to have been ministerial.” Thompson , 604 N.W.2d at 646.

The distinctions between the two in a hospital setting, and varied court decisions,

were elaborated upon in a dissenting opinion in Ditch v. Waynesboro Hospital, 17

A.3d 310, 311 (Pa. 2011) (Todd, J., dissenting) (observing a “gray area of how to

define the distinction between ordinary negligence and professional negligence in

this context” of whether a certificate of merit must be filed, and opining that “a 11

cause of action based in ordinary negligence” would “not require[] a certificate of

merit”). A review of Iowa appellate decisions provides additional examples of fact

scenarios, some requiring expert testimony, and others that did not require expert

testimony, for example Kastler, 193 N.W.2d at 101–02 (expert not required where

patient who suffered from dizziness fell in the shower), and Thompson, 604

N.W.2d at 646 (expert required where patient suffered from bedsore for failure to

properly position patient at care facility).5

Our legislature has adopted a method to quickly dismiss a claim of

professional negligence or any claim requiring expert testimony to establish a

prima facie case if a proper certificate of merit affidavit is not filed prior to the

commencement of discovery and within sixty days of the defendant’s answer. See

Iowa Code § 147.140(1)(a), (6). The difficulty is we are not resolving a motion for

summary judgment but rather a motion to dismiss before all the issues can be

more clearly defined.6 Moreover, we decline to attempt to “narrow the issues” or

“pierce” the allegations in the petition to prejudge whether Struck has any

remaining negligence claim not requiring expert testimony to establish a prima

facie case. To effectuate justice and give the pleader the advantage of all

reasonable intendments, we conclude the order dismissing all claims against

5 A complete review of our appellate decisions does not aid in the resolution of whether an expert is required here because Struck’s petition provides insufficient details regarding Struck’s fall to determine if an expert is required. 6 Accordingly, our ruling is limited to facts alleged in the petition; additional facts

will come to light in later proceedings. 12

Mercy was in error and Struck’s claim or claims of negligence of premises liability

and negligence of non-professional staff against Mercy remain viable.

If the district court determines after remand, and after the facts supporting

the surviving claims are fleshed out, that a claim requires expert testimony, then

the court should dismiss it as Struck did not challenge on appeal the district court’s

conclusion that she failed to timely file a certificate of merit.7 Struck concedes, and

we affirm, the dismissal of all claims against all the remaining defendants. We also

affirm the dismissal of any claims against Mercy relating to the negligent hiring,

retention, or supervision of professional staff as such claims would require expert

testimony. Accordingly, we affirm in part but reverse the dismissal of any claim or

claims of ordinary negligence against Mercy.8

7 There is a distinction between the use of expert testimony and whether expert testimony is essential to establish a prima facie case. See Davis v. Montgomery Cnty. Mem’l Hosp., No. 05-0865, 2006 WL 1896217, at *3–4 (Iowa Ct. App. July 12, 2006) (citing Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 142 (Iowa Ct. App. 1993)). 8 Struck’s counsel advised during oral arguments her claim includes premises

liability and negligent hiring, retention, and supervision of non-professional staff.