DES MOINES, Iowa (Legal Newsline) - Iowa legislators meant what they said when they passed a law requiring medical malpractice plaintiffs to submit an expert’s affidavit, signed under penalty of perjury and certifying their case has merit, the Iowa Supreme Court ruled.
The high court overruled a trial judge’s decision that an expert report unaccompanied by a signed affidavit substantially complied with the law.
“A contrary holding would undermine many Iowa statutes requiring sworn statements or verifications,” the court said.
Meredith Miller was injured in a 2019 accident when the car her daughter was driving hit a tree. She died in MercyOne Des Moines Medical Center after an airway device was mistakenly placed in her esophagus instead of her trachea.
Miller’s husband Darrin sued MercyOne, several physicians and the Iowa Department of Transportation, arguing the doctors committed malpractice and Iowa had failed to remove the tree Miller’s car hit.
Darrin Miller filed his lawsuit on Oct. 28 2021. The doctors filed their answer on Dec. 23, starting the 60-day clock under the malpractice statute for providing certificate of merit affidavits.
Miller hired Dr. Lynette Mark, a professor of anesthesiology and critical care medicine at Johns Hopkins, and Dr. Mustapha Saheed, an emergency medicine physician at Johns Hopkins Medical Center, as experts. Dr. Mark returned a signed report alleging malpractice on Feb. 21, but didn’t include an affidavit or signed oath. Dr. Saheed never supplied a certificate of merit.
On May 12, 2022, the defendants moved to dismiss for failure to comply with the statute requiring sworn certificates of merit. Miller’s lawyers argued the report she submitted “substantially complied” with the law. Dr. Mark submitted a sworn affidavit on June 2 – more than three months after the deadline expired.
Polk County Judge Joseph Seidlin denied the motions to dismiss and the defendants sought interlocutory review from the Iowa Supreme Court, which agreed to hear their appeal. It reversed the trial judge in a May 24 decision written by Justice Thomas Waterman. The court rejected arguments an expert’s report, without a signed affidavit, substantially complies with the law.
“The statute `enables healthcare providers to quickly dismiss professional negligence claims that are not supported by the requisite expert testimony,’” the court said, citing previous rulings including one where a plaintiff presented a report from a retired physician when the law requires experts to be licensed doctors.
“We do not question Dr. Mark’s veracity,” the court concluded, “but we do not second guess the legislature’s choice to require certificates of merit to be signed under oath. This requirement can help weed out weak cases early when experts are deterred by the risk of criminal penalties for perjury and decline to sign the requisite certificate under oath.”
The Iowa Association for Justice, representing trial lawyers, filed a brief arguing the oath requirement in the statute is void for vagueness. The Supreme Court declined to take up the question, which hadn’t been raised in the court below.
In a final footnote, the court said plaintiffs can avoid having their case dismissed with prejudice, meaning they can never file it again, by voluntarily dismissing the petition and refiling it with the required paperwork later.