Jorgensen v. Smith

1

Charlene Jorgensen and Michael Jorgensen, Appellees, v. Adam B. Smith, M.D.; Adam Smith, M.D., P.C.; and Tri-State Specialists, L.L.P., Appellants.

No. 22-0576

Supreme Court of Iowa

February 9, 2024

Submitted November 15, 2023

Appeal from the Iowa District Court for Woodbury County, Jeffrey L Poulson, Judge.

A clinic sought interlocutory review of a district court order denying the clinic's motion for summary judgment as to a claim of negligent retention. Affirmed and Remanded.

Jeff W. Wright (argued) and Zack A. Martin of Heidman Law Firm P.L.L.C., Sioux City, for appellants.

Michael D. Bornitz (argued) of Cutler Law Firm, LLP, Sioux Falls, South Dakota, and William D. Sims of Northern Plains Justice, LLP, Sioux Falls, South Dakota, for appellees.

OPINION

May, Justice.

An injured patient claims that a clinic was negligent in retaining a surgeon who was unfit to practice surgery. The main question before us is whether Iowa Code section 147.140 (2018) required the patient to produce a "certificate of merit affidavit" containing an expert's opinion that the clinic had breached the applicable standard of care by retaining the surgeon. Based on the particular record and arguments before us, we answer that question in the negative.

I. Background.

A. The Parties and Their Relationships. The plaintiffs, Charlene and Michael Jorgensen, are married. Charlene underwent surgeries in 2016 and 2018. Both surgeries were performed by defendant Adam Smith, M.D. (Dr. Smith). At that time, Dr. Smith was a licensed physician who held himself out as a specialist in plastic surgical care. Dr. Smith was the only employee of defendant Adam Smith, M.D., P.C. (Smith P.C.). Smith P.C. employed Dr. Smith to provide medical services on behalf of defendant Tri-State Specialists, L.L.P. (Tri-State). Tri-State operates as a clinic for surgeons and other specialists.

B. The Jorgensens' Petition. In May 2020, the Jorgensens brought this suit against Dr. Smith, Smith P.C., and Tri-State. The Jorgensens allege that Dr. Smith botched the 2018 surgery and that all three defendants were liable for the resulting damages. But the Jorgensens do not allege the same kinds of claims against all three defendants. As to Dr. Smith, the Jorgensens allege medical negligence and lack of informed consent. As to Smith P.C., the Jorgensens allege medical negligence and respondeat superior. As to Tri-State, the Jorgensens allege respondeat superior and negligent "hiring, supervising, employing, and/or retaining." This last claim against Tri-State is at the center of this appeal. At oral argument, the Jorgensens' counsel clarified that this claim is about negligent retention.

C. The Jorgensens' Negligent Retention Claim. In brief summary, the negligent retention claim is based on the idea that Tri-State knew or should have known that Dr. Smith was unfit to practice surgical medicine and, therefore, TriState was negligent in retaining Dr. Smith. Put another way, the Jorgensens believe that Tri-State was negligent in failing to discharge Dr. Smith before he could harm Charlene in the 2018 surgery.

The Jorgensens give a host of reasons why Tri-State was obligated to discharge Dr. Smith. For one thing, the Jorgensens claim that Dr. Steele-a surgeon who previously worked for Tri-State-made verbal reports to Tri-State about Dr. Smith's improper surgical practices. Then, after Tri-State fired Dr. Steele, Dr. Steele sent a letter to Tri-State. The letter raised a wide range of concerns about Dr. Smith, including claims of "rampant malpractice and widespread insurance fraud." Dr. Steele's letter and his verbal reports were all provided to Tri-State well before the 2018 surgery.

D. The Jorgensens' Certificate of Merit. In June 2020, the defendants filed their answer to the Jorgensens' petition. The filing of the defendants' answer started a sixty-day clock under Iowa Code section 147.140(1)(a). We will discuss section 147.140 at some length below. In brief summary, though, in some actions against health care providers, section 147.140 requires the plaintiff to serve a "certificate of merit affidavit" within "sixty days of the defendant's answer." Id. The affidavit must be signed under oath by an expert witness. Id. And it must include a statement by the expert that the applicable standard of care was breached. Id.

In an effort to comply with this requirement, the Jorgensens timely served a certificate of merit affidavit. Their affidavit was signed under oath by Dr. Mark Jewell, a licensed plastic surgeon. In the affidavit, Dr. Jewell certified that he had reviewed medical records relating to the 2018 surgery and follow-up care.

He further certified "to a reasonable degree of [his] medical surgical experience and knowledge that [Dr. Smith] breached the standard of care with respect to" both the 2018 surgery and the follow-up care.

But Dr. Jewell's affidavit did not address whether Tri-State should have discharged Dr. Smith prior to the 2018 surgery. Nor did the Jorgensens file a separate affidavit by a different expert to address Tri-State's failure to discharge Dr. Smith.

E. The Jorgensens' Expert Designation. In September 2021, the Jorgensens designated a single expert witness, Dr. Michael Edwards, to testify at trial. Dr. Edwards is a board-certified plastic surgeon. In his report, Dr. Edwards opined "that Dr. Smith fell below the accepted standard of care in the treatment of [Charlene] in the evaluation, planning[,] and conduct of her" surgical care.

But Dr. Edwards's report did not offer any opinion as to whether Tri-State should have discharged Dr. Smith prior to the 2018 surgery. Nor did the Jorgensens designate any other expert to address Tri-State's failure to discharge Dr. Smith.

F. The Defendants' Summary Judgment Motion. A couple months later, the defendants moved for partial summary judgment. The defendants' motion sought dismissal of the Jorgensens' negligent retention claim. As support for their motion, the defendants raised two arguments. First, the defendants noted that the Jorgensens' certificate of merit affidavit had only addressed Dr. Smith's negligent surgical care. The Jorgensens had not filed a separate certificate of merit affidavit to address Tri-State's alleged negligence in retaining Dr. Smith. Therefore, in the defendants' view, section 147.140 required dismissal of the negligent retention claim.

Second, the defendants argued that the Jorgensens had also failed to comply with Iowa Code section 668.11. Section 668.11 generally requires plaintiffs "in a professional liability case brought against a licensed professional" to disclose their experts "within one hundred eighty days of the defendant's answer." Id. In the defendants' view, section 668.11 required the Jorgensens to designate an expert who would opine that Tri-State was negligent in retaining Dr. Smith. Because the Jorgensens did not do so, the defendants argued, the negligent retention claim should be dismissed.

G. The District Court's Summary Judgment Ruling. The district court denied the defendants' request for summary judgment. As support for its ruling, the court gave two reasons. First, the court found that although Tri-State "is a health facility and within the type of cases included in [section] 147.140," the negligent retention claim "is not a question of professional medical care, but is within the ambit of 'nonmedical, administrative, or ministerial acts.'" (Quoting Hall v. Jennie Edmundson Mem'l Hosp., 812 N.W.2d 681, 684 (Iowa 2012).) Therefore, the court reasoned, "[n]o expert testimony is required to establish a prima facie case and no certificate of merit affidavit is required."

Second, the court noted that even in cases about medical care, expert testimony isn't always required to establish a prima facie case. "Where lack of care is so obvious as to be within the comprehension of a lay person and requires only common knowledge to understand, no expert testimony is required," the court noted. And under "the facts of this case," the court believed that "the alleged facts" supporting the negligent retention claim "are so obvious as to be within this exception."

H. Reconsideration and Interlocutory Appeal. The defendants asked the district court to reconsider its ruling. The court denied the defendants' request.

The defendants then asked our court to grant interlocutory appeal. We granted that request.

II. Merits.

In this interlocutory appeal, the defendants contend that summary judgment was required by Iowa Code section 147.140 or, in the alternative, section 668.11. We address each statute in turn.

A. Our Review. We review the district court's interpretation of statutes for correction of errors at law. Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 538 (Iowa 2022). We are guided by familiar principles of statutory interpretation. We focus on the words of the legislature. Copeland v. State, 986 N.W.2d 859, 865 (Iowa 2023). Generally, we give those words "their common, ordinary meaning in the context within which they are used." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014). But when the legislature defines its words, we are bound by those definitions. See State v. Iowa Dist. Ct., 889 N.W.2d 467, 471 (Iowa 2017).

B. Iowa Code Section 147.140. We begin our statutory interpretation by examining the words of Iowa Code section 147.140(1)(a), which states in part:

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 . . . serve upon the defendant a certificate of merit affidavit signed by an

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