Schneider v. Jennie Edmundson Mem'l Hosp.

958 N.W.2d 610 (Table)

Janet SCHNEIDER, Individually and as Executor for the Estate of Richard C. Schneider, deceased, Plaintiff-Appellant,

v.JENNIE EDMUNDSON MEMORIAL HOSPITAL d/b/a Methodist Jennie Edmundson, Physicians Clinic, Inc., Accelecare Wound Professionals, LLC, Alegent Health—Bergan Mercy Health System d/b/a CHI Health Mercy Council Bluffs, Oakland Healthcare Management, LLC, d/b/a Oakland Manor, Midwest Geriatric Management, LLC, d/b/a MGM Healthcare d/b/a Oakland Manor, and Gregory V. Stanislav, MD, Defendants-Appellees.

No. 19-1642

Court of Appeals of Iowa.

Filed March 17, 2021

Christopher P. Welsh of Welsh & Welsh, PC, LLO, Omaha, Nebraska, and John W. Kocourek, Council Bluffs for appellant.

Aaron J. Redinbaugh and Frederick T. Harris of Finley Law Firm, PC, Des Moines, for appellee Jennie Edmundson Memorial Hospital d/b/a Methodist Jennie Edmundson and Physicians Clinic, Inc.

Blake R. Hanson and Scott Wormsley of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Oakland Healthcare Management, LLC, d/b/a Oakland Manor, and Midwest Geriatric Management, LLC, d/b/a MGM Healthcare d/b/a Oakland Manor.

Patrick G. Vipond and Tiffany S. Boutcher of Lamson, Dugan & Murray, LLP, Omaha, Nebraska, for appellee Alegant Health—Bergan Mercy Health System d/b/a CHI Health Mercy Council Bluffs.

Robert M. Slovek of Kutak Rock LLP, Omaha, Nebraska, for appellees Gregory V. Stanislav, MD and Accelecare Wound Professionals, LLC.

Heard by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.

VAITHESWARAN, Presiding Judge.

This appeal implicates Iowa Code section 147.140 (2018), which became effective on July 1, 2017. See 2017 Iowa Acts ch. 107 §§ 4, 5. The provision requires a plaintiff who alleges medical malpractice and relies on expert testimony to make a prima facie case, to "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." Iowa Code § 147.140(1). The plaintiff is to serve the certificate "prior to the commencement of discovery in the case and within sixty days of the defendant's answer," unless the parties agree to an extension, or unless the plaintiff files a motion for extension of time within the sixty-day period and the court finds good cause for an extension. Id. § 140.147(1), (4). "Failure to substantially comply with" the certificate requirement "shall result, upon motion, in dismissal with prejudice of each cause of action as to which expert witness testimony is necessary to establish a prima facie case." Id. § 140.147(6).

In 2018, Janet Schneider, individually and as executor of the estate of her husband Richard Schneider, filed a claim "for wrongful death ... pursuant to Iowa Code 633.336"¹ against Jennie Edmundson Memorial Hospital d/b/a Methodist Jennie Edmundson; Physicians Clinic, Inc.; Accelecare Wound Professionals, LLC; Alegent Health—Bergan Mercy Health System d/b/a CHI Health Mercy Council Bluffs; Oakland Healthcare Management, LLC d/b/a Oakland Manor; Midwest Geriatric Management LLC d/b/a MGM Healthcare d/b/a Oakland Manor; and Gregory Stanislav, M.D. In her original and amended petition, she alleged her husband was admitted to Oakland Manor on December 30, 2016, with pressure injuries; he "subsequently received treatment for his injuries"; and he passed away on November 1, 2017. She claimed the defendants (1) "breached their duty ... to possess and use the care, skill, and knowledge ordinarily possessed and used under like circumstances by other health care providers, physicians, and members of their respective professions"; (2) "were negligent in" several respects; and (3) "[t]hat as a direct and a proximate result of the Defendants’ negligence and the wrongful death of Decedent, [she] ... sustained severe and permanent damages, injuries, and losses."

The defendants filed answers, triggering deadlines for complying with section 147.140(1). The district court summarized the deadlines as follows:

Defendant	Date Answer Filed	60 (Sixty) Day Deadline	Timely Filing
Alegent Health Bergan Mercy d/b/a CHI Health Mercy Council Bluffs	05/13/19	07/12/19	no
Midwest Geriatric Management, L.L.C.	05/28/19	07/29/19	yes
Oakland Healthcare Management	05/28/19	07/29/19	yes
Jennie Edmundson Memorial Hospital	05/15/19	07/15/19	no
Accelecare Wound Professionals	05/20/19	07/19/19	yes
Physicians Clinic	05/15/19	07/15/19	no
Gregory Stanislav, M.D.	05/20/19	07/19/19	yes

On July 18, 2019, Schneider filed a motion to extend the time to serve a certificate of merit affidavit. All the defendants resisted the motion and moved to dismiss Schneider's petition.

The district court determined Schneider's "action commenced on the date of death, November 1, 2017, which is after July 1, 2017," the effective date of section 147.140. The court stated Schneider was "required to provide the certificate of merit within 60 (sixty) days of [d]efendants’ answers" or file a motion for extension of time "prior to" the sixty-day "deadline." Although Schneider's extension motion "was timely with four out of seven Defendants," the court concluded she did not "establish[ ] or demonstrate[ ] good cause" and, "absent a showing of good cause and timely filing," she did not "substantially compl[y] with the Code." The court dismissed the petition with prejudice.

Schneider moved for reconsideration, asserting in part that she pled "damages up to the date of death," which "constitute[d] a separate personal injury claim as distinct from the claim for wrongful death." The district court rebuffed the assertion, stating, "This case was clearly presented to the Court as a wrongful death action" and "any cause of action alleged from the standpoint of negligence not including wrongful death was absorbed into the wrongful death action that was filed in this case."

On appeal, Schneider asserts "the [d]efendant's negligent care began on or about December 30, 2016, when Mr. Schneider was admitted to Oakland Manor" and "[h]ad [he] survived, the malpractice claim would have accrued before July 1, 2017." Schneider's argument is unsupported by allegations in the petition. Schneider pled wrongful death; she did not plead a separate claim for personal injury against any of the defendants. While she alleged her spouse sustained certain damages before his death,² the district court correctly found that those "pre-death damages" were subsumed within the wrongful death action. See Iowa Code § 613.15 (authorizing spouse's...