Teresa Marie Rarick and Richard Dee Rarick v. Wesley Smidt and Des Moines Orthopaedic Surgeons, P.C.

Summary

The Iowa Supreme Court affirmed dismissal of a medical malpractice action because the plaintiffs’ certificate of merit did not substantially comply with Iowa Code section 147.140. The certificate was neither a properly executed affidavit made before an authorized officer nor a signed statement containing the required phrase “under penalty of perjury,” and a later notarized affidavit was untimely. The court also rejected the plaintiffs’ waiver, relation-back, equal protection, and due process arguments.

Holdings

1. A defendant preserves its right to seek dismissal under Iowa Code section 147.140 when it files the motion by the district court's dispositive-motion deadline, even if the defendant delayed and engaged in discovery before moving to dismiss.
2. A plaintiff substantially complies with Iowa Code section 147.140's affidavit requirement only by timely serving either a true affidavit executed before a person authorized to administer oaths or a written statement satisfying Iowa Code section 622.1 by stating that the signer certifies the matter to be true under penalty of perjury.
3. Extrinsic evidence that the expert believed he was under oath, that the document was intended to support the lawsuit, or that the document was transmitted to an attorney who was a notary does not convert the document into a true affidavit or satisfy Iowa Code section 622.1.
4. A later, compliant certificate of merit affidavit served after the sixty-day period cannot cure an earlier defective certificate or relate back absent statutory or procedural authorization.
5. Section 147.140 does not violate the Iowa Constitution's equal protection or due process guarantees merely because it imposes special certificate-of-merit requirements on medical-malpractice plaintiffs and may result in dismissal of claims.

Questions Presented

1. Whether the defendants waived or forfeited their right to seek dismissal under Iowa Code section 147.140 by delaying their motion and engaging in discovery.
2. Whether the plaintiffs' timely 2023 certificate substantially complied with Iowa Code section 147.140 despite lacking a jurat and the phrase "under penalty of perjury."
3. Whether the plaintiffs' later notarized certificate could cure or relate back to the timely but defective certificate.
4. Whether dismissal under Iowa Code section 147.140 violated the Iowa Constitution's equal protection and due process guarantees or article III, section 30.

Disposition

affirmed