Iowa Supreme Court Provides Certificate of Merit Clarification

Posted on: February 1st, 2023

In September 2020, Jahn and Sara Kirlin filed suit against two doctors and Methodist Physicians Clinic alleging negligence following medical treatment received by Jahn. The Kirlins timely filed a certificate of merit affidavit signed by Dr. David Segal, a board-certified neurosurgeon. Iowa Code section 147.140 requires plaintiffs in medical malpractice suits to serve a certificate of merit affidavit within sixty days of the defendant’s answer.

The Defendants challenged the certificate of merit as Dr. Segal was not board-certified in family medicine and one of the doctors sued by the Kirlins was a family physician. Iowa Code section 147.139(3) explains that “[i]f the defendant is board-certified in a specialty, the [affiant of the certificate of merit must be] certified in the same or a substantially similar specialty . . . .” Before the district court ruled on motions addressing this issue, the Kirlins voluntarily dismissed their petition without prejudice pursuant to Iowa Rule of Civil Procedure 1.943, which permits dismissals without prejudice at any time up until ten days before trial.

The Kirlins then refiled their petition on April 14, 2021, and served a new certificate of merit signed by a doctor that was board-certified in family medicine. Eventually the Defendants moved for summary judgment arguing the original certificate of merit was deficient, which the district court granted.

On appeal the Iowa Supreme Court was forced to determine whether plaintiffs who file a deficient certificate of merit, and then voluntarily dismiss their suit are restricted to their original certificate of merit. The Iowa Supreme Court determined the answer to that question is no and declined to adopt the Defendants’ position that plaintiffs in medical malpractice suits are limited to the certificate of merit they file first as this would defeat the “without prejudice” part of voluntary dismissals permitted by Iowa Rule of Civil Procedure 1.943. Once the Kirlins dismissed their first suit and refiled they could not have relied on the certificate of merit they had previously filed. Likewise, the Defendants could not rely on the original certificate of merit to defeat the Kirlins’ refiled petition. The Iowa Supreme Court reversed the district court’s order granting summary judgment to the Defendants and remanded the case.

Kirlin, et al. v. Monaster, et al., No. 22-0405 (Iowa Jan. 6, 2023).

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