IN THE COURT OF APPEALS OF IOWA
No. 20

- 1228 Filed November 3, 2021

JACQUELINE STRUCK , Plaintiff

- Appellant,

v s. MERCY HEALTH SERVICES, IOWA CORP. a / k / a MERCY MEDICAL CENTER, SIOUX CITY, RODNEY J. DEAN, M.D., ALBERT OKINE, P.A. , and EILEEN MIDDLETON, P.A., Defendants - Appellees, and JEREMY J. VANDE ZANDE, M.D. and ROBBIE L. ROBINSON, NP, Defendants.

____________________________________________________ ____________ Appeal from the Iowa District Court for Woodbury County, Zachary Hindman , Judge.

Jacqueline Struck appeals the dismissal of her personal injury action.
AFFIRMED IN PART , REVERSED IN PART , AND REMANDED

.

Thomp J. Patterman n of Law Office of Gallner & Pattermann, P.C., Council Bluffs, for appellant. Frederick T. Harris of Lamson Dugan & Murray, LLP, Omaha, Nebraska, for appellee Mercy Health Services

- Iowa Corp. Sioux City a/k/a Mercy Medical Center.2 John C. Gray of Heidman Law Firm, P.L.L.C., Sioux City, for appellees Rodney J. Dean, M.D., Albert Okine, P.A., and Eileen Middleton, P.A.

Heard by Bower, C .J. , Greer, J., and Danilson, S.J. * *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021 ).3

DANIL SON, Senior Judge

. Jacqueline Struck appeals the district court ’ s order granting the defendants ’ motions to dismiss her personal injury action for failure to file expert witness certificate of merit affidavit s pursuant to Iowa Code section 147.140 (20 20 )

. Struck challenges the court ’ s determination that expert testimony was necessary to establish a prima facie case for “ all [her] claims. ” Upon our review, we agree the petition is broad enough to encompass ordinary negligence claims against Mercy Medical Center (Mercy) not requiring a certificate of merit affidavit , and such claims should not have been dismissed. Thus, we aff irm in part , reverse in part , and remand

. I

. Background Facts and Proceedings In January 2018, Struck was a patient at Merc y when she “ fell ” and sustained injuries. Two years later, Struck initiated this action against Mercy and various medical professionals (physician Rodney Dean 1 ; physician assistants Albert Okine and Eileen Middleton; and nurse practitioner Robbie Robinson ) employed by Mercy, for damages arising from the fall , claiming she was improperly medicated and supervised. The defendants moved to dismiss Struck ’ s claims for failure to file a certificate of merit affidavit as required by Iowa Code section
147.140. S truck resisted and requested an extension of the deadline. Following a hearing, the district court entered an order dismissing Struck ’ s petition with prejudice. Struck appeals.

1 Struck also named physician Jeremy Vande Zande a s a defendant, but she later dismissed her claims against Dr. Vande Zande.4

II

. Standard of Review We review dismissals for correction of legal error. Benskin , Inc

. v

. W

. Bank , 952 N.W.2d 292, 298 (Iowa 2020). In doing so, we accept as true the factual allegations set forth in the petition but not its legal conclusions. See id

. A motion to dismiss is granted only when there are no conceivable state of facts under which the nonmoving party would be entitled to relief. Morma nn v

. Iowa Workforce Dev

. , 913 N.W.2d 554, 565 (Iowa 2018). W e also review questions of statutory interpretation for correction of legal error

. Doe v

. State , 943 N.W.2d 608, 609 (I owa 2020).
III

. Analysis Iowa Code section 147.140 requires a plaintiff who alleges “ 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, ” to file within sixty days of the defendant ’ s answer “ a certificate of merit affidavit signed by an expert witness with respect to the issue of standa rd of care and an alleged breach of the standard of care. ” Iowa Code § 147.140(1)(a). Failure to substantially comply with this requirement “ shall ” lead to “ dismissal with prejudice of each cause of action as to which expert witness testimony is

necessar y to establish a prima facie case. ” Id

. § 147.140(6). On appeal, Struck challenges the court ’ s finding t hat all her “ possible negligence claims ” “ relied upon professional negligence .” In other words, Struck5

contends the court ’ s ruling “ incorrectly presu pposes ” that all her claims required expert testimony to establish a prima facie case. Struck ’ s petition alleged: “ Defendant Mercy Medical Center was negligent in hiring and retaining Rodney Dean, MD, Albert Okine, PA, Robbie Robinson, NP
and Eileen Middleton, PA and non

- party staff who were individually and jointly responsible for her care and treatment ” ; “ The professional negligence of [the Defendants] was a violation of an acceptable standard of care ” ; and “ As a direct and proximal result of the ne gligence of the Defendants,

. . . the Plaintiff subsequently suffered and suffers from injuries and damages associated with the aforementioned acts of negligence. ” At hearing on the defendants ’ motions to dismiss, Struck ’ s counsel claimed a certificate of merit affidavit was not required

“ on those claims, the ones regarding negligence, ” arguing they “ would not be normally the opinion of an expert. ”
The district court determined t hat a certificate of merit affidavit was required with regard to both “ catego ries ” of claims raised in Struck ’ s petition, those with regard to all defendants (professional negligence) and those with regard to only Mercy (negligent hiring and retention). And because Struck failed to file a certificate of merit affidavit in support of her claims within sixty days after the6

defendants filed answers, 2 the court concluded all of her claims should be dismissed with prejudice. Our interpretation of section 147.140 (1) requires “ any action ” that “ includes a cause of action for which expert testimony is necessary to establish a prima facie

case ” is subj ect to the certificate

- of

- merit requirement. Struck concedes the court properly dismissed her professional negligence claims “ for failure to substantially comply with [section] 147.140. ” 3 At oral argument, Struck acknowledged her only remaining viable claim s are against Mercy, relating to ordinary negligence not requiring expert testimony. Indeed, o nly a cause of action subject to the certificate

- of

- merit requirement is subject to dismissal as provided in Iowa Code section 147.140 (6). The district court found, “ [R]egardless of how Struck has chosen to label her claims against Defendant Mercy

— as professional negligence through respondeat superior; as negligent hir ing, or as negligent retentio n
— a ll of her claims, given their factual bases, require application of the modified duty applicable to medical

2 On appeal, Struck abandons her claim that the sixty days under section 147.140 was not triggered because not all the defendants had been served and filed answers. 3 Upon our review, we conclude the district court correctly applied the law in concluding the requirements of section 147.140 applied to Struck’s claims of professional negligence and that Struck failed to substantially comply with those requirements. We af firm the court’s order granting the defendants’ motions to dismiss the claims of professional negligence of the health care providers. See Schmitt v

. Floyd Valley Healthcare , No. 20

- 0985 , 2021 WL 3077022, at *3 (Iowa Ct. App. July 21, 20201) ; McHugh v

. Sm ith , ___ N.W.2d ___, ___ , 2021 WL 1016596, at *6 (Iowa Ct. App. 2021); see also Schneider v

. Jennie Edmundson Mem’l Hosp

. , No. 19

- 1642, 2021 WL 1016599, at *2

– 3 (Iowa Ct. App. Mar. 17, 2021) (discerning no abuse of discretion in the district court’s refusa l to find good cause to grant the plaintiff’s motion for extension of time to file certificate of merit affidavit and affirming the dismissal of the plaintiff’s case).7

professionals. ” Cf

. Schmitt , 2021 WL 3077022, at *2 ( “ The district court determined that all but one of the Schmitts ’ claims require expert witn ess testimony on the question of standard of care. And although it found that one claim arguably fell under the category of ‘ nonmedical, administrative, ministerial, or routine care ’ and for which the jurors were capable of comprehending and drawing correct conclusions about the standard of care . . . , the court held causation still required expert testimony. Despite the Schmitts ’ claims that the breach of the standard of
care is so clear as to be obvious to a layperson, we find no error in the legal conclusion that expert witness testimony is necessary to establish a prima face case on each of the Schmitts ’ medical malpractice claims. ” ). T he district court determined a certificate of merit affidavit was required for Mercy because Struck sought to recover in an action ( 1) “ for personal injury ” ; (2) “ against a health care provider ” 4 ; (3) ” based upon . . . alleged negligence in the practice of that . . . occupation ” ; and (4) that “ incl udes a cause of action for which expert testimony is necessary to establish a prima facie case. ” Accord Iowa Code § 147.140(1)(a) ;

see Uniform Jury Instruction No. 703.5 (setting forth the elements of a claim of negligent hiring as requiring in part that “ [t] he (employee ’ s) [incompetence] [unfitness] [dangerous characteristics] was a cause of damage to the Plaintiff ” ); Godar v

. Edwards , 588 N.W.2d 701, 709 (Iowa 1999) (observing that a claim of negligent hiring “ l ikewise includes an action for negligent retention and negligent supervision ” ); see also P lowman v

. Fort Madison Cmty

. Hosp

. , 896 N.W.2d 393,

4 See Iowa Code § 147.136A(1)(a) (defining health care provider).8

402 (Iowa 2017) (noting that e xpert witness testimony is ordinarily required to establish the applicable standard of care and its breach ). A hospital ma y , however, face both claims of professional negligence and ordinary negligence. Iowa cases have noted th e distinction and applicable standard of care , as aptly summarized in Morton v

. Fort Madison Community Hospital as follows:
W hen a hospital is sued for negligence in respect to its “ professional activities ” the standard of care is “ the care which is exercised by hospitals generally. ” Kastler v. Iowa Methodist Hosp ., 193 N.W.2d 98, 101 (Iowa 1971) (citing Dickinson v. Mailliard , 175 N.W.2d 588, 596 (Iowa 1970)). To establish the standard of care for professional activities, expert testimony is required. Id . at 102. The standard of care is different, however, when a negligence claim is based on the hospital ’ s “ nonmedical, admin istrative, ministerial, or routine care. ” Id

. The applicable standard of care in these circumstances is “ such reasonable care as the patient ’ s known condition may require. ” Id

. at 101. Expert testimony is unnecessary in these situations. Id . at 102. No. 309CV00179HDVTJS, 2010 WL 11561523, at *2 (S.D. Iowa Sept. 22, 2010) (interpreting Iowa cases). Although subsequent to Kastler , our supreme court noted that although acts may “ on the surface appear to have been ministerial and thus subject to a standa rd of proof not requiring expert testimony ,” “special circumstances” may require expert testimony. Thompson v

. Embassy Rehab

. & Care Ctr

. , 604 N.W.2d 643, 646 (Iowa 2000)

. Here, Struck argues that because her petition alleges “ possible acts of general negligence , ” including premises liability and lack of supervision by non

professional staff of Mercy that would not require expert testimony, these claims9

should not have been dismissed. Accordingly , we must consider the contents of the petition and the a pplicable principles. In reviewing a petition, and in the absence of specific objection, it must be

“ liberally construed in order to effectuate justice and the pleader will be accorded the advantage of every reasonable intendment, even to implications ne cessarily inferred

. ” Wenndt v

. LaTare , 200 N.W.2d 862, 870 (Iowa 1968) ( citing Coleman v

. Hall , 161 N.W.2d 329, 332 (Iowa 1968 ) ). “ I f the prima facie elements of the claim are stated, and this statement is fair notice to a defendant, the petition is sufficient. ” Lamantia v

. Sojka , 298 N.W.2d 245, 247 (Iowa 1980). Iowa R ule of Civ il Procedure 1.403(1) requires the petition to include “ a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the type of relief sought. ” Moreover, our caselaw has long held that a petition is not required to identify a specific legal theory. S ee S oike v

. Evan Matthews and Co ., 302 N.W.2d 841, 842 (Iowa 1981) (concluding that requiring a plaintiff to identify a specific legal theory is inconsistent with the concept of notice pleading). Our supreme court has also stated in reference to the advent of notice pleading, “disposition of unmeritorious claims in advance of trial must now ordinarily be accomplished by other pretrial procedures which permit narrowing of the issues and piercing of the bare allegations contained in the petition.” Haupt v

. Miller , 514 N.W.2d 905, 909 (Iowa 1994) (quoting Am

. Nat ’ l Bank v

. Sivers , 387 N.W.2d 138, 140 (Iowa 1986)). Although many allegations in Struck’s petition are couched in terms of professional duties and the breach of those duties, the well

- pled facts reflect the incident that gives rise to her claim for relief. The petition first explains the injuries10

arose from a “slip and fall” incident. Secondly, it alleges that while hospitalized, “Struck was suffering from dizziness and lightheadedness upon standing and fell and struck her chin on the floor resulting in a laceration.” The petition further alleges that “[a]s a direct and proximate result of the negligence of the Defendants, Plaintiff Jacqueline Struck has sustained severe and permanent injuries.” The petition also alleges negligence by “non

- party staff.” W e conclude the petition’s allegations prov ide fair notice of a claim or claims against the hospital in addition to the professional negligence claims against the medical professionals and constitute a plain statement that Struck is entitled to relief. The question thus becomes whether Struck’s pe tition includes a claim or claims of ordinary negligence not requiring expert testimony

. We acknowledge a slip and fall in a hospital may be subject to a claim of either professional negligence or ordinary negligence. One court observed, “[t] he mere fact that a patient falls in a hospital will not normally determine whether expert testimony is called for in a given case. Some fall cases require expert testimony; others do not. ” Washington Hosp

. Ctr

. v

. Martin , 454 A.2d 306, 309 (D.C. 1982)

. And as we h ave noted, our supreme court has concluded that special circumstances may exist that require expert testimony even though the acts may

“ on the surface appear to have been ministerial .” Thompson , 604 N.W.2d at 646

. The distinctions between the two in a h ospital setting, and varied cour t decisions , were elaborated upon in a dissenting opinion in Ditch v

. Waynesboro Hosp ital , 17 A.3d 310, 311 (Pa. 2011) (Todd, J., dissenting) (observing a “ gray area of how to define the distinction between ordinary negligence and professional negligence in this context ” of whether a certificate of merit must be filed, and opining that “ a11

cause of action based in ordinary negligence ” would “ not require[] a certificate of
merit ” )

. A review of Iowa appellate decisions provides additional examples of fact scenarios, some requiring expert testimony , and others that did not require exp ert testimony , for example Kastler , 193 N.W.2d at 101

– 02 ( expert not required where patient who suffered from dizziness fell in the shower) , and Thompson , 604 N.W.2d at 646 (expert required where patient suffered from bedsore for failure to properly position patient at care facility). 5 Our legislature has adopted a method to quickly dismiss a claim of professional negligence or any claim requiring expert testimony to establish a prima facie case if a proper certificate of merit affidavit is not filed prior to the commencement of discovery and within sixty days of the defendant ’s answe r. See Iowa Code § 147. 140(1)(a), (6). The difficulty is we are not resolving a motion for summary judgment but rather a motion to dismiss before all the issues can be more clearly defined. 6 Moreover, w e decline to attempt to “ narrow the issues ” or

“ pie rce ” the allegations in the petition to prejudge whether Struck has a ny remaining negligence claim not requiring expert testimony to establish a prima facie case. To effectuate justice and give the pleader the advantage of all reasonable intendments, we c onclude the order dismissing all claims against

5 A complete review of our appellate decisions does not aid in the resolution of whether an expert is required here because Struck’s petition provides insuff i cient details regarding Struck’s fall to determine if an expert is required. 6 Accordingly, our ruling is limited to facts alleged in the petition ; a dditional facts will come to light in later proceedings.12

Mercy was in error and Struck’s claim or claims of negligence of premises liability and negligence of non

- professional staff against Mercy remain viable. If th e district c ourt determines after remand , and af ter the facts supporting the surviving claims are fleshed out, that a claim requires expert testimony, then the court should dismiss it as Struck did not challenge on appeal the district court’s conclusion that she failed to timely file a certificate of me rit. 7 Struck concedes, and

we affirm, the dismissal of all claims against all the remaining defendants. We also affirm the dismissal of any claims against Mercy relating to the negligent hiring, retention , or supervision of professional staff as such claims would require expert testimony. Accordingly, we affirm in part but reverse the dismissal of any claim or claims of ordinary negligence against Mercy. 8
AFFIRMED IN PART , REVERSED IN PART , AND REMANDED

.

7 There is a distinction between the use of e xpert testimony and whether expert testimony is essential to establish a prima facie case. See Davis v. Montgomery C n ty

. Mem’l H osp ., No. 05

- 0865 , 2006 WL 1896217 , at *3

– 4 (Iowa Ct. App. July 12, 2006) ( citing Landes v. Women’s Christian Ass’n , 504 N.W.2d 139, 142 (Iowa Ct. App. 1993) )

. 8 Struck’s counsel advised during oral arguments her claim includes premises liability a nd negligent hiring, retention , and superv ision of non

- professional staff.