IN THE SUPREME COURT OF IOWA

No. 20–1228

Submitted March 24, 2022—Filed April 22, 2022

JACQUELINE STRUCK,

Appellant,

vs.

MERCY HEALTH SERVICES-IOWA CORP. a/k/a MERCY MEDICAL CENTERSIOUX CITY, RODNEY J. DEAN, ALBERT OKINE, and EILEEN MIDDLETON,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Zachary 

Hindman, J., Judge.

Medical defendants seek further review of court of appeals decision 

reinstating negligence claims in action dismissed by district court for 

noncompliance with certificate of merit requirement in Iowa Code 

section 147.140. COURT OF APPEALS DECISION VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.

Waterman, J., delivered the opinion of the court, in which all justices 

joined.
2

Thomp J. Pattermann 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.

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. 
3

WATERMAN, Justice. 

This appeal presents our first opportunity to address the certificate of 

merit requirement in Iowa Code section 147.140 (2018) governing medical 

malpractice actions. The plaintiff was hospitalized to treat her prolonged 

dizziness. While medicated, she stood up and fell in her hospital room, suffering 

injuries. She sued the hospital, several physicians, and other healthcare 

providers involved in her treatment, alleging their “professional negligence.” The 

district court granted the defendants’ motion to dismiss on the grounds that she 

failed to file the certificate of merit required by section 147.140. She appealed, 

and we transferred the case to the court of appeals, which affirmed the dismissal 

of the claims alleging professional negligence and negligent hiring, retention, or 

supervision of professional staff but reversed in part, concluding her petition 

broadly encompassed claims for ordinary negligence for premises liability or 

nonprofessional routine care outside the scope of the statute. The plaintiff had 

not raised that issue in district court. We granted the defendants’ application for 

further review.

On our review, we hold that the district court correctly dismissed the 

petition under section 147.140. The plaintiff exclusively alleged professional 

negligence claims that fell within the scope of the statute. The factual allegations 

establish the plaintiff was admitted to the hospital for treatment of her dizziness

and allege the defendants mismanaged her care, supervision, and medication,

resulting in her fall. The statute was enacted to enable early dismissal of 

meritless malpractice actions that require expert testimony to proceed. A 
4

contrary holding would undermine that legislative goal. We decline to allow the 

plaintiff to evade the statutory requirement by claiming for the first time on 

appeal that her petition expressly alleging professional negligence also included 

ordinary negligence claims requiring no certificate of merit.

I. Background Facts and Proceedings.

We accept as true the well-pleaded facts alleged in the plaintiff’s petition. 

On January 18, 2018, Plaintiff Jaqueline Struck, age fifty-seven, was admitted 

to Mercy Medical Center (Mercy) in Sioux City to treat her prolonged dizziness, 

headaches, and unsteadiness when upright or standing. Her physicians 

adjusted her medication in the hospital but did not impose restraints or other 

safety measures to keep her from standing unattended. On January 25, Struck 

stood up, fell, and struck her chin on the floor, resulting in a laceration. Nearly 

two years later, on January 24, 2020, Struck brought this civil action against 

Mercy and several physicians, physician assistants, and a nurse practitioner

involved in her medical care. She alleged she had a “healthcare provider-patient 

relationship” with the named defendants and that her personal injuries resulted 

from their “professional negligence” when providing her “healthcare services,” 

including giving her “medications that were contraindicated with the medications 

she was already taking.”

Her petition then alleged: 

16. As a result of the physician-patient relationship between 

Dr. Rodney J. Dean, Albert Okine, PA, Jeremy Vande Zande, MD, 

Robbie Robinson, NP, Eileen Middleton, PA and Jacqueline Struck,

Dr. Rodney Dean, Albert Okine, PA, Jeremy Vande Zande., MD, 

Robbie Robinson, NP and Eileen Middleton, PA owed a duty to 

Jacqueline Struck to possess and use the care, skill and knowledge 
5

ordinarily possessed and used under circumstances by other 

members of their profession engaged in similar practice.

17. The Defendants breached their duty to Jacqueline Struck 

to possess and use, care, skill and knowledge ordinarily possessed 

and used under like circumstances by other members of their 

profession engaged in a similar practice, because they negligently:

A. Failed to properly supervise Jacqueline Struck 

considering the medications she was on and the 

risks they posed for dizziness;

B. Failed to take steps to ensure Plaintiff was safe from 

falls and injury; and

C. Were negligent in other ways not presently known to 

the Plaintiff.

Struck’s petition included a claim against the hospital for negligent hiring 

and retention of the individual defendants: 

19. Defendant Mercy Medical Center was negligent in hiring 

and retaining Rodney Dean, MD, Albert Okine, PA, Jeremy Vande 

Zande, MD, Robbie Robinson, NP and Eileen Middleton, PA and 

non-party staff who were individually and jointly responsible for her 

care and treatment.

20. The professional negligence of Defendants Mercy Medical 

Center, Rodney Dean, MD, Albert Okine, PA, Jeremy Vande 

Zande, MD, Robbie Robinson, NP and Eileen Middleton, PA was a 

violation of an acceptable standard of care. 

All the named defendants are healthcare providers licensed under Iowa 

Code chapter 147. Struck’s petition alleged no premises liability claim or that 

any unsafe condition in her hospital room caused her to fall.

The defendants filed answers followed by motions to dismiss pursuant to 

Iowa Code section 147.140(6). Struck resisted the motions by arguing that the 

time to file the certificate of merit had not yet started to run because not all of 
6

the defendants had been served and filed answers.1 Struck requested an 

extension to file the certificate of merit until sixty days after the final defendant 

was served and filed an answer. Struck filed no certificate of merit affidavit. 

Struck never sought leave to amend her petition to allege any premises liability 

or other ordinary negligence claim.

After a hearing, the district court granted the motions to dismiss and 

denied Struck’s request for an extension of the time to file a certificate of merit. 

The district court determined that section 147.140 applied to Struck’s claims of 

professional negligence against the defendants and the negligent hiring claim 

against Mercy. Struck timely appealed.

On appeal, Struck concedes that the district court properly dismissed the 

professional negligence claims pursuant to Iowa Code section 147.140.2 Struck 

abandoned her argument that the sixty-day deadline to file the certificate of merit 

was not triggered because all defendants had not been served and does not 

challenge the district court’s denial of her untimely motion for extension to file a 

certificate of merit. Rather, Struck asserted for the first time on appeal that her 

petition encompassed ordinary negligence claims of premises liability or 

nonprofessional negligence not subject to the certificate of merit requirement. 

 

1Defendant Robbie L. Robinson, NP, had not yet been served and had not filed an answer 

or otherwise appeared. Struck dismissed her claims against defendant Vande Zande with 

prejudice on August 20, 2020. 

2In her appellate brief, Struck argues “[t]he District Court should have dismissed the 

professional negligence claims, based on § 147.140, only and allowed the case to continue for the 

broad scope of discovery to flesh out the facts, formulate the issues and determine the various 

theories of liability.” (Emphasis added.) 
7

The court of appeals affirmed the dismissal of the claims against the

defendants for professional negligence and negligent hiring and retention of 

professional staff. But the court of appeals held the district court erred in 

dismissing all claims against Mercy pursuant to Iowa Code section 147.140. The 

court of appeals concluded Struck sufficiently pleaded ordinary negligence 

claims against Mercy that require no certificate of merit. Mercy sought further 

review, which we granted.

II. Standard of Review.

“We review a district court’s ruling on a motion to dismiss for the correction 

of errors at law.” Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 298 (Iowa 2020) 

(quoting Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014)). “For 

purposes of reviewing a ruling on a motion to dismiss, we accept as true the 

petition’s well-pleaded factual allegations, but not its legal conclusions.” Id.

(quoting Shumate, 846 N.W.2d at 507). “[W]e will affirm a dismissal only if the 

petition shows no right of recovery under any state of facts.” Id. (alteration in 

original) (quoting Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa 2001) (en banc)). 

“We construe the petition in ‘its most favorable light, resolving all doubts and 

ambiguities in [the plaintiff’s] favor.’ ” Id. at 298–99 (alteration in original) 

(quoting Schreiner v. Scoville, 410 N.W.2d 679, 680 (Iowa 1987)). Yet we recognize 

that plaintiffs may effectively plead themselves out of court. See id. at 299, 306; 

Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 575 (Iowa 2018).

We review rulings on statutory interpretation for correction of errors at 

law. Goche v. WMG, L.C., 970 N.W.2d 860, 863 (Iowa 2022).
8

III. Analysis. 

Our court has not yet interpreted or applied Iowa Code section 147.140,

enacted in 2017. See 2017 Iowa Acts ch. 107, § 4 (codified at Iowa Code 

§ 147.140 (2018)). This statute provides that the plaintiff in a medical 

malpractice action requiring expert testimony must file a certificate of merit 

signed by a qualified expert within sixty days of the defendant’s answer. See Iowa 

Code § 147.140(1).3 “Failure to substantially comply with [the certificate of merit 

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. § 147.140(6). 

It is well settled that expert testimony is required to prove professional 

negligence claims against healthcare providers. “To establish a prima facie case 

of medical malpractice, a plaintiff must produce evidence that (1) establishes the 

applicable standard of care, (2) demonstrates a violation of this standard, and 

(3) develops a causal relationship between the violation and the injury 

sustained.” Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990). “Ordinarily, 

evidence of the applicable standard of care—and its breach—must be furnished 

by an expert.” Id.;

4 see also Susie v. Fam. Health Care of Siouxland, P.L.C., 942 

 

3The sixty-day deadline can be extended by agreement of the parties or “for good cause 

shown and in response to a motion filed” within that deadline. Iowa Code § 147.140(4).

4The Oswald court noted two exceptions to the expert witness requirement:

One is where the physician’s lack of care is so obvious as to be within the 

comprehension of a lay[person] and requires only common knowledge and 

experience to understand. The other exception is really an example of the first 

situation. It arises when the physician injures a part of the body not being treated.
9

N.W.2d 333, 337 (Iowa 2020) (“Expert testimony is required to create a jury 

question on causation when the causal connection ‘is not within the knowledge 

and experience of an ordinary layperson.’ ” (quoting Doe v. Cent. Iowa Health 

Sys., 766 N.W.2d 787, 793 (Iowa 2009))). We conclude that the legislature 

enacted section 147.140 to provide a mechanism for early dismissal with 

prejudice of professional liability claims against healthcare providers when 

supporting expert testimony is lacking.

As the court of appeals recognized, Struck concedes that the district court 

correctly ruled that section 147.140 applies to her claims alleging the 

professional negligence of her healthcare providers. We hold the court of appeals 

correctly affirmed the district court’s dismissal of Struck’s claims alleging 

professional negligence and negligent hiring, retention, or supervision of 

professional staff. The fighting issue is whether that determination ends the 

entire case. We conclude that it does, and the court of appeals erred in 

construing Struck’s petition to encompass ordinary negligence claims that 

survive a motion to dismiss under section 147.140(6).

 

453 N.W.2d at 636 (quoting Buckroyd v. Bunten, 237 N.W.2d 808, 811–12 (Iowa 1976)). For 

example, expert testimony would not be required in a malpractice action alleging the surgeon 

removed the wrong kidney or inadvertently left a clamp inside the patient’s body. See, e.g.,

Donovan v. State, 445 N.W.2d 763, 766 (Iowa 1989) (“If a doctor operates on the wrong patient 

or amputates the wrong limb, a plaintiff would not have to introduce expert testimony to establish 

that the doctor was negligent.”); Whetstine v. Moravec, 291 N.W. 425, 436 (Iowa 1940) (“It has 

seldom been questioned, that where the act of omission or commission, upon the part of the 

surgeon, has been plainly negligent, as where a sponge, gauze, an instrument, or needle has 

been left in the body, the rule of res ipsa loquitur applies, and that it is also unnecessary to show 

by expert testimony that such an act does not comport with the required standards.”).
10

A. Error Preservation. For the first time on appeal, Struck argued her 

petition alleged “possible acts of general negligence,” including premises liability

and lack of supervision by nonprofessional staff of Mercy that would not require 

expert testimony and fall outside the scope of section 147.140. Struck did not 

raise that issue in district court and therefore waived it. “Nothing is more basic 

in the law of appeal and error than the axiom that a party cannot sing a song to 

us that was not first sung in trial court.” State v. Rutledge, 600 N.W.2d 324, 325 

(Iowa 1999). As Mercy correctly argued in its appellate brief: 

Plaintiff did not preserve arguments pertaining to negligent 

supervision, premises liability, and general negligence. Plaintiff did 

not raise these issues before the district court and the district court 

did not decide . . . these issues. As such, Plaintiff cannot raise these 

issues on appeal.

We agree. The court of appeals did not address error preservation and decided 

this unpreserved issue. But because the issue was fully briefed on appeal and 

decided by the court of appeals, we exercise our discretion to clarify the scope of 

the new statute.

B. Section 147.140 Required Dismissal of Struck’s Claims Against

Mercy. In our view, the district court correctly ruled that Iowa Code 

section 147.140 required dismissal of Struck’s professional negligence and

negligent hiring, retention, or supervision of professional staff claims against 

Mercy upon her failure to file a certificate of merit. We begin with the text of the 

statute. Iowa Code section 147.140(1)(a) provides: 

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 
11

a prima facie case, the plaintiff shall, prior to the commencement of 

discovery in the case and within sixty days of the defendant’s

answer, 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. The expert 

witness must meet the qualifying standards of section 147.139. 

Section 147.140(1)(a) establishes that a certificate of merit is required 

when a plaintiff pleads (1) an “action for personal injury or wrongful death,” (2) 

“against a health care provider,” (3) which is “based upon the alleged negligence 

in the practice of that profession or occupation or in patient care,” and (4) 

“includes a cause of action for which expert testimony is necessary to establish 

a prima facie case.” The first two requirements are clearly met. Struck brought 

this action for her personal injury, and Mercy is a healthcare provider. 

Section 147.140(7) provides that “[f]or purposes of this section, ‘health care 

provider’ means the same as defined in section 147.136A,” which in turn defines 

“health care provider” as including “a hospital as defined in section 135B.1.”5

Struck concedes the third and fourth requirements are met as to her 

“professional negligence” claims against Mercy.6 As noted, those claims require 

expert testimony. 

 

5Section 135B.1(3) defines “hospital” as

a place which is devoted primarily to the maintenance and operation of facilities 

for the diagnosis, treatment or care over a period exceeding twenty-four hours of 

two or more nonrelated individuals suffering from illness, injury, or deformity, or 

a place which is devoted primarily to the rendering over a period exceeding twentyfour hours of obstetrical or other medical or nursing care for two or more 

nonrelated individuals . . . .

6Section 147.140 does not use the term “professional negligence” but talks in terms of 

“alleged negligence in the practice of that profession or occupation or in patient care”—a broader 

concept. Iowa Code § 147.140(1). So any claim for negligence in patient care requires the 

certificate of merit, as long as expert testimony is required to prove up the claim. 
12

The court of appeals, however, viewed Struck’s petition as “broad enough 

to encompass ordinary negligence claims against Mercy” such as “premises 

liability and negligent hiring, retention, and supervision of non-professional 

staff,” which do not necessarily require expert testimony. But in our view, Struck 

pleaded no claim outside the scope of section 147.140. Struck is bound by the 

allegations actually pleaded within the four corners of her petition. By alleging 

only “professional negligence” claims and not filing a certificate of merit, she 

effectively pleaded herself out of court. See Benskin, 952 N.W.2d at 299, 306. If 

Struck really had ordinary negligence claims that don’t require expert testimony, 

she should have alleged them in her petition or moved for leave to amend to add 

them, neither of which she did.

A contrary holding would undermine the legislative goal to enable 

healthcare providers to quickly dismiss professional negligence claims that are 

not supported by the requisite expert testimony. Section 147.140(3) incorporates 

by reference, and works in tandem with, the expert disclosure requirements in 

Iowa Code section 668.11 (requiring disclosure of expert witnesses in 

professional liability cases “within one hundred eighty days of the defendant’s 

answer”).7 We have observed that “[s]ection 668.11 is designed to require a 

 

7Iowa Code section 668.11 provides in part:

1. A party in a professional liability case brought against a licensed 

professional pursuant to this chapter who intends to call an expert witness of 

their own selection, shall certify to the court and all other parties the expert’s 

name, qualifications and the purpose for calling the expert within the following 

time period:

a. The plaintiff within one hundred eighty days of the defendant’s answer 

unless the court for good cause not ex parte extends the time of disclosure.
13

plaintiff to have his or her proof prepared at an early stage in the litigation in 

order that the professional does not have to spend time, effort and expense in 

defending a frivolous action.” Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 

1993) (en banc). “Early disposition of potential nuisance[] cases, and those which 

must ultimately be dismissed for lack of expert testimony, would presumably 

have a positive impact on the cost and availability of medical services.” Id. 

(quoting Thomas v. Fellows, 456 N.W.2d 170, 173 (Iowa 1990)). 

Those goals are further served by section 147.140, which requires an 

expert’s certification sixty days from the defendant’s answer, even earlier than 

the one-hundred-eighty-day deadline in section 668.11. And while 

section 668.11 allows the exclusion of untimely expert testimony, 

section 147.140 provides an earlier and more complete remedy when the plaintiff 

lacks an expert: dismissal with prejudice. We agree with the court of appeals’ 

observation that “[s]ection 147.140 gives the defending health professional a 

chance to arrest a baseless action early in the process if a qualified expert does 

not certify that the defendant breached the standard of care.” McHugh v. Smith,

966 N.W.2d 285, 289–90 (Iowa Ct. App. 2021). 

 

b. The defendant within ninety days of plaintiff’s certification.

2. If a party fails to disclose an expert pursuant to subsection 1 or does 

not make the expert available for discovery, the expert shall be prohibited from 

testifying in the action unless leave for the expert’s testimony is given by the court 

for good cause shown.
14

At least twenty-eight other states have enacted certificate or affidavit of 

merit statutes. John D. North, Tort reform-Certificate of Merit, 9 Bus. & Com. 

Litig. Fed. Cts. § 103:31 (5th ed. 2021). While the specific requirements vary, 

[t]he common denominator is that all of the statutes, to one degree 

or another, require the plaintiff’s attorney to do what good practice 

and economics dictate: perform the due diligence necessary to 

determine the claim is meritorious before instituting litigation. 

Unless a case has merit and a deviation from standards of care can 

be proven through a competent expert, it is senseless to commence 

a medical malpractice action. 

Id. As the Pennsylvania Supreme Court recognized, the certificate of merit 

requirement serves to “identify and weed non-meritorious malpractice claims 

from the judicial system efficiently and promptly.” Womer v. Hilliker, 908 A.2d

269, 275 (Pa. 2006); see also Rabinovich v. Maimonides Med. Ctr., 179 A.D.3d 

88, 91 (N.Y. App. Div. 2019) (noting the purpose of New York’s certificate of merit 

statute “is to deter the commencement of frivolous actions by counsel on behalf 

of their clients, and to thereby reduce the cost of medical malpractice litigation 

and medical malpractice insurance premiums”). The Iowa legislature enacted a 

comparable certificate of merit statute presumably to further the same goals. 

The court of appeals determined that Struck’s “surviving” negligence 

claims should be “fleshed out” in further proceedings on remand to determine 

whether expert testimony is required. That approach violates the command of 

section 147.140(6), which mandates the dismissal of pleadings filed without the 

requisite certificate of merit. The statute is meant to end cases early (sixty days 

after the answer) when expert testimony is required. We decline to allow plaintiffs 

to evade the statutory requirement on appeal by relabeling a professional 
15

negligence claim as one of ordinary negligence. Struck failed to comply with the 

certificate of merit requirement in Iowa Code section 147.140, and the district 

court correctly granted the defendants’ motions to dismiss under 

section 147.140(6). Our liberal pleading rules do not require a different result.

The court of appeals relied on precedent allowing some slip-and-fall claims 

to proceed against a hospital without expert testimony when routine care is at 

issue. See, e.g., Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 102 (Iowa 1971). 

“The character of a particular activity of a hospital—whether professional, on the 

one hand, or nonmedical, administrative, ministerial, or routine care, on the 

other—is determined by the nature of the activity itself, not by its purpose.” Id. 

In Kastler v. Iowa Methodist Hospital, the plaintiff “from childhood . . . suffered 

from spells of headaches, rapid heartbeat, difficult breathing, and dizziness, 

followed by fainting.” Id. at 99. “The spells grew worse after she became an adult,”

and she would become depressed when she regained consciousness. Id. Her 

doctor eventually referred her to a psychiatrist, “who had her admitted to the 

psychiatric ward of defendant . . . [h]ospital.” Id. During her stay, the nurse aide 

sent the plaintiff into the shower room alone, where she lost consciousness and 

fell. Id. at 100. Plaintiff brought a negligence action against the hospital for her 

injuries. Id. The Kastler majority held the plaintiff was not required to introduce 

expert testimony on the standard of care because the activity at issue—“showers 

of patients—was routine care.” Id. at 102 (reasoning that “the jury could use its 

own knowledge and good sense with respect to the hospital’s conduct in 

question”). The plaintiff did not claim improper medication caused her to fall. 
16

Two justices dissented, concluding that without expert testimony, the jury was 

allowed “to speculate as to the hospital’s duty and any breach thereof” and 

questioned such a result, asking, “What knowledge does a layman have of the 

proper care of a psychiatric ward patient?” Id. at 105 (Moore, C.J., dissenting, 

joined by LeGrand, J.). Struck, however, expressly alleged professional 

negligence (including improper medication) caused her injury, not routine care.

More recently, we held that the plaintiff’s failure to designate an expert 

witness precluded liability against a skilled nursing facility that allegedly failed 

to reposition the plaintiff to avoid bedsores, rejecting the argument that no expert 

was required because the nursing care was routine or ministerial. Thompson v. 

Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646 (Iowa 2000). We gave the 

following test for determining whether expert testimony is required:

[I]f all the primary facts can be accurately and intelligibly described 

to the jury, and if they, as [persons] of common understanding, are 

as capable of comprehending the primary facts and of drawing 

correct conclusions from them as are witnesses possessed of special 

or peculiar training, experience, or observation in respect of the 

subject under investigation, [expert testimony is not required].

Id. (alterations in original) (quoting Schlader v. Interstate Power Co., 591 N.W.2d 

10, 14 (Iowa 1999)). Again, the problem for Struck is that she only pleaded 

“professional negligence” claims and breach of duties of professional care. See 

Bishop v. St. John Hosp., 364 N.W.2d 290, 292 (Mich. 1984) (per curiam) (holding 

plaintiff who sued for professional negligence arising from fall in hospital was 

not entitled to ordinary negligence instruction). 

This is not a case where the hospital patient slipped on a wet floor or 

tripped over a loose rug. Struck alleges no dangerous condition in her hospital 
17

room that could support a premises liability claim. She doesn’t allege a hospital 

employee dropped her or knocked her over. Rather, Struck alleges the 

defendants were professionally negligent by providing her with “contraindicated” 

medication and breached duties of professional care when they negligently 

“[f]ailed to properly supervise [her] considering the medications she was on and 

the risks they posed for dizziness.” Whether Struck was improperly medicated 

and supervised in light of her condition without measures to better monitor or 

restrain her is beyond the understanding of ordinary jurors. The district court 

correctly ruled that Struck’s claims required expert testimony. 

Persuasive authority in other jurisdictions holds that expert testimony is 

required to recover under allegations like those actually pleaded by Struck. See, 

e.g., Chamis v. Ashland Hosp. Corp., 532 S.W.3d 652, 656 (Ky. Ct. App. 2017) 

(requiring expert testimony when the patient fell from the hospital bed because 

“[d]etermining whether [the patient] was at a high risk of falling required an 

exercise in professional judgment”); Crosthwait v. S. Health Corp. of Hous., 94 

So. 3d 1070, 1076 (Miss. 2012) (en banc) (“[A]ny determination on whether 

Crosthwait could make this walk safely from the bathroom to her bed would 

require the exercise of professional knowledge and judgment in order to assess 

her medical condition and consequent physical limitations.”); Rabinovich, 179 

A.D.3d at 94 (“The issues of whether the plaintiff needed additional screening, 

monitoring, or supervision, and whether she was at risk of falling due to a 

medical condition, involve the exercise of medical judgments beyond the common 

knowledge of ordinary persons.”); Santana v. St. Vincent Cath. Med. Ctr. of N.Y., 
18

65 A.D.3d 1119, 1119–20 (N.Y. App. Div. 2009) (claims arising from patient’s fall 

from hospital bed sounded in medical malpractice, not ordinary negligence, for 

hospital’s “failure to assess the level of supervision, nursing care, and security 

required” after administering pain medication); MacTavish v. R.I. Hosp., 795 A.2d 

1119, 1120–21 (R.I. 2002) (per curiam) (holding that a patient who fell while 

walking unescorted from the hospital cafeteria between stress tests required 

expert testimony “to establish both the hospital’s duty of care and a breach of 

that duty by the nurse to sustain the plaintiff’s action” and “[t]hat duty of care, 

and any breach thereof, was not something that readily would have been obvious 

or discernible by an ordinary lay person without the assistance of expert opinion 

evidence”); McGraw v. St. Joseph’s Hosp., 488 S.E.2d 389, 398 (W. Va. 1997) 

(Maynard, J., dissenting) (“[E]xpert testimony was necessary here to demonstrate 

that there was a failure on the part of St. Joseph’s Hospital to properly observe 

and restrain the appellant in order to prevent him from falling out of bed. 

Certainly, the proper procedure for evaluating a patient’s susceptibility to falling 

in the absence of restraints and in light of the patient’s present medical 

condition, medical history, degree of medication, etc., is an issue of medical 

management to be established by expert testimony. This is not something that 

lay jurors would immediately understand, based on common knowledge and 

experience.”).

Finally, the district court correctly ruled that Iowa Code section 147.140 

applied to Struck’s negligent hiring and retention claims against Mercy. To 

recover under that theory, “an injured party must show the employee’s 
19

underlying tort or wrongful act caused a compensable injury, in addition to 

proving the negligent hiring, supervision, or retention by the employer was a 

cause of those injuries.” Kiesau v. Bantz, 686 N.W.2d 164, 172 (Iowa 2004) 

(citation omitted), overruled in part on other grounds by Alcala v. Marriott Intern., 

Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). “In other words, the injured party 

must prove a case within a case.” Id. Because Struck’s underlying professional 

negligence claims against the individual healthcare professionals were properly 

dismissed under section 147.140(6), she cannot prove her case within a case to 

establish Mercy’s liability for wrongfully hiring or retaining them.

Other courts have held pre-suit requirements and limitations including a 

certificate of merit apply to the patient’s negligent retention claims against the 

hospital. See, e.g., Palms W. Hosp. Ltd. P’ship v. Burns, 83 So. 3d 785, 788 (Fla. 

Dist. Ct. App. 2011) (per curiam) (holding that claims alleging hospital’s 

“negligent retention of doctors who failed to treat patients and the hospital’s 

continued staffing of these doctors are claims arising under the Medical 

Malpractice Act and implicate pre-suit requirements”); Ray v. Scottish Rite 

Child.’s Med. Ctr., Inc., 555 S.E.2d 166, 168–69 (Ga. Ct. App. 2001) (holding 

negligent retention claim against hospital was subject to time-bar for medical 

malpractice actions even though the “action for negligent retention raises 

different factual issues concerning the hospital’s conduct as opposed to [the 

doctor’s] conduct—their claim nevertheless calls into question [the doctor’s] 

professional skills, or lack thereof, and their damages are predicated upon proof 

that [the doctor’s] substandard medical care caused [plaintiff’s] injuries”); see 
20

also Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d 383, 417 n.22 (Pa. 

2021) (noting that vicarious liability claims against the corporate employer of the 

defendant physician “would necessarily fail if the [certificates of merit] were

defective as to its agent, Dr. Stelzer”). Struck cites no contrary authority. 

IV. Disposition.

For those reasons, we vacate the decision of the court of appeals. We affirm 

the district court judgment dismissing Struck’s entire petition with prejudice.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT 

JUDGMENT AFFIRMED.