Jahn Patric Kirlin and Sara Louise Kirlin v. Barclay A. Monaster, Christian William Jones, and Physicians Clinic, Inc., d/d/a Methodist Physicians Clinic- Council Bluffs ( 2023 )

IN THE SUPREME COURT OF IOWA
No. 22–0405
Submitted November 16, 2022—Filed January 6, 2023
JAHN PATRIC KIRLIN and SARA LOUISE KIRLIN,
Appellants,
vs.
BARCLAY A. MONASTER, CHRISTIAN WILLIAM JONES, and PHYSICIANS
CLINIC, INC. d/b/a METHODIST PHYSICIANS CLINIC–COUNCIL BLUFFS,
Appellees.
Appeal from the Iowa District Court for Pottawattamie County,
Michael Hooper, Judge.
Plaintiffs in a medical malpractice action appeal from the district court’s
grant of summary judgment for the defendants. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all participating
justices joined. Christensen, C.J., took no part in the consideration or decision
of the case.
Kelly N. Wyman (argued), Council Bluffs, and Dean T. Jennings, Council
Bluffs, for appellants.
Bryony J. Whitaker (argued), Frederick T. Harris, and Agnieszka M.
Gaertner (until withdrawal) of Lamson Dugan & Murray LLP, West Des Moines,
for appellee Barclay A. Monaster.
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Robert A. Mooney (argued) and Betsy Seeba-Walters of Mooney, Lenaghan,
Westberg Dorn, L.L.C., Omaha, Nebraska, for appellees Christian William Jones
and Physicians Clinic, Inc. d/b/a Methodist Physicians Clinic–Council Bluffs.
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OXLEY, Justice.
This case raises questions about the interplay between the plaintiffs’ right
to voluntarily dismiss their own petition under Iowa Rule of Civil Procedure 1.943
and the requirement for a plaintiff in a medical malpractice action to provide a
certificate of merit affidavit signed by a qualified expert witness within sixty days
of the defendant’s answer or face dismissal with prejudice under Iowa Code
section 147.140(6) (2021). The plaintiffs timely filed a certificate of merit affidavit
in their medical malpractice case but then voluntarily dismissed the case after
the defendants challenged the qualifications of the expert witness who signed
the affidavit. The plaintiffs then refiled their case and provided a certificate of
merit affidavit signed by a different expert witness. The defendants argued the
plaintiffs were bound by the purportedly deficient certificate of merit from the
first case, and the district court agreed, granting summary judgment to the
defendants in the second case.
We addressed related issues in another opinion filed today, Ronnfeldt v.
Shelby County Chris A. Myrtue Memorial Hospital, ___ N.W.2d ___ (Iowa 2023),
where we reaffirmed a plaintiff’s right to voluntarily dismiss her medical
malpractice case without prejudice under rule 1.943, even in the face of a
pending motion seeking dismissal with prejudice under section 147.140(6). The
question we must now answer is whether a plaintiff who files a noncompliant
certificate of merit and then voluntarily dismisses the case is stuck with the
certificate filed in the first case when bringing a second action. For the reasons
stated below and in Ronnfeldt, we answer that question in the negative.
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I. Factual and Procedural History.
In the spring of 2019, Jahn Kirlin sought medical treatment for persistent
pain in his head and neck. Dr. Christian Jones, of the Methodist Physicians
Clinic–Council Bluffs, recommended Jahn take medications to manage his pain
over the short-term and suggested an MRI could be necessary if his symptoms
did not improve. Jahn’s symptoms did not improve, and when he returned to
receive further treatment, he was placed in Dr. Barclay Monaster’s care.
Dr. Monaster did not order an MRI, however, recommending instead that Jahn
continue managing his pain as before. Jahn experienced a stroke soon after that
visit.
On September 11, 2020, Jahn and his wife Sara (the Kirlins) filed their
first petition against Dr. Jones, Dr. Monaster, and Methodist Physicians Clinic
(the Defendants)1 alleging negligence and seeking compensation for Jahn’s
injuries and Sara’s loss of consortium. The Kirlins timely filed a section 147.140
certificate of merit affidavit on October 2, signed by Dr. David Segal, a board-
certified neurosurgeon.2 The Defendants challenged the certificate on the basis
that Dr. Monaster is a family physician and Dr. Segal was not board-certified in
family medicine. See Iowa Code §§ 147.139(1) (requiring the affiant to be
“licensed to practice in the same or a substantially similar field as the
1That petition also contained claims against a chiropractor and his clinic, but those
defendants were omitted from the refiled case from which this appeal is taken.
2DefendantsDr. Jones and Methodist Physicians Clinic assert there is no evidence in the
record that the certificate of merit was served on them, as required by Iowa Code section
147.140(1)(a). The district court did not address the lack of service, which has no bearing on the
outcome of the appeal. We therefore do not address it further.
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defendant”), .139(3) (“If the defendant is board-certified in a specialty, the [affiant
must be] certified in the same or a substantially similar specialty . . . .”),
.140(1)(a) (requiring that the expert affiant “meet the qualifying standards of
section 147.139”). Before the district court could issue a ruling on those motions,
however, the Kirlins voluntarily dismissed their petition without prejudice under
Iowa Rule of Civil Procedure 1.943.
The Kirlins refiled their petition on April 14, 2021, and provided a new
certificate of merit signed by Dr. Brian Smith—board-certified in family
medicine—who opined that each defendant in the second case breached the
standard of care. The Defendants moved to dismiss the second case on the basis
that the certificate of merit signed by Dr. Segal from the first case was deficient.
The district court denied the Defendants’ motions to dismiss because, at the
pleadings stage, it could not consider facts outside the Kirlins’ petition, including
Dr. Segal’s certificate of merit from the first case. The Defendants then filed
answers and moved for summary judgment on the same bases as alleged in their
motions to dismiss, again relying on their challenge to Dr. Segal’s certificate of
merit. The Defendants did not challenge whether Dr. Smith’s certificate of merit
affidavits complied with section 147.140. Their claim was limited to whether the
certificate of merit affidavit the Kirlins filed in the first case entitled them to
dismissal of the second case.
Now having the ability to consider filings outside of the petition, the district
court granted the Defendants’ motions for summary judgment. The district court
first determined that it could consider the issue of statutory compliance from the
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first case by extending our holding in Darrah v. Des Moines General Hospital,
436 N.W.2d 53 (Iowa 1989), and characterizing the dismissal requirement in
section 147.140 as a sanction. The district court took “the same stance with
respect to enforcing sanctions after a voluntary dismissal [as Darrah] because
without the authority to impose sanction[s], the rule effectively loses the teeth
originally intended by the ‘harsh consequence’ of [section 147.140], the
legislative intent as outlined in McHugh v. Smith, 966 N.W.2d 285 (Iowa Ct. App.
Mar. 17, 2021).” After determining that the Kirlins’ first certificate of merit did
not substantially comply with section 147.140, the district court noted it would
have been required to “dismiss the Plaintiffs[’] claims with prejudice in the
previous case had there been the procedure to address the enforcement of the
sanction. Unfortunately, there is no procedure yet written that affords the courts
the ability to address an unsettled motion in order to determine the defendants’
rights without resorting to a successive case.” The district court then granted the
Defendants’ motions for summary judgment, dismissing the second case based
on the deficient certificate of merit filed in the first case.
The Kirlins appealed. We retained the appeal to clarify the interplay
between section 147.140 and rule 1.943.
II. Standard of Review.
We review summary judgment motions for correction of errors at law.
Lennette v. State, 975 N.W.2d 380, 388 (Iowa 2022). Summary judgment is
proper only if the record reflects “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.
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P. 1.981(3). Because this appeal turns on the district court’s application of
section 147.140, “summary judgment is the proper vehicle to test the validity of
[the] claim . . . [and] we need only decide whether the district court properly
applied the law.” Hill v. State, Dep’t of Hum. Servs., 493 N.W.2d 803, 804–05
(Iowa 1992) (citation omitted); see also Johnson v. Associated Milk Producers,
Inc., 886 N.W.2d 384, 389 (Iowa 2016) (“Summary judgment is proper if the only
issue is the legal consequences flowing from undisputed facts.” (quoting Peak v.
Adams, 799 N.W.2d 535, 542 (Iowa 2011))).
III. Analysis.
Today’s related case, Ronnfeldt, ___ N.W.2d ___, resolves this appeal.
There, we held that a plaintiff’s voluntary dismissal under rule 1.943 mooted the
defendants’ pending motion to dismiss premised on noncompliance with section
147.140’s certificate of merit requirements, and the plaintiff’s first dismissal was
without prejudice as provided by rule 1.943. Id. at ___. We concluded that rule
1.943 and section 147.140 are not irreconcilably conflicting for two reasons.
Id. at ___. First, the plain text of those provisions does not put them at odds—
rule 1.943 says nothing about certificates of merit, and section 147.140 says
nothing about voluntary dismissals. Id. at ___. Second, section 147.140 is not
self-executing and can only apply when there is a case over which it can govern,
which is lost once the plaintiff voluntarily dismisses her action under rule 1.943,
which is self-executing. Id. at ___. Once the case was voluntarily dismissed
without prejudice, the section 147.140 motion was mooted as there was nothing
left to rule on when the district court granted the defendants’ motion to
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reconsider their motion to dismiss. Id. at ___ (concluding that “the district court
lacked jurisdiction to posthumously resurrect and rule on” the defendants’
motion to dismiss after the case was voluntarily dismissed).
If a court in the same case cannot rule on the validity of a section 147.140
motion after a voluntary dismissal, it is hard to imagine how a later court could
do so in a second case. The district court here was astute in recognizing that
“there is no procedure yet written that affords the courts the ability to address
an unsettled motion” under section 147.140 after a voluntary dismissal. That is
because none was written into the statute. Unless, and until, the general
assembly expressly provides that rule 1.943 does not apply when a motion is
pending under section 147.140, we continue to apply our jurisprudence under
that rule.
In Ronnfeldt, we also rejected the district court’s reliance on Darrah, which
allowed continuing jurisdiction over collateral issues even after the district court
lost jurisdiction over the merits of a case. Id. at ___ (distinguishing Darrah). The
right to dismissal under section 147.140 when a plaintiff fails to provide a
compliant certificate of merit goes to the merits of the action, not a matter
collateral to the underlying action, so there is nothing over which the district
court could retain jurisdiction once the action is voluntarily dismissed. Id. at ___;
cf. Sorensen v. Shaklee Corp., 461 N.W.2d 324, 324–26 (Iowa 1990) (en banc)
(reversing the district court’s order granting summary judgment where plaintiffs
voluntarily dismissed their petition prior to the court’s ruling, explaining that
“the summary judgment motion . . . became moot with the dismissal of the suit”).
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In distinguishing Darrah, we recognized that rule 1.943 allows only one
voluntary dismissal without prejudice, so giving effect to a plaintiff’s absolute
right to dismiss her petition does not frustrate the legislative purpose behind
section 147.140. Ronnfeldt, ___ N.W.2d at ___. That same reasoning defeats the
Defendants’ reliance on Darrah here. Where a section 147.140 dismissal goes to
the merits of the Kirlins’ claims, and the Kirlins voluntarily dismissed the
underlying case, this case follows Sorensen, and the Defendants’ lack of redress
is of no moment.
The Defendants assert that a compliant certificate of merit affidavit is a
substantive right that nonetheless “attached” once they filed section 147.140
motions in the first case. But as with the argument we rejected in Ronnfeldt—
that section 147.140 vests defendants with a right to dismissal with prejudice as
soon as a motion is filed—we see nothing in that statute supporting this
argument. Ronnfeldt, ___ N.W.2d at ___. District courts still have substantive
considerations to make that could keep a plaintiff’s case alive, in whole or in
part; the outcome of a section 147.140(6) motion is not inexorable upon filing.
Id. at ___. Further, their argument ignores the effect of a rule 1.943 dismissal. “A
dismissal without prejudice leaves the parties as if no action had been instituted.
It ends the particular case but is not such an adjudication itself as to bar a new
action between the parties.” Venard v. Winter, 524 N.W.2d 163, 163, 167 (Iowa
1994) (quoting Windus v. Great Plains Gas, 116 N.W.2d 410, 415–16 (Iowa
1962)). The Defendants’ assertion that plaintiffs in a medical malpractice action
are limited to the certificate of merit they file in their first case would essentially
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gut the “without prejudice” part of a voluntary dismissal, see Iowa R. Civ. P.
1.943 (“A dismissal under this rule shall be without prejudice . . . .” (emphasis
added)), which allows plaintiffs—once—to refile their claims, see ACC Holdings,
LLC v. Rooney, 973 N.W.2d 851, 852 (Iowa 2022) (stating that “[rule] 1.943 allows
plaintiffs to dismiss their petitions without prejudice and start over—once,” as a
matter of right).
The Defendants do make one argument not addressed in Ronnfeldt,
pointing to language in Witt Mechanical Contractors, Inc. v. United Brotherhood of
Carpenters, Local 772, 237 N.W.2d 450 (Iowa 1976), where we said that the effect
of a voluntary “dismissal when defendant’s pleadings are solely defensive is final
and terminates the jurisdiction of the court thereof,” id. at 451. Seizing on the
“solely defensive” qualification, the Defendants argue that their motions in the
first case seeking to enforce section 147.140 transformed “the stance of the
pleadings from merely defending against Plaintiffs’ claims to asserting an
affirmative right to substantive relief.”
Aside from the obvious example of a counterclaim, however, the
Defendants cite no examples of an “offensive” pleading being used to retain a
court’s jurisdiction after a rule 1.943 dismissal, let alone a case where we have
even defined the phrase “solely defensive.” The closest this court has come to
defining that phrase appears to have been in a 1920s case upholding a plaintiff’s
voluntary dismissal and finding no offensive pleadings existed. Eclipse Lumber
Co. v. City of Waukon, 213 N.W. 804, 807–08 (Iowa 1927). Looking to a case from
1904 for guidance (which similarly found no offensive pleadings at issue), we
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narrowed the inquiry to “the contents of the pleading,” rather than its technical
label, and said that for a pleading to become offensive, it must in essence state
its own cause of action:
Thus it will not be sufficient if it appear that the averments of the
pleading are all defensive in character; that is, a statement of
matters of fact brought forward, designed and intended simply to
defeat, in whole or in part, a recovery by plaintiff. To entitle a
defendant to proceed, his pleadings must state an independent
cause of action, with an appropriate demand for relief. It is not
material that the cause stated involves, to a greater or less extent,
the subject-matter of the cause of action as stated by plaintiff in
his petition, but it must contain within itself the essential elements
of a cause of action. In legal effect, the defendant becomes plaintiff,
and the plaintiff becomes defendant.
Id. at 807 (emphases added) (quoting Stewart v. Gorham, 98 N.W. 512, 515 (Iowa
1904)).
The only thing the Defendants claim section 147.140 entitles them to is
dismissal of the Kirlins’ petition with prejudice—they do not set up an
independent cause of action or take on the role of plaintiff simply by filing a
motion to dismiss or for summary judgment. Nor could they, as section
147.140(6) is “designed and intended simply to defeat, in whole or in part, a
recovery by plaintiff[s]” when the statutory requirements are not met. Stewart,
98 N.W. at 515; see Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533,
542 (Iowa 2022) (“[T]he certificate of merit requirement serves to ‘identify and
weed non-meritorious malpractice claims from the judicial system . . . .’ ”
(quoting Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006))).
When the Kirlins voluntarily dismissed their first suit, it became
“nonexistent” and “unreviewable.” See Lawson v. Kurtzhals, 792 N.W.2d 251,
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255 n.2 (Iowa 2010). Section 147.140 ceased operating, as it lacked a case over
which to govern, and the Defendants’ motions seeking to enforce that statute
became moot. See Ronnfeldt, ___ N.W.2d at ___. When the Kirlins then refiled
their suit, section 147.140 applied anew, and the Kirlins could not have relied
on a certificate of merit from a previously filed and dismissed case to satisfy the
statute any more than the Defendants may now rely on such a certificate to
defeat the refiled petition. The district court erred as a matter of law when it
granted summary judgment based only on the certificate of merit affidavit signed
by Dr. Segal and provided in the dismissed case.
IV. Conclusion.
The district court’s order granting summary judgment is reversed, and the
case is remanded for further proceedings.
REVERSED AND REMANDED.
All justices concur except Christensen, C.J., who takes no part.