Amended August 23, 2016 Estate of Paul Dedrick Gray by Brenna Marie Gray, Administrator of the Estate, and Brenna Marie Gray, Individually and on Behalf of O.D.G., Minor Child of Paul Dedrick Gray and Brenna Marie Gray Vs. Daniel J. Baldi Daniel J. Baldi, D.O., P.C. United Anesthesia & Pain Control, P.C. Central Iowa Hospital Corporation Iowa Health Pain Management Clinic Iowa Health System ( 2016 )


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  •                   IN THE SUPREME COURT OF IOWA
    No. 14–1547
    Filed May 6, 2016
    Amended August 23, 2016
    ESTATE OF PAUL DEDRICK GRAY by BRENNA MARIE GRAY,
    Administrator of the Estate, and BRENNA MARIE GRAY, Individually
    and on Behalf of O.D.G., Minor Child of Paul Dedrick Gray and Brenna
    Marie Gray,
    Appellants,
    vs.
    DANIEL J. BALDI; DANIEL J. BALDI, D.O., P.C.; UNITED
    ANESTHESIA & PAIN CONTROL, P.C.; CENTRAL IOWA HOSPITAL
    CORPORATION; IOWA HEALTH PAIN MANAGEMENT CLINIC; IOWA
    HEALTH SYSTEM; UNITYPOINT HEALTH; BROADLAWNS MEDICAL
    CENTER FOUNDATION; and BROADLAWNS MEDICAL CENTER,
    Appellees.
    Appeal from the Iowa District Court for Polk County, Dennis J.
    Stovall, Judge.
    Plaintiffs appeal from a district court decision granting summary
    judgment to defendant medical providers, contending the district court
    erred in concluding the plaintiffs’ wrongful-death and loss-of-consortium
    claims are time-barred.   AFFIRMED IN PART, REVERSED IN PART,
    AND REMANDED.
    Bruce H. Stoltze of Stoltze & Updegraff, P.L.C., Des Moines, for
    appellants.
    2
    Eric G. Hoch, Connie L. Diekema, and Erik P. Bergeland of Finley,
    Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for
    appellees Daniel J. Baldi; Daniel J. Baldi, D.O., P.C.; United Anesthesia
    & Pain Control, P.C.; Broadlawns Medical Center Foundation; and
    Broadlawns Medical Center.
    Barry G. Vermeer, Loree A. Nelson, and Sarah K. Grotha of
    Gislason & Hunter LLP, Des Moines, for appellees Central Iowa Hospital
    Corporation, Iowa Health System, and UnityPoint Health.
    3
    HECHT, Justice.
    In this wrongful-death case, Paul Gray’s surviving spouse and
    daughter allege Dr. Daniel Baldi and several Iowa healthcare providers
    negligently treated Paul during his struggle with substance abuse. The
    district court concluded the plaintiffs brought suit after the applicable
    statutes of limitations expired and granted summary judgment in favor of
    the defendants. On appeal, we conclude the district court’s ruling was
    partially erroneous. We hold a child conceived but not yet born at the
    time of their parent’s death can bring a parental consortium claim after
    the child is born. However, we do not decide whether the discovery rule
    can extend the time to file wrongful-death claims under Iowa Code
    section 614.1(9)(a) (2009), because we conclude even if it can, the
    wrongful-death and spousal consortium claims were untimely under the
    circumstances presented here. Accordingly, we affirm the district court’s
    summary judgment ruling in part, reverse it in part, and remand for
    further proceedings.
    I. Background Facts and Proceedings.
    In December 2005, Paul Gray began receiving care from Dr. Baldi,
    an addiction medicine and pain management specialist. Dr. Baldi knew
    Paul struggled with substance abuse, and his treatment of Paul involved
    examinations, diagnoses, and prescriptions of various medications.
    Paul’s wife, Brenna Gray, often attended appointments with Paul and
    communicated with Dr. Baldi regarding his treatment.
    On May 24, 2010, Paul passed away. For purposes of this appeal,
    the parties agree Paul died from an overdose or lethal combination of
    medications.   However, the record does not reveal specifically which
    medication or medications caused or contributed to the death, nor does
    4
    it establish whether Dr. Baldi prescribed them. 1 Brenna was pregnant at
    the time of Paul’s death and gave birth to a daughter, O.D.G., several
    months later.       Brenna was subsequently appointed administrator of
    Paul’s estate.
    On February 14, 2014, Brenna filed a wrongful-death lawsuit
    against Dr. Baldi, United Anesthesia and Pain Control, Central Iowa
    Hospital Corporation, Iowa Health Pain Management Clinic, Iowa Health
    System, UnityPoint Health, Broadlawns Medical Center, and Broadlawns
    Medical Center Foundation (collectively Baldi). The petition alleged Baldi
    breached the standard of care in prescribing, managing, and dispensing
    medications for Paul, and negligently failed to supervise or monitor
    Paul’s progress.        The petition listed three plaintiffs asserting three
    different claims: Paul’s estate asserting wrongful death, Brenna asserting
    a loss of spousal consortium, and O.D.G. asserting a loss of parental
    consortium (collectively Gray).
    Baldi filed an answer and a simultaneous motion for summary
    judgment, contending each of Gray’s claims was time-barred.                           The
    wrongful-death and spousal consortium claims, Baldi asserted, were filed
    more than two years after May 24, 2010—the date “on which the
    claimant knew, or through the use of reasonable diligence should have
    known” of Paul’s death.             Iowa Code § 614.1(9)(a); see Schultze v.
    1The  record does not include a copy of Paul’s medical records, death certificate,
    or autopsy report. The record also does not include any information about the scene of
    Paul’s death. Because Paul was a member of the band Slipknot, his death received
    considerable media attention. Thus, additional information about his death may
    appear in news reports. However, such reports are outside the record and we therefore
    cannot consider them.       Graham v. Kuker, 
    246 N.W.2d 290
    , 292 (Iowa 1976)
    (disregarding “statements of purported fact . . . which are outside the record”); Barnes v.
    Century Sav. Bank, 
    149 Iowa 367
    , 381, 
    128 N.W. 541
    , 547 (1910) (declining to consider
    asserted facts “which may be true . . . , but which do not appear in the printed record”).
    5
    Landmark Hotel Corp., 
    463 N.W.2d 47
    , 49 (Iowa 1990) (“[M]alpractice
    actions for wrongful death must be brought within two years after the
    claimant knew of the death.”).     Furthermore, Baldi asserted O.D.G.’s
    parental consortium claim was untimely because it too was filed more
    than two years after Paul’s death and O.D.G. was ineligible for the tolling
    provision in Iowa Code section 614.1(9)(b). See Iowa Code § 614.1(9)(b)
    (providing actions arising out of medical care and “brought on behalf of a
    minor who was under the age of eight years when the act, omission, or
    occurrence alleged in the action occurred shall be commenced no later
    than the minor’s tenth birthday”).       Baldi contended O.D.G. was not a
    “minor” at the time of Paul’s death, and she was therefore ineligible for
    protection under the statute.
    In resisting Baldi’s motion for summary judgment, Gray asserted
    our decision in Rathje v. Mercy Hospital, 
    745 N.W.2d 443
    (Iowa 2008),
    significantly changed the analytical framework of the discovery rule
    under section 614.1(9).      In Rathje, we concluded “our legislature
    intended the medical malpractice statute of limitations to commence
    upon actual or imputed knowledge of both the injury and its cause in
    fact.” 
    Id. at 461
    (emphasis added). Gray supported the resistance to the
    motion with Brenna’s affidavit stating that to the best of her “knowledge,
    recollection, understanding[,] and belief,” she did not discover Baldi
    might have caused or contributed to Paul’s death until less than two
    years before the petition was filed. Gray contended summary judgment
    was therefore inappropriate because the claims for wrongful death and
    loss of spousal consortium were timely under the discovery rule
    explicated in Rathje.
    Baldi presented a twofold response. First, he asserted the holding
    in Rathje controls the discovery rule analysis in injury—but not death—
    6
    cases. This distinction is significant, Baldi contended, because this court
    previously noted differences between wrongful-death claims and claims
    for nonfatal injuries. See 
    Schultze, 463 N.W.2d at 50
    (“[T]he fact that a
    death has occurred provides the plaintiff with the starting point to
    determine whether a valid cause of action for wrongful death exists.”).
    Second, Baldi asserted, even if the discovery rule announced in Rathje is
    applied in this wrongful-death case, summary judgment should be
    granted because as a matter of law Gray knew or should have known of a
    causal connection between Paul’s death and Baldi’s care before
    February 14, 2012. Cf. Swartzendruber v. Schimmel, 
    613 N.W.2d 646
    ,
    651 (Iowa 2000) (applying the discovery rule in a workers’ compensation
    case but nonetheless finding the claim untimely as a matter of law).
    Specifically, Baldi (the collective defendants) contended Brenna’s sworn
    deposition and trial testimony during a criminal prosecution the state
    filed against Dr. Baldi (the individual) established two propositions
    justifying summary judgment: first, Brenna harbored concerns about
    Paul’s consumption of prescription medications and Baldi’s treatment
    even before the date of Paul’s death; and second, Brenna knew in
    January 2012 that Baldi’s treatment may have been connected with
    Paul’s death because she met at that time with a state investigator
    developing an administrative case against Dr. Baldi.
    The district court granted the motion for summary judgment in its
    entirety. Gray appealed the summary judgment ruling and we retained
    the appeal.
    II. Scope of Review.
    “We review a district court ruling granting a motion for summary
    judgment for correction of errors at law.”   
    Rathje, 745 N.W.2d at 447
    .
    “We . . . view the record in the light most favorable to the nonmoving
    7
    party and will grant that party all reasonable inferences that can be
    drawn from the record.”      Cawthorn v. Catholic Health Initiatives Iowa
    Corp., 
    806 N.W.2d 282
    , 286 (Iowa 2011).
    III. The Parties’ Positions.
    A. Gray. Gray acknowledges our decision in Schultze is a major
    obstacle for the wrongful-death and spousal consortium claims.           See
    
    Schultze, 463 N.W.2d at 49
    (concluding section 614.1(9) “communicates
    that malpractice actions for wrongful death must be brought within two
    years after the claimant knew of the death”). However, Gray points out
    our intervening decision in Rathje “departs from the direction we have
    taken in our prior cases” concerning nonfatal medical injuries and
    applies the discovery rule to toll the limitations period until the plaintiff
    knows or should know the physical harm and its factual cause. 
    Rathje, 745 N.W.2d at 463
    .       Therefore, according to Gray, our analysis in
    Schultze has been undermined and we should apply the Rathje rationale
    uniformly to both wrongful-death claims and nonfatal injuries. If we do
    not, Gray contends, the disparate treatment of wrongful-death and
    nonfatal injury claims violates equal protection.
    On the second issue, Gray asserts O.D.G.’s loss-of-consortium
    claim was timely filed because a fetus in utero is under the age of eight
    and the principle limiting the universe of persons protected under section
    614.1(9)(b) is simply that a fetus must have been conceived before their
    parent’s death and eventually be born. A contrary interpretation, Gray
    asserts, denies equal protection of law because it would permit a child
    who was just seconds old at the time of their parent’s death to sue, yet
    prevent the same suit from a child who was born a second after their
    parent passed away.
    8
    B. Baldi. Baldi urges us to follow Schultze and maintain a strict
    two-year limitations period that commences without exception on the
    date of death for wrongful-death claims arising out of patient care. In
    Baldi’s view, Rathje limits the benefit of the discovery rule to cases
    asserting nonfatal injuries and is therefore of no aid to Gray in this
    wrongful-death case. 2
    Baldi    further    contends the         district   court   correctly    granted
    summary judgment in the defendants’ favor on O.D.G.’s claim because
    the time for filing children’s consortium claims is extended under section
    614.1(9)(b) only for children who are born before the wrongful death of,
    or the nonfatal injury sustained by, their parent. Because O.D.G. was in
    utero when Paul died, Baldi insists she was not a “minor” protected by
    the statute and her claim is time-barred. But in any event, Baldi asserts,
    O.D.G.’s claim fails because until O.D.G. was born, she had no
    cognizable consortium interest with Paul to lose. See Doe v. Cherwitz,
    
    518 N.W.2d 362
    , 365 (Iowa 1994) (concluding children neither born nor
    conceived at the time their parent was allegedly injured have no
    cognizable parental consortium claim).
    IV. Analysis.
    The district court granted summary judgment in Baldi’s favor on
    each of Gray’s claims. The respective claims involve different limitations
    2Baldi also emphasizes that in Lightfoot v. Catholic Health Initiatives, we denied
    further review after the court of appeals addressed a similar statute-of-limitations
    question in a wrongful-death case and considered Schultze controlling even after Rathje.
    See Lightfoot v. Catholic Health Initiatives, No. 12–0319, 
    2013 WL 1452932
    , at *2 (Iowa
    Ct. App. Apr. 10, 2013). Emphasis on the denial of further review in Lightfoot is
    misplaced. Denials of further review are analogous to Supreme Court denials of
    certiorari, and it is well beyond dispute that “denial of a writ of certiorari imports no
    expression of opinion upon the merits of the case, as the bar has been told many
    times.” United States v. Carver, 
    260 U.S. 482
    , 490, 
    43 S. Ct. 181
    , 182, 
    67 L. Ed. 361
    ,
    364 (1923).
    9
    periods. The timeliness of the wrongful-death and spousal consortium
    claims turns on section 614.1(9)(a), which governs actions “founded on
    injuries to the person or wrongful death . . . arising out of patient care.”
    Iowa Code § 614.1(9)(a).    The statute provides that a person asserting
    this type of claim must file it “within two years after the date on which
    the claimant knew, or through the use of reasonable diligence should
    have known, or received notice in writing of the existence of, the injury or
    death.” 
    Id. By contrast,
    an action otherwise brought under section 614.1(9)(a),
    but that is “brought on behalf of a minor who was under the age of eight
    years when the act, omission, or occurrence alleged in the action
    occurred” must be filed “no later than the minor’s tenth birthday or as
    provided in paragraph ‘a’, whichever is later.”    
    Id. § 614.1(9)(b).
      This
    statute governs O.D.G.’s parental consortium claim.         See Christy v.
    Miulli, 
    692 N.W.2d 694
    , 704–05 (Iowa 2005).
    A. Section 614.1(9)(b) and Unborn Children. We first address
    O.D.G.’s parental consortium claim. Baldi asserts the plain language of
    section 614.1(9)(b) forecloses O.D.G.’s claim because O.D.G. is not “a
    minor who was under the age of eight years when the act, omission, or
    occurrence alleged in the action occurred.”       Iowa Code § 614.1(9)(b).
    Baldi insists a fetus is not a “minor” for purposes of the statute because
    the word “minor” includes only living persons and an unborn child is not
    yet living. This question “whether a . . . fetus on the date of the accident
    is a child for purposes of asserting a parental consortium claim” has
    been presented to our court before. Roquet v. Jervis B. Webb Co., 
    436 N.W.2d 46
    , 47 (Iowa 1989). However, we did not answer the question in
    Roquet because we resolved that case on another ground. See 
    id. at 49.
                                         10
    Addressing the merits of the question today, we conclude the
    statutory language is not as plain as Baldi asserts.         In fact, “[t]he
    semantic argument whether an unborn child is a ‘person in being’ [is]
    beside the point.”   Smith v. Brennan, 
    157 A.2d 497
    , 503 (N.J. 1960).
    Section 614.1(9)(b) addresses “[a]n action subject to paragraph ‘a’ ”—that
    is, an action arising out of patient care—“and brought on behalf of a
    minor.”   Iowa Code § 614.1(9)(b).   The phrase “brought on behalf of a
    minor” modifies “an action” and clearly addresses the child’s age at the
    time the case is commenced. See 
    id. In other
    words, the statute’s initial
    focus is in the present tense on the filing of the action, not on whether
    the minor child on whose behalf the claim is brought was alive at some
    prior time. Gray filed the petition when O.D.G. was less than four years
    old. Thus, the action was clearly “brought on behalf of a minor.” See 
    id. Section 614.1(9)(b)
    also includes a past-tense component, as it
    pivots to consider whether the minor was under the age of eight at the
    time of the occurrence for which the action is brought            
    Id. Our precedents
    have never addressed the precise factual scenario presented
    here, where a child’s parent died after the child was conceived and still in
    utero, but the child born later manifested no physical injury arising from
    the tortfeasor’s acts or omissions.       Instead, our cases have only
    addressed factual scenarios in which tortfeasors caused physical harm to
    fetuses in utero. See Dunn v. Rose Way, Inc., 
    333 N.W.2d 830
    , 833 (Iowa
    1983) (recognizing a parent’s claim for loss of consortium with an unborn
    child because the category of minor children “certainly includes unborn
    persons”); McKillip v. Zimmerman, 
    191 N.W.2d 706
    , 709 (Iowa 1971)
    (concluding a stillborn fetus has no cause of action for wrongful death
    because “ ‘person’ as used in [the survival statute] means only those
    born alive”). We conclude the distinction between Dunn and McKillip is a
    11
    sound one. There is a difference between asking whether a fetus can “be
    the subject of a wrongful death action” and asking whether “a fetus at the
    time of the wrongful death of its father but a born, living minor child at
    the time the action is brought” comes within the provisions of a
    protective statute. Ellis v. Humana of Fla., Inc., 
    569 So. 2d 827
    , 828 (Fla.
    Dist. Ct. App. 1990).
    The nature of the consortium claim asserted in this case on behalf
    of O.D.G. addresses that distinction and renders irrelevant Baldi’s
    contention that “under the age of eight” does not include “negative age.”
    See Iowa Code § 614.1(9)(b).     For unborn children, the deprivation of
    consortium does not occur immediately upon the parent’s death.
    Crumpton v. Gates, 
    947 F.2d 1418
    , 1422 (9th Cir. 1991). Instead, the
    deprivation occurs when the child is later born. See Lopez v. Md. State
    Highway Admin., 
    610 A.2d 778
    , 780 (Md. 1992) (“It was only after he was
    born that Lopez suffered injury from the loss of his father’s pecuniary
    support, and the paternal affection and guidance attending the [parental]
    relationship.”); see also 
    Crumpton, 947 F.2d at 1422
    (holding although a
    parent died when their child “was in utero, the injury or suffering which
    flowed from [the death] occurred postnatally”).           Thus, the consortium
    injury—the loss of Paul’s support, companionship, aid, affection,
    comfort, and guidance, see Gail v. Clark, 
    410 N.W.2d 662
    , 668 (Iowa
    1987)—for which suit was brought in this case on O.D.G.’s behalf arose
    upon O.D.G.’s birth, not before.       Accordingly, we conclude it does not
    matter whether a fetus is “under the age of eight” within the meaning of
    section   614.1(9)(b);   a   newborn    assuredly   is.      O.D.G.’s   parental
    consortium claim is timely under section 614.1(9)(b).
    We acknowledge that in Doe, we held children who were neither
    born nor conceived at the time their parent suffered a compensable
    12
    personal injury have no cognizable claim for loss of consortium due to
    the parent’s injury.   See 
    Doe, 518 N.W.2d at 365
    .      However, because
    O.D.G. was already in utero when Paul passed away, no part of today’s
    holding is inconsistent with Doe. See Angelini v. OMD Corp., 
    575 N.E.2d 41
    , 45–46 (Mass. 1991) (“[I]f an individual conceives a child, and the
    child is born after the individual’s wrongful death, the child will be
    allowed to recover . . . .”); Le Fevre v. Schrieber, 
    482 N.W.2d 904
    , 907
    (Wis. 1992) (concluding a posthumous child can bring a wrongful-death
    claim for the death of his parent if conceived before the death).      The
    distinction between Doe and this case is important because, as we
    established in Dunn, parents enjoy a protected consortium interest in
    their relationship with their conceived-but-not-yet-born children. 
    Dunn, 333 N.W.2d at 833
    .       Our holding today simply recognizes that the
    protected relationship recognized in Dunn is reciprocal insofar as it
    recognizes a child’s claim arising at birth for the loss of consortium with
    a parent whose wrongful death occurred after the child was conceived
    but before the child’s birth. Whatever deprivation of consortium O.D.G.
    is currently experiencing is no less real just because she did not
    experience it while in utero.   See Weitl v. Moes, 
    311 N.W.2d 259
    , 269
    (Iowa 1981) (“[I]n any disruption of the parent-child relationship, it is
    probably the child who suffers most.”), overruled on other grounds by
    Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 
    335 N.W.2d 148
    , 152
    (Iowa 1983); cf. 
    Dunn, 333 N.W.2d at 833
    (“[P]arents’ loss certainly does
    not vanish because the deprivation occurred prior to birth.        To the
    deprived parent the loss is real either way.”).
    We emphasize that in deciding whether O.D.G. has a cognizable
    claim and whether it was filed within the applicable limitations period,
    “we can and do set completely aside all the philosophical arguments
    13
    about the status of the unborn. Those arguments are not at issue here.”
    
    Dunn, 333 N.W.2d at 833
    ; see also 
    McKillip, 191 N.W.2d at 709
    (“We
    express no opinion as to the existence of the fetus as a person in either
    the philosophical or actual sense.”).               Any reader who scours this
    opinion’s interstices for implied sentiments about any context beyond the
    narrow parental consortium question presented undertakes a fool’s
    errand.
    O.D.G. qualifies for protection under section 614.1(9)(b) because
    she was a minor under the age of eight at the time the action was filed
    and because her alleged loss of consortium—the injury or occurrence for
    which she is seeking to recover—arose when she was born. Iowa Code
    § 614.1(9)(b).     The district court therefore erred in granting summary
    judgment on O.D.G.’s parental consortium claim.
    B. Wrongful Death and the Discovery Rule. We now turn to the
    wrongful-death and spousal consortium claims.                       In Schultze, we
    concluded the limitations period for wrongful-death actions arising out of
    patient care “commences on the date the death is discovered.” 
    Schultze, 463 N.W.2d at 48
    . Since Schultze, we have not had occasion to consider
    any wrongful-death cases involving the discovery rule and what is now
    section    614.1(9)(a). 3      Thus,    in    cases    apart    from    Schultze,    our
    consideration of the discovery rule in medical negligence cases has
    occurred exclusively with respect to nonfatal injuries. Most recently, in
    3Although  we have considered other wrongful-death cases arising out of patient
    care since Schultze, those cases did not involve the discovery rule. See Estate of
    Anderson v. Iowa Dermatology Clinic, P.C., 
    819 N.W.2d 408
    , 419 (Iowa 2012)
    (concluding a plaintiff filed an action beyond the statute of repose); 
    Christy, 692 N.W.2d at 703
    –04 (concluding the doctrine of fraudulent concealment estopped a defendant
    from asserting a statute-of-limitations defense, but noting the discovery rule is a
    separate question from fraudulent concealment).
    14
    Rathje, we concluded the limitations period under section 614.1(9)(a)
    commences “upon actual or imputed knowledge of both the injury and its
    cause in fact.” 
    Rathje, 745 N.W.2d at 461
    .
    Our research reveals some disagreement among courts considering
    whether statutory language measuring the limitations period from death
    permits application of the discovery rule. Compare, e.g., Collins v. Sotka,
    
    692 N.E.2d 581
    , 585 (Ohio 1998), and Bradshaw v. Soulsby, 
    558 S.E.2d 681
    , 688–89 (W. Va. 2001), with, e.g., Moon v. Rhode, 
    34 N.E.3d 1052
    ,
    1056 (Ill. App. Ct. 2015), and Corkill v. Knowles, 
    955 P.2d 438
    , 443 (Wyo.
    1998). However, we do not join either side of that debate today. We need
    not decide whether the Rathje rationale is also compelling in death cases
    because we conclude even if the discovery rule applies, Brenna knew or
    should have known of a possible causal connection between Baldi’s
    medical care and Paul’s death more than two years before she filed the
    petition in this case.     See LaFage v. Jani, 
    766 A.2d 1066
    , 1070 (N.J.
    2001) (“Because we agree . . . that even if she could invoke the discovery
    rule Mrs. LaFage’s wrongful death claim was untimely, we decline to
    address the broader question whether the discovery rule generally should
    be applicable . . . .”).
    1. Brenna’s prior testimony. In the criminal case against Dr. Baldi,
    Brenna testified that before Paul’s death, she expressed concern to
    Dr. Baldi about his treatment of Paul, shared with Dr. Baldi her desire
    for Paul to stop taking one medication Dr. Baldi had prescribed, and
    became frustrated because she perceived that Dr. Baldi either ignored
    her complaints or did not take them seriously:
    Q: Did you inquire about whether Paul should go to
    substance abuse treatment? A: I did.
    Q: And what was Dr. Baldi’s response to that?
    A: Again, it just—it—to me, it seemed like it was a question
    15
    with a question. I never got an answer. I was asking the
    same questions for years and—well, for a period of time with
    no outcome.
    Q: And during the course of the time that you were in
    Iowa, did Paul ever go to substance abuse treatment? A: He
    did not.
    Q: At some point did you have a conversation with [Dr.
    Baldi] about how to record or document the concerns that
    you were having? A: I did. There was this one time Paul was
    just not in his right mind, not very coherent, and I dragged
    him in the office and I said, Okay, here you go. What do I
    do? . . . Dr. Baldi said, Just document it, take photos, write
    things down. So I started snapping pictures of him when he
    would be passed out or I would find pill bottles that he had
    just gotten that were empty that had disappeared, you know,
    and I would give them to him.
    ....
    Q: Were [the photos] taken—why were they taken? A: I
    was explaining that there were problems going on with this
    medication, and it was disappearing, and he was passing out
    in random places. . . . So when I was told to document, I
    figured, Well, okay, here it is. And I took them. Knowing
    that that is not how a medication bottle should be. And
    there shouldn’t be white substances crushed into it. So I
    took them, hoping, Hey, we can get him off this. This is a
    problem. He can’t—he doesn’t do well with it.
    ....
    Q: When you said you were in the office three days to a
    week before his death, who was “we?” A: Myself and Paul.
    Q: And did you see [Dr. Baldi] on that occasion? A: I
    did.
    Q: And what did you talk to [Dr. Baldi] about? A: The
    first time I had saw a needle in my house was the week
    before Paul had passed. The first time I had seen one in
    years. When I had moved in, I had thrown away needles. So
    that was the prior time I had seen them in our house. I had
    told him, you know, I think he’s using needles. The doctor.
    I had told the doctor. He checked Paul’s hands, where he
    frequently had used intravenous drugs and had track
    marks. So his hands were scarred up. And he checked his
    arms, and he had not checked his feet.
    Q: Did you suggest that to the doctor, that he should
    check his feet? A: I did. I also was told that he passed his
    16
    drug test, which he was—he had to, mandatory, take a drug
    test every time he went to a doctor’s appointment. I was told
    that it was negative. And I didn’t find out it was positive
    until after Paul had passed away. . . .
    ....
    Q: Did you share [a] desire with [Dr. Baldi]? The
    desire for Paul to be off . . . Xanax so you could get
    pregnant? A: Yes. Multiple times.
    ....
    Q: Now, this intervention that you described, that was
    not successful for Paul, was it? A: No. Nobody else believed
    me, as far—even the doctor.
    Q: Ma’am, you never told Dr. Baldi about the
    intervention. A: Throughout the—because—it happened on
    Saturday. But I was going to the appointments, and I was
    documenting, and I was letting him know, He can’t be on
    this. This is worrisome, throughout the years. So, therefore,
    Saturday had come, and I had found these needles. What
    difference did it make? I wasn’t getting help from him. So
    what difference does it make? I don’t understand about—if
    he knew about the intervention or not. He was dead 24
    hours later.
    Brenna also gave a March 2014 deposition in the criminal case
    against Dr. Baldi.   In that sworn testimony, she stated that in late
    January 2012, she had a few conversations about Dr. Baldi’s treatment
    of Paul with a state investigator from the Iowa Department of Inspections
    and Appeals:
    Q: What about investigators, have you talked to any
    . . . investigators? A: An investigator came to me. His name
    was Troy Wolff, DIA, I believe.
    Q: When did you and Mr. Wolff first have contact?
    A: Oh, boy. He showed up at my house. I was still residing
    in Johnston in Paul and I’s home, two years ago, a year and
    a half ago maybe. I really couldn’t—two years ago, I would
    say, a little over two years.
    Q: And you said he showed up. He didn’t call before
    he—? A: I pulled in my house, and there was a car there,
    and that’s how he showed up.
    17
    Q: And what did he say to you when he was sitting
    there at your house? A: He wanted some—just if I had any
    information about my husband’s treatment with his pain
    doctor and just some information about my husband and
    life, you know, just general things.
    ....
    Q: And when Investigator Wolff showed up at your
    house in Johnston, do you have a date for that or
    approximate date? A: It was winter. I—I don’t.
    ....
    Q: If I said January 30th of 2012, would that seem
    about right? A: Yes. It was winter. I just—yeah.
    Q: How many visits had you had with Troy Wolff in
    person? A: Three or four maybe.
    Q: And where did those visits take place? A: My home
    in Johnston at the time and his office downtown.
    Q: And to the best of your memory those visits, three
    or four of those? A: I think so, yes.
    Q: And you had contact with him by e-mail as well
    as— A: And phone.
    Q: —phone. And what did Mr. Wolff tell [you] this
    criminal case was all about? A: Doctor Baldi, and he was
    there to speak to me about my husband’s care with Doctor
    Baldi.
    Baldi presented these transcript excerpts to the district court in support
    of the motion for summary judgment in this case.
    In LaFage, the plaintiff consulted an attorney and a medical expert
    less than a month after the decedent’s death in March 1995—and in fact,
    the medical expert opined “he believed . . . [the plaintiff] had an
    overwhelming case of malpractice against all of the health care
    providers.” 
    LaFage, 766 A.2d at 1068
    . However, the plaintiff did not file
    a lawsuit until April 1997.      
    Id. The New
    Jersey Supreme Court
    concluded even if the discovery rule applied, the plaintiff’s claim was
    time-barred because she filed it more than two years after “she knew she
    18
    had a basis for a wrongful death—medical malpractice claim.” 
    LaFage, 766 A.2d at 1070
    .
    Similarly, in a West Virginia case, the plaintiff “believed that the
    [h]ospital was negligent in its treatment” even before the decedent’s
    death. Mack-Evans v. Hilltop Healthcare Ctr., Inc., 
    700 S.E.2d 317
    , 323
    (W. Va. 2010).    The plaintiff’s deposition testimony further established
    her knowledge at the time the decedent died “that conduct by the
    [h]ospital may have caused [the] death.”      
    Id. at 324.
       The deposition
    testimony was an important factor in the court’s conclusion that the
    discovery rule did not extend the time to file more than two years past
    the date of death and that “the trial court was correct in granting
    summary judgment to the [h]ospital.” 
    Id. Here, Brenna’s
    testimony in the criminal case against Dr. Baldi
    establishes she had been frustrated and dissatisfied with Baldi’s medical
    care   even   before   Paul’s   death.    Although   her    frustration   and
    dissatisfaction with Dr. Baldi’s medical care provided before Paul’s death
    do not conclusively establish Brenna’s knowledge of a causal connection
    between the medical care and Paul’s subsequent death, after Brenna met
    with Investigator Wolff in January 2012, she knew or should have known
    Dr. Baldi’s care of Paul and others had prompted the state to investigate
    Dr. Baldi.    In other words, Brenna knew or had reason to know by
    January 30, 2012, that the state was investigating whether Dr. Baldi’s
    conduct in treating several patients was substandard. We conclude the
    discovery rule, even if applied here, would not save the estate’s wrongful-
    death claim or Brenna’s consortium claim because the record establishes
    as a matter of law that Brenna knew or should have known of a possible
    connection between Paul’s death and Baldi’s medical care more than two
    years before this action was filed on February 14, 2014.
    19
    2. Brenna’s affidavit does not engender a material fact issue. The
    excerpts from Brenna’s testimony in the criminal case against Dr. Baldi
    are not the only evidence in the summary judgment record addressing
    the factual question of when Brenna knew or should have known the
    causal connection between Baldi’s care and Paul’s death.    In resisting
    Baldi’s motion for summary judgment, Brenna filed an affidavit stating
    that to the best of her “knowledge, recollection, understanding[,] and
    belief,” she did not discover Baldi might have caused or contributed to
    Paul’s death until less than two years before the petition was filed.
    However, we conclude the affidavit does not engender a genuine issue of
    material fact and does not preclude summary judgment because it
    contradicts her earlier sworn testimony.
    Summary judgment serves an important purpose:
    Every trial court has on its docket some pleaded claims and
    defenses which are actually without substance and exist
    only on paper. To obviate the labor and expense of trial to
    expose those empty vessels, summary judgment procedure
    was conceived. By proper motion, a party can compel his
    adversary to come forth with specific facts which constitute
    competent evidence showing a prima facie claim or defense.
    Paper cases and defenses can thus be weeded out to make
    way for litigation which does have something to it.
    Gruener v. City of Cedar Falls, 
    189 N.W.2d 577
    , 580 (Iowa 1971).
    “Frequently the question on motions for summary judgment is whether
    the showing in resistance to the motion is adequate.”      Sherwood v.
    Nissen, 
    179 N.W.2d 336
    , 338 (Iowa 1970).         Here, the showing in
    resistance to the motion was inadequate because it contradicted
    Brenna’s earlier sworn testimony without any explanation for the
    discrepancy.
    Some courts apply a rule providing a party opposing summary
    judgment may not manufacture a material fact issue simply by filing an
    20
    affidavit that directly contradicts prior testimony.    See Camfield Tires,
    Inc. v. Michelin Tire Corp., 
    719 F.2d 1361
    , 1365–66 (8th Cir. 1983)
    (setting forth the rule in the United States Court of Appeals for the
    Eighth Circuit that an affidavit creating only “a sham issue of fact
    instead of a genuine” one does not preclude summary judgment); see
    also Smidt v. Porter, 
    695 N.W.2d 9
    , 22 (Iowa 2005) (declining to decide
    whether Iowa should follow a similar rule because it was inapplicable to
    the circumstances then before the court). Most courts refer to this rule
    as the “sham affidavit” rule or doctrine, and although we have not
    explored it in detail, “most states that have addressed the issue” and
    most federal circuit courts of appeals apply some version of it. David F.
    Johnson & Joseph P. Regan, The Competency of the Sham Affidavit as
    Summary Judgment Proof in Texas, 40 St. Mary’s L.J. 205, 208–11 &
    nn.11–14 (2008).
    “The rule is . . . rooted in the very mission of the summary
    judgment procedure[.]”    Yahnke v. Carson, 
    613 N.W.2d 102
    , 107 (Wis.
    2000). It “calls for the rejection of the affidavit where the contradiction is
    unexplained and unqualified by the affiant.” Shelcusky v. Garjulio, 
    797 A.2d 138
    , 144 (N.J. 2002).     An unpublished court of appeals decision
    addressing a substantive inconsistency between a party’s deposition
    testimony and his affidavit supporting a resistance to a motion for
    summary judgment succinctly demonstrates the rule’s application:
    In his affidavit attached to Anita Dairy’s resistance to the
    motion for summary judgment, Mr. Kragelund asserted that
    Anita Dairy relied “exclusively on [Midwest Dairy] to provide
    an upgraded milking system.” We conclude the affidavit is
    insufficient, when taken together with the other information
    before the district court, to prevent summary judgment. A
    party resisting summary judgment “cannot create sham
    issues of fact in an effort to defeat summary judgment.”
    Mr. Kragelund’s affidavit is inconsistent with the substance
    of his deposition testimony . . . .       In particular, the
    21
    depositions clearly establish that the Kragelunds did not
    exclusively rely on Peterson and Midwest Dairy . . . either to
    remove the old stalls and install the new ones or to perform
    the electrical work on the project. Accordingly, we conclude
    Mr. Kragelund’s affidavit did not suffice to engender a
    genuine issue of fact.
    Anita Dairy, L.C. v. Kooiman, No. 03–0966, 
    2005 WL 67126
    , at *3 (Iowa
    Ct. App. Jan. 13, 2005) (quoting Am. Airlines, Inc. v. KLM Royal Dutch
    Airlines, Inc., 
    114 F.3d 108
    , 111 (8th Cir. 1997)).     We reach a similar
    conclusion today as we determine Brenna’s affidavit was insufficient to
    engender a fact question on the issue of whether she knew or should
    have known of a causal connection between Baldi’s medical care and
    Paul’s death more than two years prior to filing this action. However, in
    doing so, we emphasize several important caveats.
    First, the rule we adopt today is not limited to affidavits
    characterized by fraud or malfeasance.       Thus, we prefer the moniker
    “contradictory affidavit rule” rather than “sham affidavit rule.” Second,
    the contradictory affidavit rule “is subject to . . . important exceptions”
    that render the rule inapplicable if the affiant offers a reasonable
    explanation for any apparent contradiction between their affidavit and
    other sworn testimony.      
    Yahnke, 613 N.W.2d at 108
    .        A reasonable
    explanation might be, for example, that an affidavit clarifies ambiguous
    or confusing earlier testimony or reacts to newly discovered evidence.
    Id.; see also 
    Shelcusky, 797 A.2d at 150
    (concluding an affidavit offered
    to resist summary judgment engendered a material fact issue because it
    merely “sought to clarify [the plaintiff’s] previous representations”). Third
    (and relatedly), to invoke the rule, “the inconsistency between a party’s
    deposition testimony and subsequent affidavit must be clear and
    unambiguous.” Van Asdale v. Int’l Game Tech., 
    577 F.3d 989
    , 998 (9th
    Cir. 2009); cf. Lales v. Wholesale Motors Co., 
    328 P.3d 341
    , 360 (Haw.
    22
    2014) (concluding the contradictory affidavit rule was not applicable
    “because      [the]   declaration    was    not   clearly   and   unambiguously
    inconsistent with [the] prior deposition”).
    We   conclude    Brenna’s    affidavit   clearly   and   unambiguously
    contradicts her earlier sworn testimony in the criminal case against Dr.
    Baldi.    Although Brenna did not expressly testify in the criminal case
    that she knew or should have known of the causal connection between
    Baldi’s care and Paul’s death more than two years prior to filing this
    action, the conflict between her sworn (deposition and trial) testimony in
    the criminal case and her subsequent affidavit in this civil case is
    inescapable. Before Paul’s death, Brenna concluded Paul was struggling
    with the dosages Baldi prescribed, requested (unsuccessfully) that Baldi
    prescribe different or fewer medications, and became frustrated when, in
    her view, Baldi didn’t do enough to treat Paul’s obvious addictions. By at
    least January 30, 2012, Brenna knew the state was investigating Dr.
    Baldi’s medical care of Paul and other patients. Her affidavit stating she
    did not know or have reason to know of a possible causal connection
    between Baldi’s medical care and Paul’s death until at least a month
    later provides no clarification or explanation as to why her earlier
    testimony in the criminal case was ambiguous, mistaken, or incomplete.
    Furthermore, “the more important the fact contradicted by the
    affidavit is to the outcome of the litigation, the more likely a [trial] court
    will be justified in refusing to consider the [conflicting] affidavit.”
    McMaster v. Dewitt, 
    767 S.E.2d 451
    , 457 (S.C. Ct. App. 2014).                In
    McMaster, the court applied this principle when the key dispute in the
    affidavit resisting summary judgment was about “a fact . . . pivotal to
    whether the statute of limitations bars [the] claim.” 
    Id. We apply
    the
    principle here.
    23
    Most courts applying the contradictory affidavit rule do so when
    the plaintiff provides deposition testimony and a contradictory affidavit in
    the same case. See, e.g., Yeager v. Bowlin, 
    693 F.3d 1076
    , 1079 (9th Cir.
    2012); Hanover Ins. Co. v. Leeds, 
    674 N.E.2d 1091
    , 1094–95 (Mass. App.
    Ct. 1997); Hanna v. Cloud 9, Inc., 
    889 P.2d 529
    , 533–34 (Wyo. 1995). We
    conclude the rule can also apply when, as in this case, the previous
    testimony was presented at trial in a different proceeding. See Cothran v.
    Brown, 
    592 S.E.2d 629
    , 633 n.3 (S.C. 2004) (discussing the rule in a civil
    wrongful-death action in which a party submitted an affidavit conflicting
    with prior trial testimony).   The rule can apply if the two proceedings
    feature a common factual nucleus and the same person provides both
    the earlier testimony and the later conflicting affidavit. See Doe v. Swift,
    
    570 So. 2d 1209
    , 1213–14 (Ala. 1990) (applying the contradictory
    affidavit rule when the plaintiff’s affidavit opposing summary judgment
    contradicted her own testimony in a previous federal civil trial arising out
    of the same facts); Luttgen v. Fischer, 
    107 P.3d 1152
    , 1156 (Colo. App.
    2005) (disregarding the plaintiff’s affidavit offered in opposition to a
    motion for summary judgment in a legal malpractice case because it
    contradicted her deposition in that case and her testimony in the trial
    giving rise to the malpractice claim).
    Applying the contradictory affidavit rule within the parameters we
    have established, we disregard Brenna’s affidavit in support of her
    resistance to Baldi’s motion for summary judgment on the estate’s
    wrongful-death claim and Brenna’s consortium claim.              The other
    evidence in the summary judgment record tends to establish the estate’s
    wrongful-death claim and the spousal consortium claim were untimely
    as a matter of law. The district court did not err in granting summary
    judgment as to those claims under the circumstances presented here.
    24
    We add a few final observations. First, our decision today does not
    undercut or call into question the maxim that “negligence cases do not
    ordinarily lend themselves to summary adjudication.” Virden v. Betts &
    Beer Constr. Co., 
    656 N.W.2d 805
    , 807 (Iowa 2003).        This summary
    adjudication rests not on the ultimate question whether Baldi was
    negligent, but on the threshold question whether Gray timely filed a
    petition.     See Daboll v. Hoden, 
    222 N.W.2d 727
    , 733–34 (Iowa 1974)
    (acknowledging it is “rare” that summary judgment is proper in a
    negligence case, but concluding summary judgment on a limitations
    ground does not address the question of negligence).        Second, our
    resolution of the issues on appeal makes it unnecessary for us to address
    Gray’s constitutional arguments. Finally, O.D.G.’s parental consortium
    claim may proceed even though the wrongful-death and spousal
    consortium claims may not.          See 
    Christy, 692 N.W.2d at 706
    (acknowledging a child’s claim can be “prosecuted independently if the
    wrongful death claim is already barred under paragraph (a) of section
    614.1(9)”).
    V. Conclusion.
    The district court erred in granting summary judgment on O.D.G.’s
    parental consortium claim because O.D.G. was a minor at the time the
    action was filed and because she was under the age of eight at the time
    of the occurrence for which she is seeking to recover.        Iowa Code
    § 614.1(9)(b).    We reverse that part of the district court’s summary
    judgment ruling.     The district court did not err, however, in granting
    summary judgment on the estate’s wrongful-death claim and Brenna’s
    spousal consortium claim. We do not revisit today whether the discovery
    rule applies after Rathje to wrongful-death claims arising from negligent
    medical care because even if the rule were to be applied, the estate’s
    25
    wrongful-death claim and Brenna’s spousal consortium claim were
    untimely as a matter of law under the circumstances presented here. We
    therefore affirm in part, reverse in part, and remand for further
    proceedings on the parental consortium claim.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    All justices concur except Appel, J., who takes no part.