Rosemary Loper v. Southeast Iowa Regional Medical Center

IN THE COURT OF APPEALS OF IOWA
_______________

No. 24-1824
Filed February 25, 2026
_______________

Rosemary Loper,
Plaintiff–Appellant,
v.
Southeast Iowa Regional Medical Center,
Defendant–Appellee.
_______________

Appeal from the Iowa District Court for Des Moines County,
The Honorable Joshua Schier, Judge.
_______________

AFFIRMED
_______________

William Tyler Logan, Keokuk, attorney for appellant.

Desirée A. Kilburg, Paul J. Esker, and Jacob H. Schiller of Bradley & Riley
PC, Iowa City, attorneys for appellee.
_______________

Considered without oral argument
by Ahlers, P.J., and Chicchelly and Sandy, JJ.
Opinion by Chicchelly, J., Dissent by Sandy, J.

1
CHICCHELLY, Judge.

Rosemary Loper appeals the district court order granting summary
judgment for Southeast Iowa Regional Medical Center, Inc. (SEIRMC) on
her claim of negligence. She contends the district court erred by granting
summary judgment against her for not serving a certificate of merit affidavit
under Iowa Code section 147.140 (2023). Finding no error, we affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.
Loper’s negligence claim stems from a fall she suffered after receiving
medical treatment in October 2021. Loper, then eighty-two years old, was
admitted to SEIRMC for nausea, vomiting, and abdominal pain. She was
discharged about four hours later after being diagnosed with a urinary tract
infection. Loper dressed and waited for someone to come with a wheelchair
to bring her out of the building. When nobody came, she left the exam room
and fell while walking to the exit. Loper suffered an L3 compression fracture.

In August 2023, Loper filed this expedited civil action against
SEIRMC, alleging that it breached its duty by not providing the necessary aid
to prevent Loper from falling after treating her. In July 2024, SEIRMC
moved for summary judgment because Loper never obtained a certificate of
merit showing a prima facie case. Loper resisted, arguing that her claim
involved “nonmedical, administrative, ministerial, or routine care” so expert
testimony was not needed. The district court rejected Loper’s argument and
found that “the decision as to whether or not a patient needs to be discharged
under supervision or with a wheelchair requires a personal assessment by
their treating provider.” Because expert testimony is necessary to help a jury
decide whether SEIRMC breached the standard of care by not providing
Loper with a wheelchair, the court held that a certificate of merit affidavit was
required by Iowa Code section 147.140.

2
II. SCOPE AND STANDARD OF REVIEW.
We review the district court’s summary judgment ruling and questions
of statutory interpretation for correction of errors at law. Banwart v.
Neurosurgery of N. Iowa, P.C., 18 N.W.3d 267, 272 (Iowa 2025).
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. 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.

Kirlin v. Monaster, 984 N.W.2d 412, 415 (Iowa 2023) (cleaned up). A party
to an expedited civil action may move for summary judgment on limited
grounds. See Iowa R. Civ. P. 1.281(3)(b)(1). Not making expert disclosures
when required may be grounds for summary judgment. Iowa R. Civ.
P. 1.281(3)(b)(1)(4) cmt.

III. DISCUSSION.
The main question on appeal is whether Loper had to serve a
certificate of merit affidavit on SEIRMC. Iowa Code section 147.140(1)(a)
requires that a plaintiff in a personal injury action alleging negligence in the
practice of healthcare serve the defendant with a certificate of merit affidavit
signed by an expert witness. This requirement extends to causes of action
“for which expert testimony is necessary to establish a prima facie case.”
Iowa Code § 147.140(1)(a). The affidavit must be signed by the expert and
set out the expert’s familiarity with the applicable standard of care and its
breach by the defendant. Id. § 147.140(1)(b). If a plaintiff does not
“substantially comply” with the requirements of section 147.140(1), the
defendant can move to dismiss with prejudice any cause of action requiring
expert testimony to show a prima facie case. Id. § 147.140(6).

3
We begin by deciding whether the provisions of section 147.140 apply
to Loper’s claim. It is undisputed that Loper filed an action for personal
injury against a healthcare provider.1 Thus, the first two requirements for
serving a certificate of merit affidavit are met.

The fighting issue is whether Loper’s action concerns negligence in
the practice of healthcare that requires expert testimony to show a prima facie
case. The supreme court has recognized that some actions brought against
healthcare providers involving routine care do not need expert testimony. See
generally Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 542–44
(Iowa 2022) (discussing cases from Iowa and persuasive authority that
illustrate the distinction between actions that require expert testimony and
those that do not). For example, in situations involving medical professionals
providing “nonmedical, administrative, ministerial, or routine care . . . the
standard is such reasonable care for patients as their known mental and
physical condition may require,” so expert testimony is not needed. Kastler
v. Iowa Methodist Hosp., 193 N.W.2d 98, 102 (Iowa 1971). The supreme court
set out the test for the necessity of expert testimony in Thompson v. Embassy
Rehabilitation & Care Center:
If 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.

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

1
Section 148.140(7) states that “health care provider” means the same as defined
in section 147.136A.

4
We turn then to whether Loper’s claim requires expert testimony.
Loper argues that a person of common understanding can decide whether
she needed to be escorted out of the facility in a wheelchair after discharge
based on her medical history, her symptoms, and the likelihood that she had
nothing to eat or drink for several hours. We disagree. Addressing a similar
claim, the supreme court held that whether a healthcare provider improperly
supervised a patient based on the patient’s condition “is beyond the
understanding of ordinary jurors.” Struck, 973 N.W.2d at 543 (affirming the
dismissal of a petition under section 147.140 based on a claim that provider
was negligent by failing to impose restraints or other safety measures to keep
her from standing unattended and the patient stood, fell, and struck her chin
on the floor); accord Otero v. State, No. 23-0519, 2024 WL 1553792, at *2
(Iowa Ct. App. Apr. 10, 2024) (affirming district court’s finding that
“questions . . . regarding evaluations by radiology technologists as to a
patient’s fall risk and what preventative measures must be taken to ensure
that a patient at risk of a fall is not injured in a radiology procedure” are not
within the knowledge and experience of an ordinary layperson and thus
require expert testimony).

The district court likewise held that expert testimony is necessary to
decide the standard of care in this case. Though it noted that “discharging a
patient certainly appears at first glance to be a routine and ministerial task,”
the court found that whether “a patient needs to be discharged under
supervision or with a wheelchair requires a personal assessment by their
treating provider.”
Such assessment requires more than a listing of the patient’s recent
medical history. It requires an understanding of the patient’s medical
condition that is outside the common understanding of the jury. The
hospital has no policy requiring wheelchair use or assistance upon
discharge, and [Loper] has not alleged that such a routine policy should

5
exist as part of [SEIRMC]’s standard of care. Rather, [Loper] alleges that
under her specific circumstances, with her medical history and symptoms
at the time, [her healthcare provider] owed her the duty of care to provide
a wheelchair and assistance upon discharge. The assessment [Loper]
believes [her provider] should have made was a medical judgment, not part
of routine or ministerial care. Rather, [Loper] alleges that under her
specific circumstances, with her medical history and symptoms at the
time, [her provider] owed her the duty of care to provide a wheelchair and
assistance upon discharge. The assessment [she] believes [her provider]
should have made was a medical judgment, not part of routine or
ministerial care.

The court added that Loper does not know what caused her fall, so it is
unreasonable to force the jury to find the cause and figure out whether her
provider breached the standard of care without help from an expert witness.
We agree that these conclusions are outside the common understanding of a
jury and expert testimony is needed to show the professional standard of care
for someone showing Loper’s symptoms. Thus, a certificate of merit
affidavit is required under section 147.140. Because Loper did not serve a
certificate of merit affidavit as provided in section 147.140, the district court
did not err in granting summary judgment for SEIRMC.

Loper asks us to consider whether a “clear and convincing” standard
should be applied in determining whether expert testimony is needed to
comply with Iowa Code section 147.140 in expedited civil actions. She raises
this issue for the first time on appeal “as a question of policy appropriately
reserved for consideration at the appellate level.” But our well-established
rules of error preservation require that an argument must be raised and
decided by the district court before we can decide it on appeal. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We therefore decline to address

6
this argument. Because we find her remaining arguments lack merit or need
not be addressed after affirming the summary judgment ruling, we affirm.

AFFIRMED.

Ahlers, P.J., concurs; Sandy, J. dissents.

7
SANDY, Judge (dissenting).

The error in this case is not factual or procedural; it is categorical. By
treating routine patient assistance as professional medical judgment, the
majority applies Iowa Code section 147.140 (2023) to a claim the statute does
not reach. In Estate of Butterfield v. Chautauqua Guest Home, Inc., the Iowa
Supreme Court made that boundary unmistakably clear—and it places
Loper’s claim outside of section 147.140. 987 N.W.2d 834, 845–46 (Iowa
2023).

In Butterfield, the Iowa Supreme Court emphasized that
section 147.140 is not triggered merely because a defendant is a healthcare
provider or because the alleged negligence occurred in the course of patient
care. Id. at 840–41. Rather, the statute applies only when expert testimony is
required to establish the standard of care or breach, not when a jury can
evaluate the alleged negligence using ordinary knowledge and experience. Id.
at 841. The court rejected a categorical approach and instead required a
threshold inquiry into the nature of the conduct alleged. Id. And where the
claim concerns routine care—such as physical handling, supervision, or
assistance of a vulnerable person—the absence of a certificate of merit does
not mandate dismissal. Id.

That is precisely what occurred here. Like in Butterfield, Loper does
not allege that a medical professional misdiagnosed her, prescribed improper
medication, or exercised flawed clinical judgment. She does not challenge
medical decision-making or care. Instead, she alleges that after receiving
care, she was left without assistance despite her age and physical condition,
and that she fell while attempting to exit the facility. That allegation concerns

8
routine patient assistance and supervision, not professional medical
negligence.

Moreover, Butterfield is not an outlier in our case law. In Kastler v. Iowa
Methodist Hospital, the Iowa Supreme Court drew a foundational distinction
between professional medical judgment and routine, custodial hospital care.
193 N.W.2d 98, 101–02 (Iowa 1971). The court held that when the alleged
negligence concerns routine patient assistance—there, permitting a patient
with known fainting spells to shower unattended—the applicable standard is
ordinary reasonable care in light of the patient’s known condition, not a
professional standard requiring expert testimony. Id. at 101–03. Critically, the
Kastler court rejected the notion that conduct becomes “professional”
simply because it occurs in a hospital or involves patient care. Id. at 101.
Where a jury can assess the alleged negligence using common knowledge and
experience, the claim lies outside the realm of professional malpractice. Id.
at 102. That categorical boundary—between medical judgment and routine
care—remains settled Iowa law regardless of the latter enacted certificate of
merit. See Butterfield, 987 N.W.2d at 841.

Likewise, Cockerton v. Mercy Hospital Medical Center reaffirmed
Kastler’s framework. 490 N.W.2d 856, 859–60 (Iowa Ct. App. 1992). There,
we held that a patient’s claim arising from a fainting episode during a routine
x-ray procedure did not require expert testimony because the alleged
negligence concerned ordinary patient handling and supervision. Id. at 859.
The court emphasized that even where trained medical personnel are
involved, not all conduct is professional in nature; routine assistance,
restraint, and monitoring remain subject to an ordinary-care standard when
they can be evaluated by lay jurors. Id. at 859–60. Cockerton reinforces that

9
our courts consistently resist transforming routine patient-care claims into
medical-judgment cases by default.

Respectfully, I believe the majority’s reliance on Struck v. Mercy Health
Services-Iowa Corp., 973 N.W.2d 533 (Iowa 2022) is misplaced. Struck is
materially different. There, the plaintiff expressly alleged professional
negligence, including improper management of her medication and
inadequate supervision in light of the unique risks created by her medication.
Struck, 973 N.W.2d at 536–38. The court held that those claims required
expert testimony because they turned on medical judgment beyond the
understanding of lay jurors. Id. at 542–44. In addition, Struck expressly
pleaded professional negligence in alleging a healthcare-provider-patient
relationship. See id. Those allegations, on their face, required expert
testimony to establish the medical standard of care and breach. The court
repeatedly emphasized that Struck pleaded herself into section 147.140 by
choosing a professional-negligence theory. Id. at 536–38.

But Loper makes no such allegations. Her claim does not depend on
assessing medication interactions or clinical standards of care. It depends on
whether ordinary care required providing physical assistance to a patient in
her condition. By equating Loper’s claim with Struck, the majority effectively
treats routine patient assistance as medical judgment as a matter of law. That
approach collapses the distinction Butterfield carefully preserved and risks
converting section 147.140 into a categorical gatekeeping statute for all claims
arising in healthcare settings. But the Butterfield court expressly rejected such
proposition. 987 N.W.2d at 842–43, 845–46.

In Butterfield, the negligence claim centered on:

 physical handling of a resident,

10
 repositioning,

 supervision, and

 response to obvious physical risks (falls, pressure injuries).

Yet the supreme court held section 147.140 did not apply because
expert testimony was not required to establish the standard of care or breach.
Id. at 845–46. Similar to Butterfield, here we have:

 no allegation of misdiagnosis,

 no allegation of improper medication, and

 no challenge to medical decision-making.

The negligence claim is almost identical to Butterfield: a failure to assist
a vulnerable patient ambulate resulting in an injurious fall. Those allegations
were not framed as medical malpractice in diagnosis or treatment, but as
failures in basic patient care and supervision. In both cases, the alleged
negligence concerns how the patient was physically handled and supervised,
not professional medical decision-making.

In my view, this case belongs on the Butterfield side of the line. When
a statute designed to screen medical-negligence claims is applied to bar a
routine-care claim, the statute is no longer being applied—it is being
expanded. Butterfield does not permit that expansion, and neither should we.

11