Estate of Butterfield v. Chautauqua Guest Home, Inc.

IN THE COURT OF APPEALS OF IOWA

No. 22-0101
Filed August 17, 2022

ESTATE OF ROBERTA ANN BUTTERFIELD by BRADLEY DEAN
BUTTERFIELD and DEANNE MARIE ROGERS, Co-Administrators,
Plaintiffs-Appellants,

vs.

CHAUTAUQUA GUEST HOME, INC., d/b/a CHAUTAUQUA GUEST HOME #3
and CHAUTAUQUA GUEST HOMES,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Colleen D. Weiland,

Judge.

An estate appeals the district court’s dismissal of its claims against a skilled

nursing facility for failure to provide a certificate of merit affidavit pursuant to Iowa

Code section 147.140 (2020). AFFIRMED.

Jeffrey A. Pitman of Pitman, Kalkhoff, Sicula & Dentice, S.C., Milwaukee,

Wisconsin, and John T. Hemminger of Law Offices of John T. Hemminger, Des

Moines, for appellant.

Joseph D. Thornton of Smith Peterson Law Firm, LLP, Council Bluffs, for

appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.

The Estate of Roberta Ann Butterfield appeals the district court’s dismissal

of its claims against Chautauqua Guest Home, Inc. for failure to provide a

certificate of merit affidavit pursuant to Iowa Code section 147.140 (2020). The

Estate contends it was not required to submit an affidavit under the statute, and if

such an affidavit was required, then (1) the parties impliedly contracted out of the

requirement, (2) Chautauqua waived the requirement, (3) the Estate substantially

complied with the requirement, and/or (4) Chautauqua should be estopped from

dismissal. Finding an affidavit was required and none of these arguments remedy

the Estate’s shortcoming, we affirm the dismissal.

I. Background Facts and Proceedings.

Roberta Ann Butterfield was a resident of Chautauqua, a skilled nursing

facility, from October 2017 through May 2019. On or about May 19, 2018,

Chautauqua staff heard a “pop” while transferring Butterfield from the bathroom

into her wheelchair. Butterfield promptly complained of left leg pain. Chautauqua

transferred Butterfield to a hospital six days later. She was diagnosed with a

subtrochanteric intertrochanteric left hip fracture and underwent surgical

intervention on May 27. Butterfield was readmitted to Chautauqua on June 1.

Butterfield spent significant time in bed after her return to Chautauqua. By

January 10, 2019, she developed an ischial pressure injury in the form of a fluid-

filled blister on her left buttocks area. This pressure injury grew over time and

became infected. By April 3, the pressure injury advanced to stage four with bone

visualization and required surgical intervention. Butterfield died on May 18.
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In April 2020, the Estate filed an action against Chautauqua for personal

injury, wrongful death, and loss of consortium. The petition alleged Chautuaqua

was negligent in the care and treatment provided to Butterfield, which resulted in

her injuries and death. Chautauqua answered on May 21. On June 15, the parties

agreed to a trial scheduling and discovery plan, which the district court approved.

Over the next year, the parties exchanged initial disclosures, interrogatories,

requests for production, and reports of expert witnesses.

On July 16, 2021, Chautauqua moved to dismiss based on the Estate’s

failure to timely file a certificate of merit affidavit pursuant to Iowa Code

section 147.140. After briefing and an unreported hearing, the district court

granted Chautauqua’s motion and dismissed the case with prejudice. The court

also denied the Estate’s motion to reconsider, amend, and enlarge the dismissal

order. The Estate filed a timely appeal.

II. Review.

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

of errors at law.” Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533, 538

(Iowa 2022) (quoting Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 298 (Iowa 2020)).

“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.

(citation omitted). “[W]e will affirm a dismissal only if the petition shows no right of

recovery under any state of facts.” Id. (alteration in original) (citation omitted). “We

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

ambiguities in [the plaintiff’s] favor.’” Id. (alteration in original) (citation omitted).
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We likewise review rulings involving statutory interpretation for correction of

errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).

III. Discussion.

“[Iowa Code section 147.140] was enacted to enable early dismissal of

meritless malpractice actions that require expert testimony to proceed.” Struck,

973 N.W.2d at 536. “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.” Id. at 538 (citing Iowa Code

§ 147.140(1)). “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. at 538–39 (quoting Iowa Code § 147.140(6)). The Estate never

filed a certificate of merit affidavit in this case, nor did it request an extension of the

deadline for good cause as allowed under Iowa Code section 147.140(4).

A. Application of Iowa Code section 147.140.

The Estate contends that no certificate of merit affidavit was required

because expert testimony is not necessary to establish the standard of care owed

to Butterfield. It is true that claims for negligence arising from nonmedical,

administrative, ministerial, or routine patient care do not require expert testimony

to establish a standard of care. See Kastler v. Iowa Methodist Hosp., 193 N.W.2d

98, 102 (Iowa 1971) (finding “the standard is such reasonable care for patients as

their known mental and physical condition may require”). Our precedent supports

the Estate’s contention that the care at issue was likely ministerial or routine in

nature. See Thompson v. Embassy Rehab. & Care Ctr., 604 N.W.2d 643, 646
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(Iowa 2000) (finding the responsibility to reposition a patient to avoid bedsores

appeared to be ministerial but the patient’s resistance to such care presented

special circumstances requiring expert testimony); Landes v. Women’s Christian

Ass’n, 504 N.W.2d 139, 141 (Iowa Ct. App.1993) (finding that taking a patient to

the bathroom was nonmedical or routine care).

Even so, we agree with the district court’s finding that the Estate failed to

establish a prima facie case because causation required expert testimony. While

section 147.140 does not require the certificate of merit affidavit to attest

specifically to causation, the requirement for an affidavit is triggered by “a cause

of action for which expert testimony is necessary to establish a prima facie case.”

Iowa Code § 147.140. “[A] causal relationship between the violation [of the

applicable standard of care] and injury sustained” is a necessary element to

establish a prima facie case of medical negligence. Plowman v. Fort Madison

Cmty. Hosp., 896 N.W.2d 393, 401 (Iowa 2017). We do not believe that

understanding the causation behind a subtrochanteric intertrochanteric hip

fracture, an ischial pressure injury, or the death of a woman with a myriad of

underlying health conditions is within the common knowledge of a non-medically

trained person. Therefore, expert witness testimony was needed with respect to

the element of causation, which triggers the statutory requirement for a certificate

of merit affidavit. See Schmitt v. Floyd Valley Healthcare, No. 20-0985, 2021 WL

3077022, at *2 (Iowa Ct. App. July 21, 2021) (finding a claim that arguably fell in

the category of nonmedical or routine care still required a certificate of merit

affidavit because expert testimony was necessary on causation).
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Nor does this action present a case of res ipsa loquitur. The doctrine of res

ipsa loquitur permits an inference of negligence when, among other conditions,

“the occurrence, in the ordinary course of things, would not have happened if

reasonable care had been used.” Miller v. Trimark Physicians Grp., Inc.,

No. 03-0055, 2003 WL 22346933, at *3 (Iowa Ct. App. Oct. 15, 2003) (citing

Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 831 (Iowa 2000)). Proving

this condition required an expert. Because a prima facie case could not be

established without an expert, we find Iowa Code section 147.140 required a

certificate of merit affidavit in this instance.

B. Implied contract.

The Estate asserts the district court erred in concluding that the parties

could not contract out of the requirement for a certificate of merit affidavit. It

contends the parties impliedly agreed that no affidavit was necessary in this case

by way of their course of dealings and the discovery plan. However, engagement

in discovery while the certificate of merit affidavit remains absent from the parties’

discovery plan does not constitute a definite offer to refrain from filing a motion to

dismiss on this ground. Even supposing a contract was formed, there is not

authority for the court to ignore its obligation to dismiss the case once the

appropriate motion is filed. The statute is clear: “Failure to substantially comply

with subsection 1 [the filing of the certificate of merit affidavit] 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.” Iowa Code

§ 147.140(6) (emphasis added). We find the parties did not and could not contract

out of this mandatory result.
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C. Waiver.

The Estate argues Chautauqua waived the statutory requirement for a

certificate of merit affidavit. Similar to the foregoing contractual analysis, we do

not find the requisite intent to waive the certificate of merit affidavit. The statute

sets forth a mandatory course of action with no expiration or other timeline. We

have previously found that agreeing to an extension involving discovery requests

does not “constructively waive” the requirement for a timely certificate of merit

affidavit. See McHugh v. Smith, No. 20-0724, 2021 WL 1016596, at *5 (Iowa Ct.

App. Mar. 17, 2021). Accordingly, we find Chautauqua did not waive the

requirement.

D. Substantial compliance.

The Estate maintains it substantially complied with the statutory

requirements for a certificate of merit affidavit. “Substantial compliance means

‘compliance in respect to essential matters necessary to assure the reasonable

objectives of the statute.’” Id. at *3 (quoting Hantsbarger v. Coffin, 501 N.W.2d

501, 504 (Iowa 1993)). We are sympathetic to the plaintiff’s position that

subsequent discovery filings may have supported a meritorious claim. However,

we have previously held that failure to provide such evidence within the tight

timeline set forth in section 147.140 will not constitute substantial compliance. See

id. at *3, *5 (finding the plaintiff’s substantial compliance argument failed even

though discovery filed after the affidavit deadline “may have established that [the

plaintiff’s] claim was not frivolous had she timely submitted it”). The Estate

contends we should look to its filings throughout the course of the judicial process,

but the initial disclosures were the only substantive filing made within the sixty-day
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window allowed by the statute. These disclosures did not fulfill the requirement for

a signed affidavit from a qualified expert that was expected under section 147.140.

Because “the timing of the certificate of merit affidavit is material,” we find the

subsequent filings do not constitute substantial compliance with the statute. See

id. at *5.

E. Estoppel.

The Estate claims the doctrine of promissory estoppel should have

precluded granting Chautauqua’s motion to dismiss. Promissory estoppel

requires:

(1) a clear and definite promise; (2) the promise was made with the
promisor’s clear understanding that the promisee was seeking an
assurance upon which the promisee could rely and without which he
would not act; (3) the promisee acted to his substantial detriment in
reasonable reliance on the promise; and (4) injustice can be avoided
only by enforcement of the promise.

Kunde v. Est. of Bowman, 920 N.W.2d 803, 810 (Iowa 2018) (citation omitted).

The Estate alleges the parties’ discovery plan constituted a clear and definite

promise. Consistent with our foregoing analysis, we are unconvinced that simply

agreeing to the parties’ discovery plan without reference to a certificate of merit

affidavit comprises a clear or definite promise. Therefore, we find Chautauqua

should not be estopped from dismissal.

IV. Disposition.

We conclude that a certificate of merit affidavit was required in this case and

failure to supply one was not relieved by the actions of either party. For these
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reasons, we affirm the district court order dismissing the Estate’s entire petition

with prejudice.

AFFIRMED.