To establish a prima facie case of medical malpractice in Iowa, the plaintiff must ordinarily provide expert testimony that the defendant breached the relevant standard of care. In such a case, the plaintiff must submit a certificate of merit affidavit signed by an expert witness within sixty days of the defendant’s answer. Iowa Code § 147.140(1)(a) (2020). Failure to substantially comply with this requirement will lead, upon motion, to dismissal of the case with prejudice. § 147.140(6). Iowa law also requires that an expert witness on standard of care or its breach be “licensed to practice in the same or a substantially similar field as the defendant.” § 147.139(1).
In an Iowa medical malpractrice case on appeal, the plaintiff had submitted a certificate of merit signed by a physician who had practiced in the same field—plastic surgery—as the defendant. But due to his retirement, the physician’s active practice licenses had expired and become inactive, meaning that he was no longer able to practice medicine. The defendants moved to strike the expert and for summary judgment on this ground. After the district court denied the defendants’ motion, the Supreme Court of Iowa granted their application for an interlocutory appeal.
The Supreme Court of Iowa stated in its December 22, 2023 opinion: “We now conclude that the “licensed to practice” language in the statute requires the expert to have an active license that allows the actual practice of medicine; an inactive license does not meet this requirement. Therefore, we reverse the district court’s ruling and remand for entry of judgment in favor of the defendants.”
The Supreme Court of Iowa explained: “No one disputes that Dr. Marfuggi was “licensed” in New York and New Jersey when he signed the certificate of merit affidavit and his expert report for this case in 2020. Under New York law, a physician’s license “shall be valid during the life of the holder unless revoked, annulled or suspended.” N.Y. Educ.
Law § 6502(1) (McKinney 2020). However, Dr. Marfuggi had transitioned to an “inactive license” in New York when he retired as of July 1, 2019. As the New York State Education Department website explains, a medical professional—
including a physician—must have their license “registered” if they wish to practice … Likewise, Dr. Marfuggi had become a “retired” licensee upon his 2019 retirement in New Jersey. New Jersey recognizes the status of a “retired” licensee who is licensed but not authorized to practice medicine … Clearly, Dr. Marfuggi would have qualified as a standard-of-care expert if he had signed the certificate of merit affidavit and the expert report in 2018, before his retirement. The fighting issue in this case is whether Dr. Marfuggi was “licensed to practice” in 2020, notwithstanding his retirement and the inactive and retired status of his licenses … While the matter is not free from doubt, when we weigh all of these considerations together, we conclude that “license to practice” as used in section 147.139(1) requires that the expert currently possess a license that authorizes practice. That is the more logical reading of the actual text. It is not logical to say that “to practice” modifies the language that follows it but not the language that precedes it. Rather, we are dealing with an infinitive that connects both. The physician has a license. What kind of license? A license to practice in the same or substantially similar field as the defendant.”
“Having concluded that the statute requires experts to be currently licensed to practice, we do not believe that an affidavit from a physician who retired in 2019 and took inactive or retired status at that time amounts to substantial
compliance. Because Dr. Marfuggi did not have a license to practice medicine when he signed the certificate of merit affidavit or the expert report, we reverse and remand with directions that judgment be entered in favor of the defendants.”
Source Hummel v. Smith, No. 22–1572.
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