Background
In January and February 2019, Michelle Bunce sought emergency care at multiple Iowa hospitals for severe headaches and vomiting. After her condition deteriorated, she was admitted to Iowa Methodist Medical Center, where physicians considered but initially discounted diagnoses of posterior reversible encephalopathy syndrome (PRES) and reversible cerebral vasoconstriction syndrome (RCVS). Physicians instead performed a brain biopsy to rule out cerebral vasculitis. The biopsy site subsequently hemorrhaged, and Michelle was transferred to the Mayo Clinic, where doctors diagnosed her with PRES and RCVS. Allegedly due to the delays in treatment, Michelle suffered permanent brain damage and spastic quadriparesis, leaving her wheelchair-bound and dependent on constant skilled nursing care.
In February 2021, Michelle’s husband and court-appointed guardian, Thomas Bunce, filed a medical malpractice action against the treating Iowa physicians and hospitals. The petition was accompanied by a certificate of merit (COM) signed by Dr. Rajat Dhar opining that the defendants breached the standard of care. The COM contained prefatory language stating the signatory was “duly sworn on oath” and concluded that the information was “true and correct to the best of my knowledge and belief,” but it lacked a jurat or any statement that it was signed under penalty of perjury, and no oath was administered to Dr. Dhar at the time of signing.
The defendants did not challenge the COM when it was filed and the parties litigated the case for three years, including expert disclosures and depositions. In May 2024, the Iowa Supreme Court decided Miller v. Catholic Health Initiatives–Iowa, Corp., 7 N.W.3d 367 (Iowa 2024), holding that Iowa Code section 147.140 unambiguously requires a COM to be signed under oath or under penalty of perjury. Following Miller, the plaintiffs filed an amended, notarized COM and a separate affidavit from Dr. Dhar asserting that when he signed the 2021 COM he believed he was acting under oath and subject to penalty of perjury. The defendants then moved to dismiss with prejudice under section 147.140(6). The district court denied the motion, ruling that Miller applied only prospectively, that the defendants had waived their challenge by years of delay, and that the 2021 COM substantially complied with the statute. The defendants sought and were granted interlocutory appeal.
The Court’s Holding
The Iowa Supreme Court reversed on all three grounds and remanded with instructions to dismiss the action with prejudice. On the retroactivity question, the court held that Miller applies to all pending cases, including those in which a noncompliant COM was filed before Miller was decided. Because Miller interpreted the unambiguous text of a statute that had been in effect since 2017 rather than overruling prior precedent or establishing a new principle of law, the threshold requirement for prospective-only application under the Beeck v. S.R. Smith Co. framework was not met. The court emphasized that judicial decisions interpreting statutes are authoritative statements of what the statute meant before as well as after the decision.
On the waiver issue, the court applied its companion decision in Rarick v. Smidt, ___ N.W.3d ___, 2026 WL 1441855 (Iowa May 22, 2026), to hold that the defendants’ motion to dismiss was timely because it was filed before the district court’s dispositive motion deadline, and litigation activity before that deadline does not constitute implied waiver of a section 147.140(6) challenge.
On substantial compliance, the court again applied Rarick to hold that a COM lacking a jurat or penalty-of-perjury language does not substantially comply with section 147.140, and that neither Dr. Dhar’s later affidavit explaining his subjective belief nor the subsequently filed amended COM cured the defect in a timely manner. Three justices concurred in the judgment only, adhering to their prior dissenting views in Rarick and Banwart v. Neurosurgery of North Iowa, P.C. that such COMs substantially comply with the statute, but joining the result to avoid an inconsistent outcome.
Key Takeaways
- A certificate of merit filed under Iowa Code section 147.140 must contain a jurat or explicit penalty-of-perjury language; a COM that merely recites the expert was “duly sworn” without a qualifying officer administering the oath does not substantially comply, and a later affidavit explaining the expert’s subjective belief does not cure the defect.
- The Miller decision interpreting section 147.140’s oath requirement applies retroactively to all pending cases regardless of when the original COM was filed, because Miller enforced existing statutory text rather than establishing a new legal principle.
- Defendants in a medical malpractice action do not waive a section 147.140(6) dismissal challenge merely by participating in discovery and litigation for years before filing their motion, so long as the motion is filed before the court’s dispositive motion deadline.
- A dismissal with prejudice is the mandatory remedy under section 147.140(6) when a compliant COM is not timely filed.
Why It Matters
This decision closes a significant loophole that plaintiffs and some trial courts had relied upon to salvage noncompliant certificates of merit following the Iowa Supreme Court’s 2024 ruling in Miller. By rejecting both prospective-only application and substantial compliance arguments, the court has made clear that the oath requirement is a strict, retroactive mandate — any COM signed without proper oath administration or penalty-of-perjury language is fatally defective, regardless of an expert’s intent at the time of signing or subsequent curative filings.
For plaintiffs’ malpractice counsel in Iowa, the ruling is a stark reminder that procedural compliance with section 147.140 is non-negotiable from the moment suit is filed. Defense counsel, conversely, now have strong authority to challenge COMs filed years ago that lack proper oath formalities, provided they move before the dispositive motion deadline. The persistent concurrences from three justices signal ongoing tension on the court over whether the statute’s requirements are being applied too harshly, but the majority position — reinforced across Miller, Rarick, and now Bunce — appears firmly settled.