Background
In March 2022, Richard Rarick suffered injuries during knee surgery performed by Dr. Wesley Smidt at Des Moines Orthopaedic Surgeons, P.C. (DMOS). The Raricks filed a medical malpractice suit in January 2023. Iowa Code § 147.140(1)(a) requires a medical malpractice plaintiff to serve a certificate of merit “affidavit” within sixty days of the defendant’s answer. DMOS filed its answer on March 14, 2023, starting the clock on a deadline running to May 15.
On the same day DMOS answered, the Raricks served a document titled “Certificate of Merit Affidavit.” Although the document recited that the expert, Dr. Gerlinger, was “being first duly sworn on oath,” it bore no notary stamp or jurat and did not contain the phrase “penalty of perjury.” Dr. Gerlinger had signed the document on his own and transmitted it to plaintiffs’ counsel by email. Over a year later—457 days after DMOS’s answer—the Raricks filed a properly notarized amended affidavit executed before an Illinois notary public. DMOS then moved to dismiss, arguing that the original 2023 certificate failed to comply with § 147.140 and that the 2024 affidavit was untimely.
The district court granted the motion and dismissed the suit with prejudice. The Raricks appealed, raising three claims: that DMOS waived its objections by participating in extensive discovery before moving to dismiss; that the 2023 certificate substantially complied with the statute; and that dismissal violated equal protection and due process under the Iowa Constitution. After briefing closed, the Iowa Supreme Court issued Banwart v. Neurosurgery of North Iowa, P.C., 18 N.W.3d 267 (Iowa 2025), and allowed supplemental briefing before deciding the case without oral argument.
The Court’s Holding
The Iowa Supreme Court affirmed dismissal in a 4-3 decision authored by Justice May. The court held that the 2023 certificate did not substantially comply with § 147.140 because it satisfied neither of the statute’s two permissible forms. First, it was not a true “affidavit” under Iowa Code § 622.85—which requires the affiant to appear before an authorized officer at the time of signing—because Dr. Gerlinger signed alone and sent the document by email. Second, it did not qualify as a statutory affidavit-substitute under Iowa Code § 622.1 because it omitted the mandatory phrase “penalty of perjury.” The court rejected the Raricks’ extrinsic evidence about Dr. Gerlinger’s subjective beliefs, the document’s self-description as an affidavit, and the attorney’s status as a notary public, holding that none of these circumstances could cure the facial deficiencies under the relevant statutes.
The court also held that the 2024 notarized affidavit was untimely. Although it was concededly a proper affidavit, it was served 457 days after DMOS’s answer, long outside the sixty-day window. The Raricks had not obtained an extension by agreement or by filing a motion before the deadline as § 147.140(4) requires. The court further rejected the Raricks’ “relation back” theory, holding that Iowa’s relation-back doctrine applies generally only to statutes of limitations and otherwise requires express textual authorization—which § 147.140 does not provide.
On the waiver issue, the court applied the bright-line rule from Banwart: defendants preserve their § 147.140 rights as long as they move to dismiss by the district court’s dispositive motion deadline, regardless of how much discovery has occurred in the interim. The court also rejected the constitutional claims, finding the equal protection and due process arguments indistinguishable from challenges previously rejected under the analogous expert-disclosure statute, Iowa Code § 668.11.
Key Takeaways
- Under Iowa Code § 147.140, a certificate of merit affidavit must either be executed before an authorized officer (notary or equivalent) at the time of signing, or contain the exact phrase “penalty of perjury” to satisfy the statutory affidavit-substitute rule—no amount of extrinsic evidence about the expert’s intent or beliefs can cure either deficiency.
- A corrective affidavit filed after the sixty-day statutory deadline cannot rescue a noncompliant certificate unless the parties agreed to an extension or the plaintiff obtained a court order extending the deadline before it expired; the relation-back doctrine does not apply to § 147.140 absent express statutory authorization.
- Medical malpractice defendants do not waive their right to seek dismissal under § 147.140 by engaging in discovery for months or years before filing a motion to dismiss, so long as they move before the district court’s dispositive motion deadline.
- Iowa’s equal protection and due process protections do not bar the legislature from imposing certificate-of-merit requirements exclusively on medical malpractice plaintiffs, consistent with prior precedent upholding analogous expert-disclosure rules.
Why It Matters
Rarick v. Smidt reinforces an exacting compliance standard for Iowa’s certificate of merit statute that offers plaintiffs’ counsel little margin for error. The decision makes clear that courts will not look past a document’s face—its title, its recitals, or the expert’s stated beliefs—to find substantial compliance. Attorneys handling Iowa medical malpractice cases must ensure the expert’s affidavit is either properly notarized at the moment of signing or explicitly contains the statutory “penalty of perjury” language, and they must accomplish this within the sixty-day window without waiting to see whether defendants will object.
The ruling also signals that defendants face no strategic pressure to raise certificate-of-merit defects early. By confirming the Banwart bright-line rule, the court allows defendants to conduct full discovery and still seek dismissal on technical affidavit grounds up to the dispositive motion deadline—a dynamic that could encourage defendants to litigate merits issues while preserving a dispositive technical defense in reserve. The concurring opinion by Justice Waterman adds legislative-history support for the result, noting that the Iowa Legislature affirmatively considered and rejected a cure provision during the statute’s drafting, placing the court’s ruling on firm separation-of-powers ground.