No “Substantial Compliance” Under Iowa Code § 147.140 Without a Jurat or the Words “Penalty of Perjury,” and No Untimely Cure Absent § 147.140(4)

Case: Teresa Marie Rarick and Richard Dee Rarick v. Wesley Smidt And Des Moines Orthopaedic Surgeons, P.C.
Court: Supreme Court of Iowa
Date: May 22, 2026

1. Introduction

This appeal arose from a medical malpractice action filed by Richard Rarick and his wife against orthopedic surgeon Dr. Wesley Smidt and Des Moines Orthopaedic Surgeons, P.C. (“DMOS”). Iowa Code section 147.140(1)(a) requires a medical malpractice plaintiff to serve a timely “certificate of merit affidavit” within sixty days after the defendant answers.

The central dispute was not whether plaintiffs timely served a certificate (they did), but whether the served document qualified as an “affidavit” (or an authorized substitute) under the court’s recent interpretations. Plaintiffs later served a notarized affidavit well after the sixty-day deadline and argued, among other things, waiver by DMOS, substantial compliance, relation-back/cure, and constitutional infirmity.

Key Issues

  • Waiver/forfeiture: Did DMOS lose the right to seek dismissal by litigating and conducting discovery before moving to dismiss?
  • Substantial compliance: Did the initial certificate satisfy § 147.140 because it recited being “duly sworn,” despite lacking a jurat/notary and lacking the words “penalty of perjury”?
  • Untimely cure / relation back: Could a later notarized affidavit (served 457 days after the answer) cure the initial defect?
  • Constitutionality: Does dismissal under § 147.140 violate equal protection or due process under the Iowa Constitution?

2. Summary of the Opinion

The Iowa Supreme Court affirmed dismissal. Applying its recent precedents—Miller v. Catholic Health Initiatives-Iowa, Corp. and Banwart v. Neurosurgery of North Iowa, P.C.—the court held:

  • Substantial compliance with § 147.140’s “affidavit” requirement requires either (1) a true affidavit under Iowa Code § 622.85 (oath administered before an authorized officer, typically evidenced by a jurat), or (2) an affidavit substitute under Iowa Code § 622.1 containing the phrase “under penalty of perjury.”
  • Plaintiffs’ timely 2023 certificate was neither: it had no jurat/notary and did not include “penalty of perjury.” Extrinsic evidence about the expert’s subjective belief or counsel’s communications could not supply the missing statutory elements.
  • The later 2024 notarized affidavit was a true affidavit but was untimely and could not cure the defect because plaintiffs did not secure an extension under § 147.140(4) and § 147.140 contains no relation-back authorization.
  • DMOS did not waive its § 147.140 defense by participating in discovery; under Banwart, filing before the dispositive motion deadline preserves the right.
  • Constitutional challenges failed, by analogy to the court’s prior rejections of challenges to Iowa Code § 668.11 in Kennis v. Mercy Hosp. Med. Ctr. and Thomas v. Fellows.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

Foundational § 147.140 “affidavit” cases

  • Miller v. Catholic Health Initiatives-Iowa, Corp.: The majority treats Miller as the controlling articulation of what counts as substantial compliance with an “affidavit” requirement: an affidavit must meet Iowa Code § 622.85, and the legislature’s affidavit substitute in § 622.1 requires the words “under penalty of perjury.” The court imports Miller’s insistence that the affidavit requirement be “taken seriously” and that “The 'under penalty of perjury' language must be included.”
  • Banwart v. Neurosurgery of North Iowa, P.C.: Banwart reaffirms Miller and supplies two additional pillars that mattered here: (1) omission of “penalty of perjury” is “fatal” if the document is not a true affidavit, and (2) defendants do not forfeit § 147.140 rights by litigating and doing discovery before moving to dismiss (as long as they comply with motion-deadline constraints). The Rarick majority explicitly applies Banwart as foreclosing waiver and substantial-compliance arguments.
  • Shontz v. Mercy Medical Center-Clinton, Inc. (unpublished): Cited as consistent with the court’s interpretation that non-notarized, non-§ 622.1-compliant certificates do not satisfy § 147.140. While unpublished, it functions as reinforcing authority in the majority’s narrative of doctrinal continuity after Miller.

Definition of “affidavit” and oath-administration requirements

  • Tunia v. St. Francis Hosp.: Quoted (via Miller) for the proposition that to make an affidavit, “there must be present at the same time the officer, the affiant, and the paper,” and an oath must be administered. The majority uses this to reject the idea that an expert can create an affidavit alone and later “prove” it was sworn.
  • In re Est. of Hoyt: Supports the strict statutory notion that a document is not an affidavit where there is “no showing it was made before any person authorized to take or administer oaths.” This case functions as an Iowa anchor for the “presence of an authorized officer” requirement.
  • State v. Carter and City of Cedar Rapids v. Atsinger: Used to emphasize that oath/affirmation elements (and, by analogy, affidavit formalities) are not satisfied merely by self-certification. Carter also supports the statutory centrality of “penalty of perjury” language under § 622.1.
  • Miller v. Palo Alto Bd. of Supervisors: Cited (via Banwart) regarding a jurat as proof that an oath was administered—supporting the court’s insistence on objectively verifiable administration of an oath.

Untimely cure, extensions, and the sixty-day deadline

  • Estate of Fahrmann v. ABCM Co.: A key deadline-enforcement precedent: a certificate served after the sixty-day deadline is untimely absent a timely motion for extension or an agreed extension under § 147.140(4). The majority uses Fahrmann to foreclose “late cure” through post-deadline filings.
  • Miller v. Catholic Health Initiatives-Iowa, Corp. (again): Extended the logic of Fahrmann to reject the argument that a later, compliant, “penalty of perjury” report can cure a prior non-compliant submission. The Rarick court applies that same rule to the 2024 notarized affidavit.

Relation-back doctrine limits

  • Walker v. Daniels and Erickson v. Wright Welding Supply, Inc.: Cited for the proposition that relation back is generally statute-of-limitations-centric and not a free-floating equitable power to override statutory deadlines.
  • Christiansen v. Iowa Bd. of Educ. Exam'rs, Reyes v. Int'l Van Lines, Inc.: Illustrate relation back where a procedural rule expressly authorizes it (Iowa R. Civ. P. 1.402(5)).
  • Jacobs v. Iowa Dep't of Transp. and Toney v. Parker: Provide another example of relation-back-like treatment that is rooted in textually authorized e-filing rules.
  • State v. Thompson: Cited to highlight that procedural mechanisms come from delegated rulemaking authority subject to legislative oversight—supporting the court’s insistence on textual authorization before applying relation back.
  • Hallett v. Chi. & N.W. Ry.: Noted as involving “special principles” for amendment of true affidavits, but distinguished because the 2023 certificate was not an affidavit in the first place.

Constitutional analogies

  • Kennis v. Mercy Hosp. Med. Ctr. and Thomas v. Fellows: These cases rejected due process/equal protection challenges to Iowa Code § 668.11 (expert designation requirements for suits against licensed professionals). The majority treats § 147.140 as constitutionally analogous: a specialized precondition for certain claims, justified by rational legislative purposes related to medical liability.

Concurrence’s additional authorities

  • Fairfield v. WakeMed and State v. Cobb: Used in the concurrence to emphasize separation-of-powers concerns and judicial restraint—courts should not rewrite statutes to add cure/extension mechanisms.
  • Est. of Butterfield v. Chautauqua Guest Home, Inc.: Invoked to support the interpretive inference from legislative deletion: removal of draft language can reflect a “conscious policy decision.”
  • Struck v. Mercy Health Servs.-Iowa Corp.: Cited for context that Iowa joined other states with certificate-of-merit regimes and to frame § 147.140’s policy objectives.
  • Payne v. Tennessee and Book v. Doublestar Dongfeng Tyre Co.: Cited to justify adherence to precedent (stare decisis) and consistent application.
  • Apple Hill Growers v. El Dorado Orchards, Inc., In re World Trade Ctr. Disaster Site Litig., Nissho-Iwai Am. Corp. v. Kline: The concurrence uses these federal cases to reinforce that “under penalty of perjury” language is an “integral requirement” for unsworn declarations and cannot be treated as optional.

3.2. Legal Reasoning

(a) The court’s two-track model for “substantial compliance”

The majority’s reasoning is definitional and text-driven. “Affidavit” is used repeatedly in § 147.140, so the court reads that term through the legislature’s definition in Iowa Code § 622.85. That definition requires the declaration be made “under oath” and “before” a person authorized to administer oaths.

But because § 147.140(6) speaks in terms of “substantial compliance,” the court recognizes a second, legislatively authorized way to “substantially comply”: the affidavit substitute in Iowa Code § 622.1, which allows an unsworn writing to stand in for an affidavit if it contains the statutory “under penalty of perjury” language.

Bottom line rule applied: Substantial compliance exists only if the certificate is either (1) a true § 622.85 affidavit (oath before an authorized officer, typically evidenced by a jurat/notary), or (2) a § 622.1 substitute containing the words “under penalty of perjury.”

(b) Formal defects cannot be supplied by intent, belief, or extrinsic evidence

Plaintiffs attempted to bridge the gap with extrinsic evidence: the expert’s stated belief he was under oath, his belief he was subject to “penalty of perjury,” and the fact plaintiffs’ counsel was a notary who received the signed document by email. The court treated these as legally irrelevant because:

  • Under § 622.85, the missing element was not sincerity; it was the act of oath administration “before” an authorized officer. Email transmission to a notary does not establish “presence” when the document was signed.
  • Under § 622.1, legal effect turns on the document’s text, not the signer’s subjective understanding; the statute requires the phrase “under penalty of perjury.”

(c) Strict enforcement of the sixty-day deadline; extensions must follow § 147.140(4)

The court reinforced that § 147.140(4) contains the exclusive mechanisms to extend the sixty-day window: party agreement or a court-ordered extension for good cause upon a motion filed before the deadline. Absent compliance with § 147.140(4), a late affidavit—even a perfect one—cannot cure.

(d) No relation back without textual authorization

Plaintiffs’ “relation back” theory failed because the court treated relation back as something that typically requires an express source of authority (rule or statute). The opinion contrasts explicit relation-back authorizations in other contexts with the lack of any in § 147.140. The court therefore enforced the statute “as written,” declining to create a judicial cure mechanism that would functionally amend the statute.

(e) Waiver/estoppel arguments foreclosed by a “bright-line rule”

The court applied Banwart to adopt (and extend) a practical bright line: if the defense is asserted before the dispositive motion deadline, litigation participation and discovery do not waive § 147.140 rights. This transforms waiver arguments into a scheduling/deadline question, not an equitable case-by-case inquiry.

(f) Constitutional claims rejected by analogy to § 668.11 precedent

The court treated plaintiffs’ equal protection and due process arguments as substantially similar to previously rejected challenges to Iowa Code § 668.11. Under Kennis and Thomas, the legislature may impose specialized expert-related hurdles on certain categories of claims and defendants, and rational policy goals related to medical liability suffice.

3.3. Impact

Practical effects on medical malpractice litigation

  • Drafting and execution discipline becomes outcome-determinative: A timely certificate that “sounds sworn” but lacks either a jurat/notary or the exact “under penalty of perjury” language risks dismissal with prejudice.
  • Procedural safety valves must be used early: Counsel who detect (or fear) a defect must move within the sixty days for an extension under § 147.140(4), or secure an agreement—waiting until after the deadline is fatal under this line of cases.
  • Defendants gain leverage on timing: With Banwart and this decision, defendants may litigate, conduct discovery, and still move to dismiss so long as they do so before the dispositive motion deadline.
  • Dismissals with prejudice for technical noncompliance will continue: The court’s approach is designed to be administrable and rule-like, but it increases the likelihood of dispositive outcomes unrelated to the merits.

Institutional and legislative implications

The concurrence underscores that draft versions of the 2017 legislation contained a notice-and-cure provision that was deleted before enactment. That history will likely be cited in future cases resisting judicially created cure doctrines. Meanwhile, the dissents (Mansfield and McDermott) frame the majority’s approach as “hyper-technical” and inconsistent with the statute’s “substantially comply” language—arguments that may be redirected to the legislature in the form of proposed amendments (e.g., a statutory cure period).

4. Complex Concepts Simplified

  • Affidavit (Iowa Code § 622.85): A written statement made under oath before an authorized oath administrator (often a notary). The notary typically adds a jurat to certify the oath occurred.
  • Jurat: The notary’s (or other officer’s) certification attached to an affidavit stating when, where, and before whom the oath was administered. Its presence is strong objective proof that the affidavit is a real affidavit.
  • Affidavit substitute (Iowa Code § 622.1): A way to avoid notarization by including the statutory phrase that the signer certifies the contents are true “under penalty of perjury under the laws of this state.” The court treats the presence of “penalty of perjury” language as essential.
  • Substantial compliance (as applied here): Not “close enough” in a general sense; it means compliance via one of two recognized statutory routes: a true affidavit (jurat/oath before officer) or a § 622.1 penalty-of-perjury declaration.
  • Dismissal with prejudice: The case is dismissed permanently as to claims requiring expert testimony; the plaintiff cannot refile those claims.
  • Relation back: A doctrine sometimes allowing a later filing to be treated as if filed earlier, typically when a rule/statute authorizes it. The court refused to apply it absent textual authorization in § 147.140.
  • Dispositive motion deadline: A court-imposed cutoff for motions that could end the case (summary judgment, dismissal). Under Banwart and this decision, a defendant’s § 147.140 dismissal motion filed before this deadline is not waived by earlier litigation conduct.

5. Conclusion

Rarick v. Smidt cements a rigid, administrable rule for Iowa Code § 147.140 compliance: a timely certificate of merit must be either a true affidavit executed before an authorized officer (with a jurat/notary) or a statutory substitute containing the words “penalty of perjury.” Subjective belief, later explanations, and post-deadline corrective affidavits cannot save a deficient filing unless an extension is obtained through § 147.140(4). The decision also extends Banwart’s practical protection for defendants: participating in discovery does not waive § 147.140 dismissal rights when the motion is timely under the case schedule.