House Amendment 8322


PAG LIN




     1  1    Amend House File 2716 as follows:
     1  2 #1.  By striking everything after the enacting
     1  3 clause and inserting the following:
     1  4    <Section 1.  Section 147.139, Code 2005, is amended
     1  5 to read as follows:
     1  6    147.139  EXPERT WITNESS STANDARDS.
     1  7    If the standard of care given by a physician and or
     1  8 surgeon licensed pursuant to chapter 148, or
     1  9 osteopathic physician and or surgeon licensed pursuant
     1 10 to chapter 150A, or a dentist licensed pursuant to
     1 11 chapter 153, is at issue, the court shall only allow a
     1 12 person to qualify as an expert witness and to testify
     1 13 on the issue of the appropriate standard of care if
     1 14 the person's medical or dental qualifications relate
     1 15 directly to the medical problem or problems at issue
     1 16 and the type of treatment administered in the case,
     1 17 breach of the standard of care, or proximate cause if
     1 18 all of the following qualifications are established:
     1 19    1.  The expert is licensed to practice medicine,
     1 20 osteopathic medicine, or dentistry and in the three
     1 21 years preceding the allegedly negligent act, engaged
     1 22 in the active practice of medicine, osteopathic
     1 23 medicine, or dentistry, or was a qualified instructor
     1 24 at an accredited university of medicine and surgery,
     1 25 osteopathic medicine and surgery, or dentistry.
     1 26    2.  The expert practices in the same or
     1 27 substantially similar specialty as the defendant.
     1 28    3.  If the defendant is board certified in a
     1 29 specialty, the expert is also certified in that
     1 30 specialty by a board recognized by the American board
     1 31 of medical specialties and is licensed and in good
     1 32 standing in each state of licensure, and has not had
     1 33 the expert's license revoked or suspended in the past
     1 34 five years.
     1 35    Sec. 2.  NEW SECTION.  147.140  EVIDENCE OF REGRET
     1 36 OR APOLOGY.
     1 37    In any civil action for personal injury or wrongful
     1 38 death or in any arbitration proceeding relating to
     1 39 such a civil action against any physician or surgeon
     1 40 licensed pursuant to chapter 148, osteopathic
     1 41 physician or surgeon licensed pursuant to chapter
     1 42 150A, or dentist licensed pursuant to chapter 153,
     1 43 based upon the alleged negligence of the licensee in
     1 44 the practice of that profession or occupation, any
     1 45 statement, affirmation, gesture, or conduct expressing
     1 46 apology, sympathy, commiseration, condolence,
     1 47 compassion, or a general sense of benevolence that was
     1 48 made by a physician and surgeon, osteopathic physician
     1 49 and surgeon, or dentist to the patient, relative of
     1 50 the patient, or decision maker for the patient that
     2  1 relates to the discomfort, pain, suffering, injury, or
     2  2 death of the patient as a result of an unanticipated
     2  3 outcome of medical care is inadmissible as evidence of
     2  4 an admission of liability or as evidence of an
     2  5 admission against interest.
     2  6    Sec. 3.  NEW SECTION.  147.141  NOTICE OF CLAIM AND
     2  7 CERTIFICATE OF MERIT REQUIREMENT.
     2  8    1.  At least thirty days prior to filing a civil
     2  9 action for personal injury or wrongful death against a
     2 10 licensed health care provider, based upon the alleged
     2 11 negligence of the licensed health care provider in the
     2 12 practice of that profession, a plaintiff shall serve
     2 13 by certified mail, return receipt requested, a notice
     2 14 of claim upon the licensed health care provider.  The
     2 15 notice of claim shall include a statement of the
     2 16 theory of liability upon which the cause of action is
     2 17 based and include a list of all persons to whom
     2 18 notices have been sent, together with a certificate of
     2 19 merit, if necessary, as specified in subsection 2.
     2 20    2.  a.  The certificate of merit shall be signed
     2 21 under oath by an expert who, in the three years
     2 22 preceding the allegedly negligent act, either
     2 23 practiced or instructed in the same or substantially
     2 24 similar field of medicine as the defendant.
     2 25    b.  The certificate of merit shall contain
     2 26 information relating to all of the following:
     2 27    (1)  The expert's familiarity with the applicable
     2 28 standard of care.
     2 29    (2)  The expert's qualifications.
     2 30    (3)  The expert's statement that the appropriate
     2 31 standard of care was breached by the health care
     2 32 provider named in the complaint.
     2 33    (4)  The expert's statement of the actions that the
     2 34 health care provider should have taken or failed to
     2 35 take to have complied with the standard of care.
     2 36    (5)  A statement of the manner in which the breach
     2 37 of the standard of care was the cause of the injury
     2 38 alleged in the complaint.
     2 39    c.  A separate certificate of merit shall be
     2 40 completed for each defendant named in the notice of
     2 41 claim.
     2 42    d.  If a plaintiff or plaintiff's counsel asserts
     2 43 in good faith that the plaintiff has insufficient time
     2 44 to obtain a certificate of merit prior to the
     2 45 expiration of the period of limitation in subsection
     2 46 1, the plaintiff shall provide notice of intent to
     2 47 provide a certificate of merit to the defendant within
     2 48 sixty days of the date the defendant receives the
     2 49 notice of the claim.
     2 50    3.  Notwithstanding subsection 2, if a plaintiff
     3  1 believes that a certificate of merit is not necessary
     3  2 because the plaintiff's cause of action against a
     3  3 health care provider is based upon a well=established
     3  4 legal theory of liability which does not require
     3  5 expert testimony supporting a breach of the applicable
     3  6 standard of care, the plaintiff shall file a statement
     3  7 setting forth the basis for the alleged liability of
     3  8 the health care provider in lieu of the certificate of
     3  9 merit.
     3 10    4.  Except as otherwise provided in this section,
     3 11 the applicable statute of limitations in a civil cause
     3 12 of action against a health care provider upon whom a
     3 13 notice of claim is served pursuant to this section
     3 14 shall be tolled from the date the notice of claim is
     3 15 mailed.
     3 16    5.  If the plaintiff fails to provide a notice of
     3 17 claim and a certificate of merit, or a statement of
     3 18 the legal theory upon which the claim is based, the
     3 19 claim shall be dismissed with prejudice.
     3 20    6.  For purposes of this section, "health care
     3 21 provider" means a physician or surgeon, osteopath,
     3 22 osteopathic physician or surgeon, dentist, podiatric
     3 23 physician, optometrist, pharmacist, chiropractor, or
     3 24 nurse licensed in this state, a hospital licensed
     3 25 pursuant to chapter 135B, or a health care facility
     3 26 licensed pursuant to chapter 135C.>
     3 27 #2.  Title page, by striking lines 1 through 3 and
     3 28 inserting the following:  <An Act relating to medical
     3 29 malpractice actions.>
     3 30 #3.  By renumbering as necessary.
     3 31
     3 32
     3 33                               
     3 34 UPMEYER of Hancock
     3 35 HF 2716.701 81
     3 36 rh/gg/1365

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