House File 490 H-1241 Amend House File 490 as follows: 1 < 1. By striking everything after the enacting 2 clause and inserting: 3 < Section 1. NEW SECTION . 147.140 Expert 4 certificate of merit affidavit —— health care providers 5 —— requirements. 6 1. For purposes of this section, “health care 7 provider” means a physician or surgeon, osteopathic 8 physician or surgeon, dentist, podiatric physician, 9 optometrist, pharmacist, chiropractor, physician 10 assistant, or nurse licensed in this state, a hospital 11 licensed pursuant to chapter 135B, or a health care 12 facility licensed pursuant to chapter 135C. 13 2. a. In any action for personal injury or 14 wrongful death against any health care provider 15 based upon the alleged negligence of the licensee 16 in the practice of that profession or occupation, 17 or upon the alleged negligence of the hospital or 18 health care facility in patient care, which includes 19 a cause of action for which expert testimony is 20 necessary to establish a prima facie case, the 21 plaintiff shall, within one hundred eighty days of 22 the defendant’s answer, serve upon the defendant an 23 expert’s certificate of merit affidavit for each expert 24 listed pursuant to section 668.11 who will testify with 25 respect to the issues of breach of standard of care or 26 causation. 27 b. Each certificate of merit affidavit must be 28 signed by the expert. The affidavit must certify the 29 purpose for calling the expert by providing under the 30 oath of the expert all of the following: 31 (1) The expert’s statement of familiarity with the 32 applicable standard of care. 33 (2) The expert’s statement that the standard of 34 care was breached by the health care provider named in 35 the petition. 36 (3) The expert’s statement of the actions that the 37 health care provider should have taken or failed to 38 take to have complied with the standard of care. 39 (4) The expert’s statement of the manner by which 40 the breach of the standard of care was the cause of the 41 injury alleged in the petition. 42 c. A plaintiff shall serve a separate affidavit on 43 each defendant named in the petition. 44 d. Answers to interrogatories may serve as an 45 expert’s certificate of merit affidavit in lieu of a 46 separately executed affidavit if the interrogatories 47 satisfy the requirements of this subsection and are 48 signed by the plaintiff’s attorney and by each expert 49 listed in the answers to interrogatories and served 50 -1- HF490.1297 (4) 84 rh/rj 1/ 3

upon the defendant within one hundred eighty days of 1 service of the defendant’s answer. 2 3. The expert’s certificate of merit affidavit does 3 not preclude either of the following: 4 a. Additional discovery or modification of the 5 affidavit based upon the newly discovered evidence. 6 b. The disclosure of additional witnesses pursuant 7 to section 668.11. 8 4. The parties by agreement may provide for 9 extensions of the time limits specified in subsection 10 2. 11 5. a. Failure to comply with subsection 2 shall, 12 upon motion, be the basis for mandatory dismissal with 13 prejudice of each cause of action as to which expert 14 testimony is necessary to establish a prima facie case. 15 b. Failure to comply with subsection 2 because 16 of deficiencies in the affidavit or answers to 17 interrogatories shall, upon motion, be the basis for 18 mandatory dismissal with prejudice of each cause of 19 action for which expert testimony is necessary to 20 establish a prima facie case. 21 c. The motion to dismiss shall state with 22 particularity each deficiency of the affidavit or 23 answers to interrogatories in order to allow the 24 plaintiff to cure the deficiency. 25 d. The plaintiff shall have twenty days to respond 26 to the motion and to cure the alleged deficiencies with 27 supplemental affidavits. 28 e. A party resisting a motion for mandatory 29 dismissal pursuant to this subsection shall have the 30 right to request a hearing on the motion. 31 6. A party required to provide a certificate of 32 merit affidavit may be granted additional time to 33 file the certificate for good cause shown and upon 34 application to the court. Good cause shall include all 35 of the following: 36 a. The inability to timely obtain plaintiff’s 37 medical records from medical providers when the records 38 have been requested prior to filing the action and not 39 produced. 40 b. The failure of the plaintiff to receive full 41 and complete responses to discovery requests from 42 a defendant within one hundred eighty days of a 43 defendant’s answer. 44 c. The inability to obtain a defendant’s deposition 45 after good faith efforts have been made to schedule 46 the deposition within one hundred eighty days of the 47 defendant’s answer. 48 d. Other good cause based upon the circumstances 49 beyond the control of the plaintiff. 50 -2- HF490.1297 (4) 84 rh/rj 2/ 3

7. A defendant shall serve upon the plaintiff a 1 counter certificate of merit affidavit for any defense 2 raised by the defendant from each expert identified by 3 the defendant within ninety days of the plaintiff’s 4 service of the certificate of merit affidavit or 5 service of answers to interrogatories stating the 6 opinion of the defendant’s expert with the same degree 7 of particularity required of the plaintiff under oath 8 containing all of the following: 9 a. The expert’s statement of familiarity with the 10 applicable standard of care. 11 b. The expert’s statement of the standard of care 12 required of the defendant and that the standard of care 13 was not breached by the health care provider named in 14 the petition. 15 c. The expert’s statement as to why the actions of 16 the health care provider complied with the standard of 17 care. 18 d. The expert’s statement as to why the alleged 19 breach of the standard of care was not the cause of the 20 injury alleged in the petition. 21 8. The plaintiff shall have the right to file a 22 motion to strike defendant’s expert identified by the 23 defendant pursuant to the same procedure provided for 24 in subsection 5, and the defendant shall be entitled to 25 the same process to respond to plaintiff’s motion as 26 provided in subsection 5. 27 9. If the plaintiff is acting pro se, the plaintiff 28 shall sign the affidavit or answers to interrogatories 29 referred to in this section and shall be bound by those 30 provisions as if represented by an attorney. > 31 2. Title page, by striking line 1 and inserting 32 < An Act providing for certificate of merit affidavit 33 requirements in a medical > 34 ______________________________ SWAIM of Davis -3- HF490.1297 (4) 84 rh/rj 3/ 3 #2.