House File 2133 - Introduced
HOUSE FILE
BY HUTTER
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to the filing of a certificate of merit in a
2 medical malpractice action.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4 TLSB 5209HH 81
5 rh/gg/14
PAG LIN
1 1 Section 1. NEW SECTION. 147.140 CERTIFICATE OF MERIT.
1 2 1. In an action for damages for personal injury against a
1 3 health care provider licensed to practice or operate in this
1 4 state, based on the alleged negligence of the licensee in the
1 5 practice of the profession or occupation, or upon the alleged
1 6 negligence of the hospital in patient care, the plaintiff
1 7 shall file, simultaneous with the filing of the complaint, a
1 8 certificate of merit attesting to the following:
1 9 a. The plaintiff or plaintiff's attorney has consulted and
1 10 reviewed the facts of the case with an expert who the
1 11 plaintiff or the plaintiff's attorney reasonably believes
1 12 meets the following requirements:
1 13 (1) The expert is knowledgeable regarding the relevant
1 14 issues involved in the particular action.
1 15 (2) The expert is qualified by knowledge, skill,
1 16 experience, training, or education to testify as an expert in
1 17 the field of the alleged malpractice pursuant to section
1 18 147.139.
1 19 (3) The expert has no financial or personal interest in
1 20 the outcome of the case under review.
1 21 b. The expert has determined in a written report that a
1 22 reasonable and meritorious case exists for the filing of such
1 23 action.
1 24 2. The written report from the expert shall be attached to
1 25 the certificate of merit and shall contain all of the
1 26 following:
1 27 a. The name and address of the expert and sufficient facts
1 28 to support the conclusion that the expert is qualified by
1 29 knowledge, skill, experience, training, or education to
1 30 testify as an expert against the health care provider.
1 31 b. A statement that the expert's determination is based
1 32 upon an examination of the plaintiff, or an independent and
1 33 thorough review of all of the applicable medical records and,
1 34 if reasonably available, a physical examination of the
1 35 plaintiff.
2 1 c. A description of the appropriate standard of care that
2 2 is expected of a reasonably competent health care provider in
2 3 the same class to which the health care provider belongs,
2 4 acting in the same or similar circumstances.
2 5 d. In the opinion of the expert, expressed with a
2 6 reasonable degree of medical certainty, that the appropriate
2 7 standard of care was breached by the health care provider
2 8 named in the complaint.
2 9 e. The factual basis for the expert's opinion.
2 10 f. A statement of the actions that the health care
2 11 provider should have taken or failed to take to have complied
2 12 with the standard of care.
2 13 g. A statement of the manner in which the breach of the
2 14 standard of care was the cause of the injury alleged in the
2 15 complaint.
2 16 3. If a certificate of merit is required pursuant to this
2 17 section, a separate certificate and expert report shall be
2 18 filed as to each defendant named in the complaint and shall be
2 19 filed as to each defendant named at a later time.
2 20 4. The contemporaneous filing requirement of subsection 1
2 21 shall not apply to a personal injury case, for which the
2 22 period of limitation will expire or where there is a good
2 23 faith basis to believe the period of limitation will expire,
2 24 within ten days of the date of filing of the complaint and the
2 25 plaintiff asserts in good faith that because of such time
2 26 constraints compliance with the requirements was not possible.
2 27 In such cases, the plaintiff shall have forty=five days after
2 28 the filing of the complaint to supplement the pleadings with
2 29 the certificate of merit and expert report.
2 30 5. If a certificate of merit is not filed within the
2 31 period specified in this section, the complaint is subject to
2 32 dismissal for failure to state a claim upon which relief can
2 33 be granted.
2 34 6. If the plaintiff or the plaintiff's counsel files a
2 35 certificate of merit that does not meet the requirements of
3 1 subsection 1 or a report that does not meet the requirements
3 2 of subsection 2, the defendant to whom such certificate
3 3 pertains may file a motion to dismiss which shall specify the
3 4 grounds or basis by which the certificate or the report does
3 5 not meet the requirements of this section.
3 6 7. For the purposes of this section, "health care
3 7 provider" means a physician or surgeon, osteopath, osteopathic
3 8 physician or surgeon, dentist, podiatric physician,
3 9 optometrist, pharmacist, chiropractor, or nurse licensed to
3 10 practice that profession in this state, or a hospital licensed
3 11 for operation in this state.
3 12 EXPLANATION
3 13 This bill relates to the filing of a certificate of merit
3 14 in a medical malpractice action.
3 15 The bill provides that in an action for damages for
3 16 personal injury against a health care provider, defined as a
3 17 physician or surgeon, osteopath, osteopathic physician or
3 18 surgeon, dentist, podiatric physician, optometrist,
3 19 pharmacist, chiropractor, or nurse licensed to practice that
3 20 profession in this state, or a hospital licensed for operation
3 21 in this state, based on the alleged negligence of the licensee
3 22 in the practice of the profession or occupation, or upon the
3 23 alleged negligence of the hospital in patient care, the
3 24 plaintiff shall file, simultaneous with the filing of the
3 25 complaint, a certificate of merit. The certificate of merit
3 26 shall state that the plaintiff or plaintiff's attorney has
3 27 consulted and reviewed the facts of the case with an expert
3 28 who the plaintiff or the plaintiff's attorney reasonably
3 29 believes is knowledgeable regarding the relevant issues
3 30 involved in the particular action; that the expert is
3 31 qualified by knowledge, skill, experience, training, or
3 32 education to testify as an expert; and that the expert has no
3 33 financial or personal interest in the outcome of the case
3 34 under review.
3 35 The bill further provides that the certificate of merit
4 1 shall be submitted with a written report from the expert
4 2 stating there is a reasonable and meritorious case for the
4 3 filing of such action and shall include the name and address
4 4 of the expert and sufficient facts to support the conclusion
4 5 that the expert is qualified; a statement that the expert's
4 6 determination is based upon an examination of the plaintiff,
4 7 or an independent and thorough review of all of the applicable
4 8 medical records and, if reasonably available, a physical
4 9 examination of the plaintiff; a description of the appropriate
4 10 standard of care that is expected of a reasonably competent
4 11 health care provider in the same class to which the health
4 12 care provider belongs, acting in the same or similar
4 13 circumstances; a statement that in the opinion of the expert,
4 14 expressed with a reasonable degree of medical certainty, that
4 15 the appropriate standard of care was breached by the health
4 16 care provider named in the complaint; the factual basis for
4 17 the expert's opinion; a statement of the actions that the
4 18 health care provider should have taken or failed to take to
4 19 have complied with the standard of care; and a statement of
4 20 the manner in which the breach of the standard of care was the
4 21 cause of the injury alleged in the complaint.
4 22 The bill further provides that a separate certificate and
4 23 expert report shall be filed as to each defendant named in the
4 24 complaint.
4 25 The bill provides that the requirement that a plaintiff
4 26 file a certificate of merit with the filing of the complaint
4 27 in the action shall not apply to a case in which the period of
4 28 limitation will expire, or there is a good faith basis to
4 29 believe the period of limitation will expire within 10 days of
4 30 the date of filing of the complaint and the plaintiff asserts
4 31 in good faith that because of such time constraints compliance
4 32 with the requirements was not possible. In such cases, the
4 33 plaintiff shall have 45 days after the filing of the complaint
4 34 to supplement the pleadings with the certificate of merit and
4 35 expert report.
5 1 The bill provides that if a certificate of merit is not
5 2 filed within the period specified in the bill, the complaint
5 3 is subject to dismissal for failure to state a claim upon
5 4 which relief can be granted.
5 5 The bill provides that if the plaintiff files a certificate
5 6 of merit or an accompanying report that does not meet the
5 7 requirements of the bill, the defendant to whom such
5 8 certificate pertains may file a motion to dismiss which shall
5 9 specify the grounds or basis by which the certificate does not
5 10 meet the requirements of this section.
5 11 LSB 5209HH 81
5 12 rh:rj/gg/14