House File 2189 - Introduced
HOUSE FILE
BY UPMEYER
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act creating a certificate of merit in a medical malpractice
2 action.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4 TLSB 5416YH 81
5 rh/je/5
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
1 22 there is a reasonable and meritorious case for the filing of
1 23 such 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. Where a certificate of merit is required pursuant to
2 17 this section, a separate certificate and expert report shall
2 18 be filed as to each defendant named in the complaint and shall
2 19 be 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 case in which the period of limitation
2 22 will expire or there is a good faith basis to believe it will
2 23 expire on a claim stated within ten days of the date of filing
2 24 and the plaintiff asserts in good faith that because of such
2 25 time constraints compliance with the requirements was not
2 26 possible. In such cases, the plaintiff shall have forty=five
2 27 days after the filing of the complaint to supplement the
2 28 pleadings with the certificate of merit and expert report.
2 29 5. If a certificate of merit is not filed within the
2 30 period specified in this section the complaint is subject to
2 31 dismissal for failure to state a claim upon which relief can
2 32 be granted.
2 33 6. If the plaintiff or the plaintiff's counsel files a
2 34 certificate of merit that does not meet the requirements of
2 35 subsection 1 or a report that does not meet the requirements
3 1 of subsection 2, the defendant to whom such certificate
3 2 pertains may file a motion to dismiss which shall specify the
3 3 grounds or basis by which the certificate or the report does
3 4 not meet the requirements of this section.
3 5 7. For the purposes of this section, "health care
3 6 provider" means a physician or surgeon, osteopath, osteopathic
3 7 physician and surgeon, dentist, podiatric physician,
3 8 optometrist, pharmacist, chiropractor, or nurse licensed to
3 9 practice that profession in this state, or a hospital licensed
3 10 for operation in this state.
3 11 EXPLANATION
3 12 This bill relates to the filing of a certificate of merit
3 13 in a medical malpractice action.
3 14 The bill provides that in an action for damages for
3 15 personal injury against a health care provider, defined as a
3 16 physician or surgeon, osteopath, osteopathic physician and
3 17 surgeon, dentist, podiatric physician, optometrist,
3 18 pharmacist, chiropractor, or nurse licensed to practice that
3 19 profession in this state, or a hospital licensed for operation
3 20 in this state, based on the alleged negligence of the licensee
3 21 in the practice of the profession or occupation, or upon the
3 22 alleged negligence of the hospital in patient care, the
3 23 plaintiff shall file, simultaneous with the filing of the
3 24 complaint, a certificate of merit. The certificate of merit
3 25 shall state that the plaintiff or plaintiff's attorney has
3 26 consulted and reviewed the facts of the case with an expert
3 27 who the plaintiff or the plaintiff's attorney reasonably
3 28 believes is knowledgeable regarding the relevant issues
3 29 involved in the particular action, that the expert is
3 30 qualified by knowledge, skill, experience, training, or
3 31 education to testify as an expert, and that the expert has no
3 32 financial or personal interest in the outcome of the case
3 33 under review.
3 34 The bill further provides that the certificate of merit
3 35 shall be submitted with a written report from the expert
4 1 stating there is a reasonable and meritorious case for the
4 2 filing of such action and shall include the name and address
4 3 of the expert and sufficient facts to support the conclusion
4 4 that the expert is qualified, a statement that the expert's
4 5 determination is based upon an examination of the plaintiff,
4 6 or an independent and thorough review of all of the applicable
4 7 medical records and, if reasonably available, a physical
4 8 examination of the plaintiff, a description of the appropriate
4 9 standard of care that is expected of a reasonably competent
4 10 health care provider in the same class to which the health
4 11 care provider belongs, acting in the same or similar
4 12 circumstances, a statement that in the opinion of the expert,
4 13 expressed with a reasonable degree of medical certainty, that
4 14 the appropriate standard of care was breached by the health
4 15 care provider named in the complaint, the factual basis for
4 16 the expert's opinion, a statement of the actions that the
4 17 health care provider should have taken or failed to take to
4 18 have complied with the standard of care, and a statement of
4 19 the manner in which the breach of the standard of care was the
4 20 cause of the injury alleged in the complaint.
4 21 The bill further provides that a separate certificate and
4 22 expert report shall be filed as to each defendant named in the
4 23 complaint.
4 24 The bill provides that the requirement that a plaintiff
4 25 file a certificate of merit with the filing of the complaint
4 26 in the action shall not apply to a case in which the period of
4 27 limitation will expire or there is a good faith basis to
4 28 believe it will expire on a claim stated within 10 days of the
4 29 date of filing and the plaintiff asserts in good faith that
4 30 because of such time constraints compliance with the
4 31 requirements was not possible. In such cases, the plaintiff
4 32 shall have 45 days after the filing of the complaint to
4 33 supplement the pleadings with the certificate of merit and
4 34 expert report.
4 35 The bill provides that if a certificate of merit is not
5 1 filed within the period specified in this bill, the complaint
5 2 is subject to dismissal for failure to state a claim upon
5 3 which relief can be granted.
5 4 The bill provides that if the plaintiff files a certificate
5 5 of merit or an accompanying report that does not meet the
5 6 requirements of the bill, the defendant to whom such
5 7 certificate pertains may file a motion to dismiss which shall
5 8 specify the grounds or basis by which the certificate does not
5 9 meet the requirements of the bill.
5 10 LSB 5416YH 81
5 11 rh:rj/je/5