House File 2716 - Introduced
HOUSE FILE
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO HSB 676)
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to civil actions for personal injury or death,
2 including certain evidentiary, reporting, and procedural
3 requirements.
4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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PAG LIN
1 1 Section 1. NEW SECTION. 147.140 CONFIDENTIALITY OF
1 2 RECORDS.
1 3 In an action for damages for personal injury against a
1 4 physician and surgeon, osteopath, osteopathic physician and
1 5 surgeon, dentist, podiatric physician, optometrist,
1 6 pharmacist, chiropractor, or nurse licensed to practice that
1 7 profession in this state, or against a hospital licensed for
1 8 operation in this state, based on the alleged negligence of
1 9 the practitioner in the practice of the profession or
1 10 occupation, or upon the alleged negligence of the hospital in
1 11 patient care, the entire court file of such action shall be
1 12 sealed by the clerk of the district court until such time as
1 13 both parties to the action file a disclosure of expert
1 14 witnesses pursuant to section 668.11 or until two hundred days
1 15 have elapsed from the filing of the petition in the action,
1 16 whichever is longer. The court record shall remain
1 17 confidential if the action is dismissed by the court prior to
1 18 the disclosure of expert witnesses.
1 19 Sec. 2. NEW SECTION. 147.141 INITIAL DISCLOSURE OF
1 20 INFORMATION.
1 21 1. Unless otherwise stipulated or directed by the court,
1 22 in a civil action in which the condition of the plaintiff is
1 23 an element or factor of the claim or defense of the adverse
1 24 party or of any party claiming through or under the adverse
1 25 party, the adverse party shall, without awaiting a discovery
1 26 request, provide all of the following information to the other
1 27 parties:
1 28 a. The name and, if known, the address and telephone
1 29 number of each individual likely to have discoverable
1 30 information that the disclosing party may use to support its
1 31 claims or defenses, unless solely for impeachment, identifying
1 32 the subjects of the information.
1 33 b. A copy of, or a description by category and location
1 34 of, all documents, data compilations, and tangible things that
1 35 are in the possession, custody, or control of the disclosing
2 1 party and that the disclosing party may use to support its
2 2 claims or defenses, unless solely for impeachment.
2 3 c. A computation of any category of damages claimed by the
2 4 disclosing party made available for inspection and copying
2 5 pursuant to Iowa rules of civil procedure 1.512 and 1.513.
2 6 Such information shall include documents or other evidentiary
2 7 material, not privileged or protected from disclosure, on
2 8 which such computation is based, including materials bearing
2 9 on the nature and extent of injuries suffered.
2 10 d. Any insurance agreement under which an insurer may be
2 11 liable to satisfy part or all of a judgment which may be
2 12 entered in the action or to indemnify or reimburse for
2 13 payments made to satisfy the judgment.
2 14 2. The disclosures made pursuant to this section shall be
2 15 made at or within fourteen days after the answer to the
2 16 petition is filed unless a different time is set by
2 17 stipulation or court order, or unless a party objects to the
2 18 initial disclosures. In ruling on the objection, the court
2 19 shall determine what disclosures, if any, shall be made, and
2 20 set the time for disclosure.
2 21 3. A disclosing party shall make its initial disclosure
2 22 pursuant to this section based on the information then
2 23 reasonably available and is not excused from making a
2 24 disclosure because the disclosing party has not fully
2 25 completed its investigation of the case, because of the
2 26 sufficiency of another party's disclosures, or because another
2 27 party has not made its disclosures.
2 28 4. Unless the court orders otherwise, a disclosure made
2 29 pursuant to this section shall be in writing, signed, and
2 30 served in accordance with the rules of civil procedure.
2 31 Sec. 3. NEW SECTION. 147.142 CERTIFICATE OF MERIT
2 32 REQUIREMENT.
2 33 1. Within forty=five days after an initial disclosure of
2 34 information made pursuant to section 147.141, a plaintiff
2 35 shall serve a certificate of merit upon the licensed health
3 1 care provider.
3 2 2. a. The certificate of merit shall be signed under oath
3 3 by an expert qualified pursuant to section 147.139.
3 4 b. The certificate of merit shall contain information
3 5 relating to all of the following:
3 6 (1) The expert's familiarity with the applicable standard
3 7 of care.
3 8 (2) The expert's qualifications.
3 9 (3) The expert's statement that the appropriate standard
3 10 of care was breached by the health care provider named in the
3 11 complaint.
3 12 (4) The expert's statement of the actions that the health
3 13 care provider could have taken or failed to take to have
3 14 complied with the standard of care.
3 15 (5) A statement of the manner in which the breach of the
3 16 standard of care could have caused the injury alleged in the
3 17 complaint.
3 18 c. A separate certificate of merit shall be completed for
3 19 each defendant.
3 20 3. Notwithstanding subsection 2, if a plaintiff believes
3 21 in good faith that a certificate of merit is not necessary
3 22 because the plaintiff's cause of action against a health care
3 23 provider is based upon a well=established legal theory of
3 24 liability which does not require expert testimony supporting a
3 25 breach of the applicable standard of care, the plaintiff shall
3 26 file a statement setting forth the basis for the alleged
3 27 liability of the health care provider in lieu of the
3 28 certificate of merit.
3 29 4. If the plaintiff fails to provide a certificate of
3 30 merit or a statement of the legal theory upon which the claim
3 31 is based, the claim shall be dismissed.
3 32 5. The provisions of this section requiring the provisions
3 33 of a certificate of merit or a statement of the legal theory
3 34 upon which a claim is based apply to a defendant asserting an
3 35 affirmative defense.
4 1 6. For purposes of this section, "health care provider"
4 2 means a physician or surgeon, osteopath, osteopathic physician
4 3 or surgeon, dentist, podiatric physician, optometrist,
4 4 pharmacist, chiropractor, or nurse licensed in this state, a
4 5 hospital licensed pursuant to chapter 135B, or a health care
4 6 facility licensed pursuant to chapter 135C.
4 7 Sec. 4. Section 515F.4, subsection 5, Code 2005, is
4 8 amended to read as follows:
4 9 5. The rates may contain a provision for contingencies and
4 10 an allowance permitting a reasonable profit. In determining
4 11 the reasonableness of the profit, consideration shall be given
4 12 to investment income attributable to unearned premium and loss
4 13 reserves. Income from other sources shall not be considered.
4 14 Sec. 5. Section 614.1, subsection 9, Code 2005, is amended
4 15 to read as follows:
4 16 9. MALPRACTICE.
4 17 a. Except as provided in paragraph paragraphs "b" and "c",
4 18 those founded on injuries to the person or wrongful death
4 19 against any physician and surgeon, osteopath, osteopathic
4 20 physician and surgeon, dentist, podiatric physician,
4 21 optometrist, pharmacist, chiropractor, physician assistant, or
4 22 nurse, licensed under chapter 147, or a hospital licensed
4 23 under chapter 135B, arising out of patient care, within two
4 24 years after the date on which the claimant knew, or through
4 25 the use of reasonable diligence should have known, or received
4 26 notice in writing of the existence of, the injury or death for
4 27 which damages are sought in the action, whichever of the dates
4 28 occurs first, but in no event shall any action be brought more
4 29 than six years after the date on which occurred the act or
4 30 omission or occurrence alleged in the action to have been the
4 31 cause of the injury or death unless a foreign object
4 32 unintentionally left in the body caused the injury or death.
4 33 b. An action subject to paragraph "a" and brought on
4 34 behalf of a minor who was under the age of eight years when
4 35 the act, omission, or occurrence alleged in the action
5 1 occurred shall be commenced no later than the minor's tenth
5 2 birthday or as provided in paragraph "a", whichever is later.
5 3 c. The statutes of limitation specified in paragraphs "a"
5 4 and "b" may be tolled by written agreement of the parties.
5 5 Sec. 6. NEW SECTION. 622.31 EVIDENCE OF REGRET OR
5 6 APOLOGY.
5 7 In any civil action for personal injury or wrongful death
5 8 or in any arbitration proceeding relating to such a civil
5 9 action against a person in a profession represented by the
5 10 examining boards listed in section 272C.1 and any other
5 11 licensed profession recognized in this state based upon the
5 12 alleged negligence in the practice of that profession or
5 13 occupation, any statement, affirmation, gesture, or conduct
5 14 expressing apology, sympathy, commiseration, condolence,
5 15 compassion, or a general sense of benevolence that was made by
5 16 the person to the plaintiff, relative of the plaintiff, or
5 17 decision maker for the plaintiff that relates to the
5 18 discomfort, pain, suffering, injury, or death of the plaintiff
5 19 as a result of an alleged breach of the applicable standard of
5 20 care is inadmissible as evidence of an admission of liability
5 21 or as evidence of an admission against interest.
5 22 Sec. 7. CLOSED=CLAIM STUDY. The commissioner of insurance
5 23 shall conduct a closed=claim study on all medical malpractice
5 24 insurance closed claims reported by an insurer providing
5 25 medical malpractice insurance coverage to a health care
5 26 provider or a health care provider who maintains professional
5 27 liability insurance through a self=insurance plan during the
5 28 preceding calendar year. The study shall include but not be
5 29 limited to the number of claims filed by medical specialty and
5 30 the outcome of such claims, including whether such claims were
5 31 dismissed, settled, or tried in court. The study shall also
5 32 include information relating to the insurance rates charged
5 33 per medical specialty in relation to the number of closed
5 34 claims that occurred during the applicable payout period.
5 35 The commissioner shall report the findings of the study to
6 1 the general assembly and the chairpersons of the senate and
6 2 house of representatives committees on judiciary, commerce,
6 3 and commerce, regulation and labor no later than January 15,
6 4 2007. The commissioner's report shall be open to the public,
6 5 except that any identifying information shall remain
6 6 confidential.
6 7 EXPLANATION
6 8 This bill relates to civil actions for personal injury or
6 9 death, including certain evidentiary, reporting, and
6 10 procedural requirements.
6 11 CONFIDENTIALITY OF MEDICAL RECORDS. The bill provides that
6 12 in a civil action for damages for personal injury against a
6 13 physician and surgeon, osteopath, osteopathic physician and
6 14 surgeon, dentist, podiatric physician, optometrist,
6 15 pharmacist, chiropractor, or nurse licensed to practice in
6 16 this state, or against a hospital licensed for operation in
6 17 this state, the entire court file of the action shall be
6 18 sealed by the clerk of court until both parties to the action
6 19 have filed a disclosure of expert witnesses or until 200 days
6 20 have elapsed from the filing of the petition in the action,
6 21 whichever is longer. The court record shall remain
6 22 confidential if the action is dismissed by the court prior to
6 23 the disclosure of expert witnesses.
6 24 INITIAL DISCLOSURE OF INFORMATION. The bill provides that
6 25 in a civil action in which the condition of the plaintiff is
6 26 an element or factor of the claim or defense of the adverse
6 27 party, the adverse party shall, without awaiting a discovery
6 28 request, provide all of the following information to the other
6 29 parties at or within 14 days after the answer to the petition
6 30 is filed unless otherwise required by the court:
6 31 1. The name and, if known, address and telephone number of
6 32 each individual likely to have discoverable information that
6 33 the disclosing party may use to support its claims or
6 34 defenses, unless solely for impeachment, identifying the
6 35 subjects of the information.
7 1 2. A copy of, or a description by category and location
7 2 of, all documents, data compilations, and tangible things in
7 3 the possession, custody, or control of the disclosing party
7 4 that may be used to support the disclosing party's claims or
7 5 defenses, unless solely for impeachment.
7 6 3. A computation of any category of damages claimed by the
7 7 disclosing party to include documents or other evidentiary
7 8 material, not privileged or protected from disclosure, on
7 9 which such computation is based, including materials relating
7 10 to the nature and extent of the injuries suffered.
7 11 4. Any insurance agreement under which an insurer may be
7 12 liable.
7 13 A disclosure required under this bill shall be in writing,
7 14 signed, and served in accordance with the rules of civil
7 15 procedure.
7 16 CERTIFICATE OF MERIT. The bill provides that within 45
7 17 days after an initial disclosure of information pursuant to
7 18 the bill, a plaintiff shall serve a certificate of merit upon
7 19 a licensed health care provider in a personal injury action.
7 20 The certificate of merit shall be signed under oath by a
7 21 qualified expert pursuant to Code section 147.139 and shall
7 22 contain information relating to the expert's familiarity with
7 23 the applicable standard of care, the expert's qualifications,
7 24 the expert's statement that the applicable standard of care
7 25 was breached by the health care provider, the expert's
7 26 statement of the actions that the health care provider could
7 27 have taken or failed to take to have complied with the
7 28 standard of care, and a statement of the manner in which the
7 29 breach of the standard of care could have caused the injury
7 30 alleged in the complaint. The bill provides that if a
7 31 plaintiff believes in good faith that a certificate of merit
7 32 is not necessary because the plaintiff's case against the
7 33 health care provider is based upon a well=established theory
7 34 of liability which does not require expert testimony, the
7 35 plaintiff may file such a statement in lieu of the certificate
8 1 of merit. The bill provides that if a plaintiff fails to
8 2 provide a certificate of merit or a statement of the legal
8 3 theory upon which the claim is based, the claim shall be
8 4 dismissed. The provisions relating to a certificate of merit
8 5 or a statement of the legal theory upon which the claim is
8 6 based apply to a defendant asserting an affirmative defense.
8 7 "Health care provider" means a physician or surgeon,
8 8 osteopath, osteopathic physician or surgeon, dentist,
8 9 podiatric physician, optometrist, pharmacist, chiropractor, or
8 10 nurse licensed in this state, a hospital licensed pursuant to
8 11 Code chapter 125B, or a health care facility licensed pursuant
8 12 to Code chapter 135C.
8 13 INSURANCE RATEMAKING. The bill provides that in
8 14 determining what a reasonable profit is during the ratemaking
8 15 process, the commissioner of insurance may consider income
8 16 from sources other than investment income attributable to
8 17 unearned premium loss reserves.
8 18 STATUTES OF LIMITATION. Current law provides that a
8 19 medical malpractice lawsuit for either personal injury or
8 20 death may be brought within two years after the date on which
8 21 the claimant knew or should have known of the injury or death,
8 22 but not more than six years after the date upon which the act
8 23 occurred, unless the action involved a foreign object that was
8 24 retained in the body or the action involved a minor or
8 25 mentally ill person. The bill allows the parties in a medical
8 26 malpractice action to toll the applicable statute of
8 27 limitation by written agreement.
8 28 EVIDENCE OF REGRET OR APOLOGY. The bill provides that in
8 29 any action for personal injury or wrongful death or in any
8 30 arbitration proceeding relating to such a civil action against
8 31 a person in a profession represented by the examining boards
8 32 listed in Code section 272C.1 or any other licensed profession
8 33 in this state, any statement, affirmation, gesture, or conduct
8 34 expressing apology, sympathy, commiseration, condolence,
8 35 compassion, or a general sense of benevolence that was made by
9 1 the person to the plaintiff, relative of the plaintiff, or
9 2 decision maker for the plaintiff that relates to the
9 3 discomfort, pain, suffering, injury, or death of the plaintiff
9 4 as a result of the breach of the standard of care is
9 5 inadmissible as evidence of an admission of liability or as
9 6 evidence of an admission against interest.
9 7 CLOSED=CLAIM STUDY. The bill directs the commissioner of
9 8 insurance to conduct a closed=claim study on all medical
9 9 malpractice insurance closed claims reported by an insurer
9 10 providing medical malpractice insurance to a health care
9 11 provider or a health care provider who maintains professional
9 12 liability insurance through a self=insurance plan during the
9 13 preceding calendar year, and to report to the general assembly
9 14 and the chairpersons of the senate and house of
9 15 representatives committees on judiciary, commerce, and
9 16 commerce, regulation and labor no later than January 15, 2007.
9 17 The study shall include information on the number of claims
9 18 filed by medical specialty and the outcome of such claims,
9 19 including whether such claims were dismissed, settled, or
9 20 tried in court, and information relating to the insurance
9 21 rates charged per medical specialty in relation to the number
9 22 of closed claims that occurred during the applicable payout
9 23 period. The commissioner's report shall be open to the
9 24 public, except that any identifying information shall remain
9 25 confidential.
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