House File 305 - Introduced HOUSE FILE BY HEATON Passed House, Date Passed Senate, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to notice of claim and certificate of merit 2 requirements in a civil action for personal injury or death 3 against a health care provider. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 1457YH 82 6 rh/je/5 PAG LIN 1 1 Section 1. NEW SECTION. 147.140 NOTICE OF CLAIM AND 1 2 CERTIFICATE OF MERIT REQUIREMENT. 1 3 1. At least thirty days prior to filing a civil action for 1 4 personal injury or wrongful death against a licensed health 1 5 care provider, based upon the alleged negligence of the 1 6 licensed health care provider in the practice of that 1 7 profession, a plaintiff shall serve by certified mail, return 1 8 receipt requested, a notice of claim upon the licensed health 1 9 care provider. The notice of claim shall include a statement 1 10 of the theory of liability upon which the cause of action is 1 11 based and include a list of all persons to whom notices have 1 12 been sent, together with a certificate of merit, if necessary, 1 13 as specified in subsection 2. 1 14 2. a. The certificate of merit shall be signed under oath 1 15 by an expert who, in the three years preceding the allegedly 1 16 negligent act, either practiced or instructed in the same or 1 17 substantially similar field of medicine as the defendant. 1 18 b. The certificate of merit shall contain information 1 19 relating to all of the following: 1 20 (1) The expert's familiarity with the applicable standard 1 21 of care. 1 22 (2) The expert's qualifications. 1 23 (3) The expert's statement that the appropriate standard 1 24 of care was breached by the health care provider named in the 1 25 complaint. 1 26 (4) The expert's statement of the actions that the health 1 27 care provider should have taken or failed to take to have 1 28 complied with the standard of care. 1 29 (5) A statement of the manner in which the breach of the 1 30 standard of care was the cause of the injury alleged in the 1 31 complaint. 1 32 c. A separate certificate of merit shall be completed for 1 33 each defendant named in the notice of claim. 1 34 d. If a plaintiff or plaintiff's counsel asserts in good 1 35 faith that the plaintiff has insufficient time to obtain a 2 1 certificate of merit prior to the expiration of the period of 2 2 limitation in subsection 1, the plaintiff shall provide notice 2 3 of intent to provide a certificate of merit to the defendant 2 4 within sixty days of the date the defendant receives the 2 5 notice of the claim. 2 6 3. Notwithstanding subsection 2, if a plaintiff believes 2 7 that a certificate of merit is not necessary because the 2 8 plaintiff's cause of action against a health care provider is 2 9 based upon a well=established legal theory of liability which 2 10 does not require expert testimony supporting a breach of the 2 11 applicable standard of care, the plaintiff shall file a 2 12 statement setting forth the basis for the alleged liability of 2 13 the health care provider in lieu of the certificate of merit. 2 14 4. Except as otherwise provided in this section, the 2 15 applicable statute of limitations in a civil cause of action 2 16 against a health care provider upon whom a notice of claim is 2 17 served pursuant to this section shall be tolled from the date 2 18 the notice of claim is mailed. 2 19 5. If the plaintiff fails to provide a notice of claim and 2 20 a certificate of merit, or a statement of the legal theory 2 21 upon which the claim is based, the claim shall be dismissed 2 22 with prejudice. 2 23 6. For purposes of this section, "health care provider" 2 24 means a physician or surgeon, osteopath, osteopathic physician 2 25 or surgeon, dentist, podiatric physician, optometrist, 2 26 pharmacist, chiropractor, or nurse licensed in this state, a 2 27 hospital licensed pursuant to chapter 135B, or a health care 2 28 facility licensed pursuant to chapter 135C. 2 29 EXPLANATION 2 30 This bill relates to notice of claim and certificate of 2 31 merit requirements in a civil action for personal injury or 2 32 death against a health care provider. 2 33 The bill provides that at least 30 days prior to filing a 2 34 civil action for personal injury or wrongful death against a 2 35 health care provider, based upon the alleged negligence of the 3 1 licensed health care provider in the practice of that 3 2 profession, a plaintiff shall serve by certified mail, return 3 3 receipt requested, a notice of claim upon the licensed health 3 4 care provider. The notice of claim shall include a statement 3 5 of the theory of liability upon which the cause of action is 3 6 based and include a list of all persons to whom notices have 3 7 been sent, together with a certificate of merit. 3 8 The bill requires that the certificate of merit shall meet 3 9 certain requirements and specifies certain information that a 3 10 qualified expert who provides information in the certificate 3 11 of merit shall provide. The bill provides that a separate 3 12 certificate of merit shall be completed for each defendant 3 13 named in the complaint, and that if a plaintiff or plaintiff's 3 14 counsel asserts in good faith that the plaintiff has 3 15 insufficient time to obtain a certificate of merit prior to 3 16 the expiration of the 30=day limitation period, the plaintiff 3 17 shall provide notice of intent to provide a certificate of 3 18 merit to the defendant within 60 days of the date the 3 19 defendant receives the notice of the claim. If a plaintiff 3 20 believes that a certificate of merit is not necessary because 3 21 the plaintiff's cause of action against a health care provider 3 22 is based upon a well=established legal theory of liability 3 23 which does not require expert testimony supporting a breach of 3 24 the applicable standard of care, the plaintiff shall file a 3 25 statement setting forth the basis for the alleged liability of 3 26 the health care provider in lieu of the certificate of merit. 3 27 The bill further provides that the applicable statute of 3 28 limitations in a civil cause of action against a health care 3 29 provider upon whom a notice of claim is served shall be tolled 3 30 from the date the notice of claim is mailed. In addition, if 3 31 the plaintiff fails to provide a notice of claim and a 3 32 certificate of merit, or a statement of the legal theory upon 3 33 which the claim is based, the claim shall be dismissed with 3 34 prejudice. 3 35 For purposes of the bill, "health care provider" means a 4 1 physician or surgeon, osteopath, osteopathic physician or 4 2 surgeon, dentist, podiatric physician, optometrist, 4 3 pharmacist, chiropractor, or nurse licensed in Iowa, a 4 4 hospital licensed pursuant to Code chapter 135B, or a health 4 5 care facility licensed pursuant to Code chapter 135C. 4 6 LSB 1457YH 82 4 7 rh:nh/je/5