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