House Study Bill 27 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON COMMERCE BILL BY CHAIRPERSON SODERBERG) A BILL FOR An Act creating a certificate of merit in a medical malpractice 1 action. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1406YC (1) 84 rh/rj
H.F. _____ Section 1. NEW SECTION . 147.140 Certificate of merit. 1 1. In an action for damages for personal injury against a 2 health care provider licensed to practice or operate in this 3 state, based on the alleged negligence of the licensee in the 4 practice of the profession or occupation, or upon the alleged 5 negligence of the hospital in patient care, the plaintiff 6 shall file, simultaneous with the filing of the complaint, a 7 certificate of merit attesting to the following: 8 a. The plaintiff or plaintiff’s attorney has consulted and 9 reviewed the facts of the case with an expert who the plaintiff 10 or the plaintiff’s attorney reasonably believes meets the 11 following requirements: 12 (1) The expert is knowledgeable regarding the relevant 13 issues involved in the particular action. 14 (2) The expert is qualified by knowledge, skill, 15 experience, training, or education to testify as an expert 16 in the field of the alleged malpractice pursuant to section 17 147.139. 18 (3) The expert has no financial or personal interest in the 19 outcome of the case under review. 20 b. The expert has determined in a written report that there 21 is a reasonable and meritorious case for the filing of such 22 action. 23 2. The written report from the expert shall be attached 24 to the certificate of merit and shall contain all of the 25 following: 26 a. The name and address of the expert and sufficient facts 27 to support the conclusion that the expert is qualified by 28 knowledge, skill, experience, training, or education to testify 29 as an expert against the health care provider. 30 b. A statement that the expert’s determination is based upon 31 an examination of the plaintiff, or an independent and thorough 32 review of all of the applicable medical records and, if 33 reasonably available, a physical examination of the plaintiff. 34 c. A description of the appropriate standard of care that is 35 -1- LSB 1406YC (1) 84 rh/rj 1/ 5
H.F. _____ expected of a reasonably competent health care provider in the 1 same class to which the health care provider belongs, acting in 2 the same or similar circumstances. 3 d. In the opinion of the expert, expressed with a reasonable 4 degree of medical certainty, that the appropriate standard of 5 care was breached by the health care provider named in the 6 complaint. 7 e. The factual basis for the expert’s opinion. 8 f. A statement of the actions that the health care provider 9 should have taken or failed to take to have complied with the 10 standard of care. 11 g. A statement of the manner in which the breach of the 12 standard of care was the cause of the injury alleged in the 13 complaint. 14 3. Where a certificate of merit is required pursuant to 15 this section, a separate certificate and expert report shall be 16 filed as to each defendant named in the complaint and shall be 17 filed as to each defendant named at a later time. 18 4. The contemporaneous filing requirement of subsection 1 19 shall not apply to a case in which the period of limitation 20 will expire or there is a good faith basis to believe it will 21 expire on a claim stated within ten days of the date of filing 22 and the plaintiff asserts in good faith that because of such 23 time constraints compliance with the requirements was not 24 possible. In such cases, the plaintiff shall have forty-five 25 days after the filing of the complaint to supplement the 26 pleadings with the certificate of merit and expert report. 27 5. If a certificate of merit is not filed within the period 28 specified in this section the complaint is subject to dismissal 29 for failure to state a claim upon which relief can be granted. 30 6. If the plaintiff or the plaintiff’s counsel files a 31 certificate of merit that does not meet the requirements of 32 subsection 1 or a report that does not meet the requirements of 33 subsection 2, the defendant to whom such certificate pertains 34 may file a motion to dismiss which shall specify the grounds or 35 -2- LSB 1406YC (1) 84 rh/rj 2/ 5
H.F. _____ basis by which the certificate or the report does not meet the 1 requirements of this section. 2 7. For the purposes of this section, “health care provider” 3 means a physician or surgeon, osteopath, osteopathic physician 4 and surgeon, dentist, podiatric physician, optometrist, 5 pharmacist, chiropractor, or nurse licensed to practice that 6 profession in this state, or a hospital licensed for operation 7 in this state. 8 EXPLANATION 9 This bill relates to the filing of a certificate of merit in 10 a medical malpractice action. 11 The bill provides that in an action for damages for 12 personal injury against a health care provider, defined as a 13 physician or surgeon, osteopath, osteopathic physician and 14 surgeon, dentist, podiatric physician, optometrist, pharmacist, 15 chiropractor, or nurse licensed to practice that profession in 16 this state, or a hospital licensed for operation in this state, 17 based on the alleged negligence of the licensee in the practice 18 of the profession or occupation, or upon the alleged negligence 19 of the hospital in patient care, the plaintiff shall file, 20 simultaneous with the filing of the complaint, a certificate of 21 merit. The certificate of merit shall state that the plaintiff 22 or plaintiff’s attorney has consulted and reviewed the facts of 23 the case with an expert who the plaintiff or the plaintiff’s 24 attorney reasonably believes is knowledgeable regarding the 25 relevant issues involved in the particular action, that the 26 expert is qualified by knowledge, skill, experience, training, 27 or education to testify as an expert, and that the expert has 28 no financial or personal interest in the outcome of the case 29 under review. 30 The bill further provides that the certificate of merit 31 shall be submitted with a written report from the expert 32 stating there is a reasonable and meritorious case for the 33 filing of such action and shall include the name and address 34 of the expert and sufficient facts to support the conclusion 35 -3- LSB 1406YC (1) 84 rh/rj 3/ 5
H.F. _____ that the expert is qualified, a statement that the expert’s 1 determination is based upon an examination of the plaintiff, 2 or an independent and thorough review of all of the applicable 3 medical records and, if reasonably available, a physical 4 examination of the plaintiff, a description of the appropriate 5 standard of care that is expected of a reasonably competent 6 health care provider in the same class to which the health care 7 provider belongs, acting in the same or similar circumstances, 8 a statement that in the opinion of the expert, expressed with a 9 reasonable degree of medical certainty, that the appropriate 10 standard of care was breached by the health care provider named 11 in the complaint, the factual basis for the expert’s opinion, a 12 statement of the actions that the health care provider should 13 have taken or failed to take to have complied with the standard 14 of care, and a statement of the manner in which the breach of 15 the standard of care was the cause of the injury alleged in the 16 complaint. 17 The bill further provides that a separate certificate and 18 expert report shall be filed as to each defendant named in the 19 complaint. 20 The bill provides that the requirement that a plaintiff 21 file a certificate of merit with the filing of the complaint 22 in the action shall not apply to a case in which the period 23 of limitation will expire or there is a good faith basis to 24 believe it will expire on a claim stated within 10 days of 25 the date of filing and the plaintiff asserts in good faith 26 that because of such time constraints compliance with the 27 requirements was not possible. In such cases, the plaintiff 28 shall have 45 days after the filing of the complaint to 29 supplement the pleadings with the certificate of merit and 30 expert report. 31 The bill provides that if a certificate of merit is not filed 32 within the period specified in this bill, the complaint is 33 subject to dismissal for failure to state a claim upon which 34 relief can be granted. 35 -4- LSB 1406YC (1) 84 rh/rj 4/ 5
H.F. _____ The bill provides that if the plaintiff files a certificate 1 of merit or an accompanying report that does not meet 2 the requirements of the bill, the defendant to whom such 3 certificate pertains may file a motion to dismiss which shall 4 specify the grounds or basis by which the certificate does not 5 meet the requirements of the bill. 6 -5- LSB 1406YC (1) 84 rh/rj 5/ 5