H.F. 579 Section 1. Section 147.139, Code 2013, is amended to read 1 as follows: 2 147.139 Expert witness testimony —— standards. 3 1. If the standard of care given by a physician and surgeon 4 or an osteopathic physician and surgeon licensed pursuant 5 to chapter 148 , or a dentist licensed pursuant to chapter 6 153 , is at issue, the court shall only allow a person to 7 qualify as an expert witness and to testify on the issue of 8 the appropriate standard of care if the person’s medical or 9 dental qualifications relate directly to the medical problem 10 or problems at issue and the type of treatment administered 11 in the case. , breach of the standard of care, or proximate 12 cause if all of the following qualifications of the person are 13 established: 14 a. The person is licensed to practice medicine, osteopathic 15 medicine, or dentistry and in the five years preceding the 16 allegedly negligent act, was engaged in the active practice 17 of medicine, osteopathic medicine, or dentistry, or was a 18 qualified instructor at an accredited university of medicine 19 and surgery, osteopathic medicine and surgery, or dentistry. 20 b. The person practices or provides university instruction 21 in the same or substantially similar specialty as the 22 defendant. 23 c. If the defendant is board-certified in a specialty, 24 the person is also certified in that specialty by a board 25 recognized by the American board of medical specialties or 26 the American osteopathic association and is licensed and in 27 good standing in each state of licensure, and has not had the 28 person’s license revoked or suspended in the past five years. 29 2. A person who is licensed in another state who testifies 30 pursuant to this section as an expert against a defendant, 31 whether in contract or tort arising out of the provision of or 32 failure to provide care, shall be deemed to hold a temporary 33 license to practice in this state for the purpose of providing 34 such testimony and shall be subject to the authority of the 35 -1- LSB 1483HV (3) 85 rh/rj 1/ 15

H.F. 579 applicable licensing board in this state including but not 1 limited to section 147.55. 2 Sec. 2. NEW SECTION . 147.140 Medical malpractice review 3 panels. 4 1. For the purpose of this section, “health care provider” 5 means a physician and surgeon, osteopathic physician and 6 surgeon, dentist, podiatric physician, optometrist, pharmacist, 7 chiropractor, physician assistant, or nurse licensed pursuant 8 to this chapter, a hospital licensed pursuant to chapter 135B, 9 or a health care facility licensed pursuant to chapter 135C. 10 2. a. Upon the filing of any action for personal injury 11 or wrongful death against any health care provider based upon 12 the alleged negligence of the licensee in the practice of that 13 profession or occupation, or upon the alleged negligence of 14 the hospital or health care facility in patient care, and upon 15 the filing of an answer thereto by all named defendants, the 16 chief judge of the judicial district within which the action 17 was filed shall convene a medical malpractice review panel to 18 review the validity of the action. 19 b. Upon the convening of the medical malpractice review 20 panel, all legal proceedings in the legal action filed with 21 the district court shall be stayed until thirty days after the 22 findings issued by the medical malpractice review panel. 23 3. a. The membership of the medical malpractice review 24 panel shall consist of all of the following persons: 25 (1) An attorney licensed to practice law in this state 26 and in good standing who primarily represents plaintiffs in 27 personal injury actions. 28 (2) An attorney licensed to practice law in this state 29 and in good standing who primarily represents defendants in 30 personal injury actions. 31 (3) A health care practitioner licensed in this state and in 32 good standing who practices in the specialty or profession of 33 the person accused of negligence. 34 (4) If one of the defendants is a hospital or health care 35 -2- LSB 1483HV (3) 85 rh/rj 2/ 15

H.F. 579 facility, a person familiar with hospital or health care 1 administration. 2 (5) A lay person with no connection to any health care 3 provider or insurance company. 4 (6) A nonvoting chairperson who is an attorney licensed 5 to practice law in this state and in good standing, appointed 6 by the chief judge of the judicial district within which the 7 action was filed from a list of attorneys maintained by the 8 district court or the chief judge of the judicial district for 9 such selection purpose. 10 b. Within ten days of receipt of the notification of 11 appointment as chairperson of the medical malpractice review 12 panel, the chairperson shall appoint the members of the review 13 panel for the particular medical malpractice claim to be heard. 14 (1) The department of public health and the board of 15 nursing, board of medicine, dental board, and board of pharmacy 16 shall maintain and make available to the chairperson of the 17 review panel a current list of health care providers who are 18 licensed in this state and in good standing to serve on the 19 review panel. A health care provider’s license shall be 20 revoked if the health care provider does not serve as a review 21 panel member when so appointed, unless excused for good cause 22 shown. 23 (2) The supreme court shall maintain a current list of 24 attorneys who are licensed in this state and in good standing 25 to serve on the review panel. An attorney’s license shall be 26 revoked if the attorney does not serve as a review panel member 27 when so appointed, unless excused for good cause shown. 28 4. a. Within thirty days of convening the medical 29 malpractice review panel, a party to the proceedings shall 30 produce to all other parties all medical and health care 31 provider records within the possession or control of the party 32 pertaining to the plaintiff regardless of whether the party 33 believes such records are relevant to the proceedings. 34 b. The chairperson may permit reasonable discovery, and 35 -3- LSB 1483HV (3) 85 rh/rj 3/ 15

H.F. 579 if so allowed, shall determine a timetable for any additional 1 discovery prior to the hearing before the review panel. 2 Depositions of persons other than the parties and experts 3 designated by the parties shall not be taken except for good 4 cause shown by the party requesting the deposition. 5 c. The chairperson shall have the power to issue subpoenas 6 for both discovery and compulsion of testimony in the same 7 manner and method as the district court. 8 d. The chairperson shall also determine a date on or 9 before which the plaintiff must submit a certificate-of-merit 10 affidavit as provided in subsection 5 for each expert the 11 plaintiff intends to call as a witness to testify with respect 12 to the issues of breach of the applicable standard of care or 13 causation. 14 5. a. A plaintiff shall submit a separate 15 certificate-of-merit affidavit for each defendant named 16 in the action. The affidavit submitted for the defendant 17 must be signed by the expert. The affidavit must certify the 18 purpose for calling the expert by providing under the oath of 19 the expert all of the following: 20 (1) The expert’s statement of familiarity with the 21 applicable standard of care. 22 (2) The expert’s statement that the standard of care was 23 breached by the health care provider named as the defendant. 24 (3) The expert’s statement of the actions that the health 25 care provider failed to take or should have taken to comply 26 with the standard of care. 27 (4) The expert’s statement of the manner by which the breach 28 of the standard of care was the cause of the injury alleged in 29 the petition. 30 b. If a plaintiff fails to submit a certificate-of-merit 31 affidavit within the time determined by the chairperson, the 32 chairperson shall file a motion with the district court to 33 dismiss the plaintiff’s action with regard to the defendant for 34 which the certificate-of-merit affidavit was not submitted. 35 -4- LSB 1483HV (3) 85 rh/rj 4/ 15

H.F. 579 The district court shall then dismiss with prejudice the 1 plaintiff’s action against the defendant. 2 6. a. The chairperson of the medical malpractice review 3 panel shall hold a hearing of the full review panel to review 4 the plaintiff’s claim and defendant’s defenses within six 5 months from the date all members of the review panel were 6 appointed, unless the time period has been extended by the 7 chairperson for good cause shown by a requesting party. In no 8 event shall any extension cause the hearing to occur more than 9 one year after all review panel members were appointed. 10 b. Except as otherwise provided in this subsection, one 11 combined hearing or hearings shall be held for all claims 12 under this section arising out of the same action. If the 13 action includes more than one defendant, the parties may, 14 upon agreement of all parties, require that separate hearings 15 be held for each defendant or group of defendants. The 16 chairperson may, for good cause shown, order separate hearings. 17 7. At the hearing before the medical malpractice review 18 panel, all parties who are natural persons shall be personally 19 present and all entity parties shall have a representative 20 present with responsibility for the subject matter that is the 21 subject of the action. If a plaintiff fails to appear at the 22 hearing, the chairperson shall file a motion with the district 23 court to dismiss the plaintiff’s action with prejudice, and 24 the court shall grant the motion. If the defendant fails to 25 appear at the hearing, the defendant shall be precluded from 26 presenting any evidence or making any presentation before the 27 review panel or at any subsequent trial. 28 8. At the hearing before the medical malpractice review 29 panel, the plaintiff shall present the plaintiff’s case to 30 the review panel and each defendant shall present evidence 31 in response to the plaintiff’s presentation. Wide latitude 32 shall be afforded the parties in the conduct of the hearing 33 including but not limited to the right of examination and 34 cross-examination of witnesses by attorneys for the parties. 35 -5- LSB 1483HV (3) 85 rh/rj 5/ 15

H.F. 579 Depositions shall be admissible regardless of whether the 1 person deposed is available at the hearing. The Iowa rules of 2 civil procedure shall not apply at the hearing, and evidence 3 may be admitted if such evidence is evidence upon which 4 reasonable persons are accustomed to rely. The chairperson 5 shall make all procedural rulings and such rulings shall be 6 binding and final. The hearing shall be recorded either 7 electronically or with the assistance of a court reporter. The 8 cost of recording the hearing shall be equally divided among 9 the parties. The record of the proceedings and all documents 10 presented as exhibits shall be confidential except in the 11 following circumstances: 12 a. Any testimony or writings made under oath may be used in 13 subsequent proceedings for purposes of impeachment. 14 b. The party who made a statement or presented evidence 15 agrees to the submission, use, or disclosure of the statement 16 or evidence. 17 c. The parties unanimously agree upon disclosure of any part 18 of the record or proceedings. 19 9. Upon the conclusion of the hearing, the medical 20 malpractice review panel may request from any party additional 21 facts, records, or other information to be submitted in writing 22 or at a continuation of the hearing. A continued hearing 23 shall be held as soon as possible. A continued hearing shall 24 be attended by the same review panel members and parties who 25 attended the initial hearing, unless otherwise agreed to by all 26 parties. 27 10. The medical malpractice review panel shall issue its 28 findings in writing within thirty days of submission of all 29 presentations and evidence. 30 a. The review panel’s findings shall contain answers to all 31 of the following questions: 32 (1) Whether the acts or omissions complained of constitute 33 a deviation from the applicable standard of care by the health 34 care provider charged with such care. 35 -6- LSB 1483HV (3) 85 rh/rj 6/ 15

H.F. 579 (2) Whether the acts or omissions complained of proximately 1 caused the injury complained of. 2 (3) If negligence on the part of a health care provider 3 is found, whether any negligence on the part of the plaintiff 4 was equal to or greater than the negligence of the health care 5 provider. 6 b. The review panel shall make any affirmative finding by a 7 preponderance of the evidence. 8 c. With regard to each question, the review panel’s findings 9 with regard to each question shall be determined by a majority 10 of the panel members. The determination of the answer to 11 any question by any individual review panel member shall be 12 confidential and shall not be disclosed to any party or other 13 member of the public. The findings shall reflect the number 14 of review panel members making a determination of an answer 15 in the affirmative and in making a determination of an answer 16 in the negative. The findings, including the cumulative 17 determinations in the affirmative and the negative for each 18 answer, shall be signed by all review panel members, with 19 each review panel member attesting that the written findings 20 accurately reflect the determinations made. 21 d. The chairperson of the review panel shall serve the 22 findings upon the parties within seven days of the date of 23 the findings. The review panel’s written findings shall be 24 preserved until thirty days after final judgment or the action 25 is finally resolved after which time such findings shall be 26 destroyed. All medical and health care provider records shall 27 be returned to the party providing them to the review panel. 28 e. The deliberations and discussion of the review panel 29 shall be privileged and confidential and a review panel 30 member shall not be asked or compelled to testify at a later 31 proceeding concerning the deliberations, discussions, or 32 findings expressed during the review panel’s deliberations, 33 except as such deliberation, discussion, or findings may be 34 required to prove an allegation of intentional fraud. All 35 -7- LSB 1483HV (3) 85 rh/rj 7/ 15

H.F. 579 review panel members and the chairperson shall be immune from 1 liability as a result of participation in or serving as a 2 review panel member, except for instances of intentional fraud. 3 11. The effect of the medical malpractice review panel’s 4 findings shall be as follows: 5 a. The review panel’s findings are admissible as evidence in 6 any subsequent action between the parties. 7 b. If the review panel’s findings are unanimous and 8 unfavorable to the plaintiff in such a manner as would not 9 permit recovery by the plaintiff if the answers were made at 10 trial, all of the following shall apply: 11 (1) If the action proceeds and results in a verdict and 12 judgment for the defendant, the plaintiff shall be required to 13 pay all expert witness fees and court costs incurred by the 14 defendant. 15 (2) If the action proceeds and results in a verdict and 16 judgment for the plaintiff, any noneconomic damages awarded 17 to the plaintiff shall not exceed two hundred fifty thousand 18 dollars. 19 c. If the review panel’s findings are unanimous and 20 unfavorable to the defendant, allowing the plaintiff to recover 21 based upon the defendant’s answers, all of the following shall 22 apply: 23 (1) The defendant shall promptly admit liability or enter 24 into negotiations to pay the plaintiff’s claim for damages. 25 (2) If liability is admitted, the claim may be resubmitted 26 to the review panel upon agreement of the plaintiff and the 27 defendant for a determination of damages. Any determination 28 of damages by the review panel shall be admissible in any 29 subsequent action. 30 (3) If liability is not admitted and the parties are not 31 able to resolve the claim through settlement negotiations 32 within thirty days after service of the review panel’s 33 findings, the plaintiff may proceed with the action. If 34 the plaintiff obtains a verdict or judgment in excess of 35 -8- LSB 1483HV (3) 85 rh/rj 8/ 15

H.F. 579 the plaintiff’s last formal demand after the settlement 1 negotiations following the review panel’s findings, the 2 defendant shall be required to pay all expert witness fees and 3 court costs incurred by the plaintiff. 4 12. a. Upon the appointment of all members of the review 5 panel, each party shall pay to the clerk of the district court 6 a filing fee of two hundred fifty dollars. 7 b. Any party may apply to the chairperson of the review 8 panel for a waiver of the filing fee. The chairperson shall 9 grant the waiver if the party is indigent. 10 c. Any party who is or was an employee of another party at 11 the time of the claimed injury and was acting in the course and 12 scope of employment with such other party shall not be required 13 to pay a filing fee. 14 d. The review panel member who is a lay member shall be 15 paid fifty dollars per day for each day spent participating in 16 a hearing and for time spent deliberating a case. The other 17 members of the review panel shall not receive compensation for 18 their efforts, as service on a review panel shall be deemed a 19 part of the privilege of professional licensure. 20 e. All review panel members shall be reimbursed for 21 reasonable travel expenses incurred to participate in a hearing 22 and deliberation of a case and such travel costs shall be 23 divided equally among and paid by the parties. 24 Sec. 3. NEW SECTION . 622.31A Evidence-based medical 25 practice guidelines —— affirmative defense. 26 1. For purposes of this section: 27 a. “Evidence-based medical practice guidelines” means 28 voluntary medical practice parameters or protocols established 29 and released through a recognized physician consensus-building 30 organization approved by the United States department of health 31 and human services, through the American medical association’s 32 physician consortium for performance improvement or similar 33 activity, or through a recognized national medical specialty 34 society. 35 -9- LSB 1483HV (3) 85 rh/rj 9/ 15

H.F. 579 b. “Health care provider” means a physician and surgeon, 1 osteopathic physician and surgeon, physician assistant, or 2 advanced registered nurse practitioner. 3 2. In any action for personal injury or wrongful death 4 against any health care provider based upon the alleged 5 negligence of the health care provider in patient care, the 6 health care provider may assert, as an affirmative defense, 7 that the health care provider complied with evidence-based 8 medical practice guidelines in the diagnosis and treatment of 9 a patient. 10 3. A judge may admit evidence-based medical practice 11 guidelines into evidence if introduced only by a health 12 care provider or by the health care provider’s employer and 13 if the health care provider or the health care provider’s 14 employer establishes foundational evidence in support of the 15 evidence-based medical practice guidelines as well as evidence 16 that the health care provider complied with the guidelines. 17 Evidence of departure from an evidence-based medical practice 18 guideline is admissible only on the issue of whether the health 19 care provider is entitled to assert an affirmative defense. 20 4. This section shall not apply to any of the following: 21 a. A mistaken determination by the health care provider 22 that the evidence-based medical practice guideline applied to a 23 particular patient where such mistake is caused by the health 24 care provider’s negligence or intentional misconduct. 25 b. The health care provider’s failure to properly follow the 26 evidence-based medical practice guideline where such failure is 27 caused by the health care provider’s negligence or intentional 28 misconduct. There shall be no presumption of negligence if 29 a health care provider does not adhere to an evidence-based 30 medical practice guideline. 31 EXPLANATION 32 This bill relates to medical malpractice actions including 33 expert witness testimony, evidence-based medical practice 34 guidelines, and medical malpractice review panels and provides 35 -10- LSB 1483HV (3) 85 rh/rj 10/ 15

H.F. 579 for fees. 1 EXPERT WITNESS TESTIMONY STANDARDS. Under current law, 2 if the standard of care given by a physician and surgeon, an 3 osteopathic physician and surgeon, or a dentist is at issue, 4 the court shall only allow a person to qualify as an expert 5 witness and to testify on the issue of the appropriate standard 6 of care if the person’s medical or dental qualifications relate 7 directly to the medical problem or problems at issue and the 8 type of treatment administered in the case. The bill amends 9 this law to provide that an expert witness must meet certain 10 professional practice and educational practice qualifications 11 before testifying on the issue of the appropriate standard of 12 care, breach of the standard of care, or proximate cause in 13 such a case. In addition, a person who is licensed in another 14 state who testifies as an expert against a defendant shall be 15 deemed to hold a temporary license to practice in this state 16 for the purpose of providing such testimony and is subject to 17 the authority of the applicable licensing board in this state. 18 MEDICAL MALPRACTICE REVIEW PANELS. The bill provides 19 that in any personal injury or wrongful death action against 20 any health care provider, hospital, or health care facility 21 based upon negligence, and upon the filing of an answer by 22 all defendants, the chief judge of the judicial district 23 within which the action was filed is required to convene a 24 medical malpractice review panel to review the validity of the 25 action. Once convened, all legal proceedings in the action 26 are stayed until 30 days after the medical review panel issues 27 its findings in the case. “Health care provider” is defined 28 as a licensed physician and surgeon, osteopathic physician and 29 surgeon, dentist, podiatric physician, optometrist, pharmacist, 30 chiropractor, physician assistant, or nurse, licensed hospital, 31 or licensed health care facility. 32 The bill provides for the appointment of the members of the 33 medical review panel, including professional qualifications of 34 the members, if applicable, and specific procedures for the 35 -11- LSB 1483HV (3) 85 rh/rj 11/ 15

H.F. 579 selection of the review panel members. 1 The bill provides that upon the appointment of all members 2 of the review panel, each party is required to pay a filing fee 3 of $250 which may be waived in some circumstances. A review 4 panel member who is a lay member shall be paid $50 per day 5 for each day spent participating in a hearing and for time 6 spent deliberating a case. The other members of the review 7 panel shall not receive compensation, however all review panel 8 members shall be reimbursed for reasonable travel expenses. 9 The bill provides that within 30 days of convening the 10 medical malpractice review panel, a party to the proceedings is 11 required to produce to all other parties all medical and health 12 care provider records within the possession or control of the 13 party pertaining to the plaintiff regardless of whether the 14 party believes such records are relevant to the proceedings. 15 The chairperson of the review panel may permit reasonable 16 discovery, but depositions of persons other than the parties 17 and experts designated by the parties shall not be taken except 18 for good cause shown by the party requesting the deposition. 19 The chairperson shall also have the power to issue subpoenas. 20 The plaintiff is required to submit a separate 21 certificate-of-merit affidavit for each defendant named in the 22 action, signed by the expert, which must certify the purpose 23 for calling the expert by providing under the oath of the 24 expert certain specific criteria. If a plaintiff fails to 25 submit a certificate-of-merit affidavit within the time period 26 determined by the chairperson, upon the chairperson’s motion, 27 the court is required to dismiss with prejudice the plaintiff’s 28 action against the defendant. 29 The chairperson of the medical malpractice review panel 30 is required to hold a hearing of the full review panel to 31 review the plaintiff’s claim and defendant’s defenses within 32 six months from the date all members of the review panel 33 were appointed, unless extended by the chairperson for good 34 cause shown, not to exceed one year after all review panel 35 -12- LSB 1483HV (3) 85 rh/rj 12/ 15

H.F. 579 members were appointed. If the action includes more than one 1 defendant, the parties may, upon agreement of all parties, 2 require that separate hearings be held for each defendant or 3 group of defendants. 4 The bill provides specific provisions relating to the 5 conduct of the hearing of the medical malpractice review 6 panel including provisions relating to personal appearance by 7 the parties and the presentation and admission of evidence. 8 The hearing and exhibits are confidential except in certain 9 circumstances. Upon the conclusion of the hearing, the review 10 panel may request from any party additional facts, records, 11 or other information to be submitted in writing or at a 12 continuation of the hearing. 13 The review panel is required to issue its findings in writing 14 within 30 days of submission of all presentations and evidence 15 and served upon the parties within seven days of the date of 16 the findings. Such findings shall be determined by a majority 17 of the review panel members, shall be determined based upon a 18 preponderance of the evidence standard, shall contain certain 19 answers relating to the acts or omissions of the health care 20 provider, and shall be signed by all review panel members. The 21 determination of the answer to any question by any individual 22 review panel member shall be confidential and shall not be 23 disclosed to any party or other member of the public. The 24 review panel’s findings shall be preserved until 30 days after 25 final judgment or the action is finally resolved after which 26 time such findings shall be destroyed. All medical and health 27 care provider records shall be returned to the party providing 28 them to the review panel. The deliberations and discussion of 29 the review panel shall be privileged and confidential. All 30 review panel members and the chairperson shall be immune from 31 liability as a result of participation in or serving as a 32 review panel member, except for instances of intentional fraud. 33 The medical malpractice review panel’s findings are 34 admissible as evidence in any subsequent action between the 35 -13- LSB 1483HV (3) 85 rh/rj 13/ 15

H.F. 579 parties. The bill specifies conditions under which each party 1 may be responsible for witness fees and court costs. If the 2 civil action proceeds to trial and results in a verdict and 3 judgment for the plaintiff, any noneconomic damages are capped 4 at $250,000. 5 The bill provides that if the review panel’s findings 6 are unanimous and unfavorable to the defendant, allowing the 7 plaintiff to recover based upon the defendant’s answers, the 8 defendant is required to promptly admit liability or enter 9 into negotiations to pay the plaintiff’s claim for damages. 10 If liability is admitted, the claim may be resubmitted 11 to the review panel for a determination of damages and 12 any determination of damages by the review panel shall be 13 admissible in any subsequent action. If liability is not 14 admitted and the parties cannot resolve the claim through 15 settlement negotiations within 30 days after service of the 16 review panel’s findings, the plaintiff is allowed to proceed 17 with the action. 18 EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill 19 provides that a judge may admit evidence-based medical practice 20 guidelines into evidence if introduced only by a health 21 care provider or by the health care provider’s employer and 22 if the health care provider or the health care provider’s 23 employer establishes foundational evidence in support of the 24 evidence-based medical practice guidelines as well as evidence 25 that the health care provider complied with the guidelines. 26 Evidence of departure from an evidence-based medical practice 27 guideline is admissible only on the issue of whether the 28 health care provider is entitled to assert an affirmative 29 defense. Evidence-based medical practice guidelines shall 30 not be admitted into evidence where the health care provider 31 mistakenly determined that the evidence-based medical practice 32 guideline applied to a particular patient where such mistake 33 was caused by the health care provider’s negligence or 34 intentional misconduct or the health care provider failed to 35 -14- LSB 1483HV (3) 85 rh/rj 14/ 15

H.F. 579 properly follow the evidence-based medical practice guideline 1 where such failure was caused by the health care provider’s 2 negligence or intentional misconduct. 3 “Evidence-based medical practice guidelines” means voluntary 4 medical practice parameters or protocols established and 5 released through a recognized physician consensus-building 6 organization approved by the United States department of health 7 and human services, through the American medical association’s 8 physician consortium for performance improvement or similar 9 activity, or through a recognized national medical specialty 10 society. “Health care provider” means a physician and surgeon, 11 osteopathic physician and surgeon, physician assistant, or 12 advanced registered nurse practitioner. 13 -15- LSB 1483HV (3) 85 rh/rj 15/ 15