HF 579 (LSB 1483HV (3) 85)

HOUSE FILE 579

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HSB 36)

A BILL FOR

An Act relating to medical malpractice actions including expert witness testimony, evidence-based medical practice guidelines, and medical malpractice review panels, and providing for fees.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 147.139, Code 2013, is amended to read as follows:
   147.139  Expert witness
 
testimony —— standards.
   1.  If the standard of care given by a physician and surgeon or an osteopathic physician and surgeon licensed pursuant to chapter 148, or a dentist licensed pursuant to chapter 153, is at issue, the court shall only allow a person to qualify as an expert witness and to testify on the issue of the appropriate standard of care if the person’s medical or dental qualifications relate directly to the medical problem or problems at issue and the type of treatment administered in the case., breach of the standard of care, or proximate cause if all of the following qualifications of the person are established:
   a.  The person is licensed to practice medicine, osteopathic medicine, or dentistry and in the five years preceding the allegedly negligent act, was engaged in the active practice of medicine, osteopathic medicine, or dentistry, or was a qualified instructor at an accredited university of medicine and surgery, osteopathic medicine and surgery, or dentistry.
   b.  The person practices or provides university instruction in the same or substantially similar specialty as the defendant.
   c.  If the defendant is board-certified in a specialty, the person is also certified in that specialty by a board recognized by the American board of medical specialties or the American osteopathic association and is licensed and in good standing in each state of licensure, and has not had the person’s license revoked or suspended in the past five years.
   2.  A person who is licensed in another state who testifies pursuant to this section as an expert against a defendant, whether in contract or tort arising out of the provision of or failure to provide care, shall be deemed to hold a temporary license to practice in this state for the purpose of providing such testimony and shall be subject to the authority of the applicable licensing board in this state including but not limited to section 147.55.
    Sec. 2.  NEW SECTION.  147.140  Medical malpractice review panels.
   1.  For the purpose of this section, “health care provider” means a physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse licensed pursuant to this chapter, a hospital licensed pursuant to chapter 135B, or a health care facility licensed pursuant to chapter 135C.
   2.
  a.  Upon the filing of any action for personal injury or wrongful death against any health care provider based upon the alleged negligence of the licensee in the practice of that profession or occupation, or upon the alleged negligence of the hospital or health care facility in patient care, and upon the filing of an answer thereto by all named defendants, the chief judge of the judicial district within which the action was filed shall convene a medical malpractice review panel to review the validity of the action.
   b.  Upon the convening of the medical malpractice review panel, all legal proceedings in the legal action filed with the district court shall be stayed until thirty days after the findings issued by the medical malpractice review panel.
   3.
  a.  The membership of the medical malpractice review panel shall consist of all of the following persons:
   (1)  An attorney licensed to practice law in this state and in good standing who primarily represents plaintiffs in personal injury actions.
   (2)  An attorney licensed to practice law in this state and in good standing who primarily represents defendants in personal injury actions.
   (3)  A health care practitioner licensed in this state and in good standing who practices in the specialty or profession of the person accused of negligence.
   (4)  If one of the defendants is a hospital or health care facility, a person familiar with hospital or health care administration.
   (5)  A lay person with no connection to any health care provider or insurance company.
   (6)  A nonvoting chairperson who is an attorney licensed to practice law in this state and in good standing, appointed by the chief judge of the judicial district within which the action was filed from a list of attorneys maintained by the district court or the chief judge of the judicial district for such selection purpose.
   b.  Within ten days of receipt of the notification of appointment as chairperson of the medical malpractice review panel, the chairperson shall appoint the members of the review panel for the particular medical malpractice claim to be heard.
   (1)  The department of public health and the board of nursing, board of medicine, dental board, and board of pharmacy shall maintain and make available to the chairperson of the review panel a current list of health care providers who are licensed in this state and in good standing to serve on the review panel. A health care provider’s license shall be revoked if the health care provider does not serve as a review panel member when so appointed, unless excused for good cause shown.
   (2)  The supreme court shall maintain a current list of attorneys who are licensed in this state and in good standing to serve on the review panel. An attorney’s license shall be revoked if the attorney does not serve as a review panel member when so appointed, unless excused for good cause shown.
   4.
  a.  Within thirty days of convening the medical malpractice review panel, a party to the proceedings shall produce to all other parties all medical and health care provider records within the possession or control of the party pertaining to the plaintiff regardless of whether the party believes such records are relevant to the proceedings.
   b.  The chairperson may permit reasonable discovery, and if so allowed, shall determine a timetable for any additional discovery prior to the hearing before the review panel. Depositions of persons other than the parties and experts designated by the parties shall not be taken except for good cause shown by the party requesting the deposition.
   c.  The chairperson shall have the power to issue subpoenas for both discovery and compulsion of testimony in the same manner and method as the district court.
   d.  The chairperson shall also determine a date on or before which the plaintiff must submit a certificate-of-merit affidavit as provided in subsection 5 for each expert the plaintiff intends to call as a witness to testify with respect to the issues of breach of the applicable standard of care or causation.
   5.
  a.  A plaintiff shall submit a separate certificate-of-merit affidavit for each defendant named in the action. The affidavit submitted for the defendant must be signed by the expert. The affidavit must certify the purpose for calling the expert by providing under the oath of the expert all of the following:
   (1)  The expert’s statement of familiarity with the applicable standard of care.
   (2)  The expert’s statement that the standard of care was breached by the health care provider named as the defendant.
   (3)  The expert’s statement of the actions that the health care provider failed to take or should have taken to comply with the standard of care.
   (4)  The expert’s statement of the manner by which the breach of the standard of care was the cause of the injury alleged in the petition.
   b.  If a plaintiff fails to submit a certificate-of-merit affidavit within the time determined by the chairperson, the chairperson shall file a motion with the district court to dismiss the plaintiff’s action with regard to the defendant for which the certificate-of-merit affidavit was not submitted. The district court shall then dismiss with prejudice the plaintiff’s action against the defendant.
   6.
  a.  The chairperson of the medical malpractice review panel shall hold a hearing of the full review panel to review the plaintiff’s claim and defendant’s defenses within six months from the date all members of the review panel were appointed, unless the time period has been extended by the chairperson for good cause shown by a requesting party. In no event shall any extension cause the hearing to occur more than one year after all review panel members were appointed.
   b.  Except as otherwise provided in this subsection, one combined hearing or hearings shall be held for all claims under this section arising out of the same action. If the action includes more than one defendant, the parties may, upon agreement of all parties, require that separate hearings be held for each defendant or group of defendants. The chairperson may, for good cause shown, order separate hearings.
   7.  At the hearing before the medical malpractice review panel, all parties who are natural persons shall be personally present and all entity parties shall have a representative present with responsibility for the subject matter that is the subject of the action. If a plaintiff fails to appear at the hearing, the chairperson shall file a motion with the district court to dismiss the plaintiff’s action with prejudice, and the court shall grant the motion. If the defendant fails to appear at the hearing, the defendant shall be precluded from presenting any evidence or making any presentation before the review panel or at any subsequent trial.
   8.  At the hearing before the medical malpractice review panel, the plaintiff shall present the plaintiff’s case to the review panel and each defendant shall present evidence in response to the plaintiff’s presentation. Wide latitude shall be afforded the parties in the conduct of the hearing including but not limited to the right of examination and cross-examination of witnesses by attorneys for the parties. Depositions shall be admissible regardless of whether the person deposed is available at the hearing. The Iowa rules of civil procedure shall not apply at the hearing, and evidence may be admitted if such evidence is evidence upon which reasonable persons are accustomed to rely. The chairperson shall make all procedural rulings and such rulings shall be binding and final. The hearing shall be recorded either electronically or with the assistance of a court reporter. The cost of recording the hearing shall be equally divided among the parties. The record of the proceedings and all documents presented as exhibits shall be confidential except in the following circumstances:
   a.  Any testimony or writings made under oath may be used in subsequent proceedings for purposes of impeachment.
   b.  The party who made a statement or presented evidence agrees to the submission, use, or disclosure of the statement or evidence.
   c.  The parties unanimously agree upon disclosure of any part of the record or proceedings.
   9.  Upon the conclusion of the hearing, the medical malpractice review panel may request from any party additional facts, records, or other information to be submitted in writing or at a continuation of the hearing. A continued hearing shall be held as soon as possible. A continued hearing shall be attended by the same review panel members and parties who attended the initial hearing, unless otherwise agreed to by all parties.
   10.  The medical malpractice review panel shall issue its findings in writing within thirty days of submission of all presentations and evidence.
   a.  The review panel’s findings shall contain answers to all of the following questions:
   (1)  Whether the acts or omissions complained of constitute a deviation from the applicable standard of care by the health care provider charged with such care.

   (2)  Whether the acts or omissions complained of proximately caused the injury complained of.
   (3)  If negligence on the part of a health care provider is found, whether any negligence on the part of the plaintiff was equal to or greater than the negligence of the health care provider.
   b.  The review panel shall make any affirmative finding by a preponderance of the evidence. 
   c.  With regard to each question, the review panel’s findings with regard to each question shall be determined by a majority of the panel members. The determination of the answer to any question by any individual review panel member shall be confidential and shall not be disclosed to any party or other member of the public. The findings shall reflect the number of review panel members making a determination of an answer in the affirmative and in making a determination of an answer in the negative. The findings, including the cumulative determinations in the affirmative and the negative for each answer, shall be signed by all review panel members, with each review panel member attesting that the written findings accurately reflect the determinations made.
   d.  The chairperson of the review panel shall serve the findings upon the parties within seven days of the date of the findings. The review panel’s written findings shall be preserved until thirty days after final judgment or the action is finally resolved after which time such findings shall be destroyed. All medical and health care provider records shall be returned to the party providing them to the review panel.
   e.  The deliberations and discussion of the review panel shall be privileged and confidential and a review panel member shall not be asked or compelled to testify at a later proceeding concerning the deliberations, discussions, or findings expressed during the review panel’s deliberations, except as such deliberation, discussion, or findings may be required to prove an allegation of intentional fraud. All review panel members and the chairperson shall be immune from liability as a result of participation in or serving as a review panel member, except for instances of intentional fraud.
   11.  The effect of the medical malpractice review panel’s findings shall be as follows:
   a.  The review panel’s findings are admissible as evidence in any subsequent action between the parties. 
   b.  If the review panel’s findings are unanimous and unfavorable to the plaintiff in such a manner as would not permit recovery by the plaintiff if the answers were made at trial, all of the following shall apply:
   (1)  If the action proceeds and results in a verdict and judgment for the defendant, the plaintiff shall be required to pay all expert witness fees and court costs incurred by the defendant.
   (2)  If the action proceeds and results in a verdict and judgment for the plaintiff, any noneconomic damages awarded to the plaintiff shall not exceed two hundred fifty thousand dollars.
   c.  If the review panel’s findings are unanimous and unfavorable to the defendant, allowing the plaintiff to recover based upon the defendant’s answers, all of the following shall apply:
   (1)  The defendant shall promptly admit liability or enter into negotiations to pay the plaintiff’s claim for damages.
   (2)  If liability is admitted, the claim may be resubmitted to the review panel upon agreement of the plaintiff and the defendant for a determination of damages. Any determination of damages by the review panel shall be admissible in any subsequent action.
   (3)  If liability is not admitted and the parties are not able to resolve the claim through settlement negotiations within thirty days after service of the review panel’s findings, the plaintiff may proceed with the action. If the plaintiff obtains a verdict or judgment in excess of the plaintiff’s last formal demand after the settlement negotiations following the review panel’s findings, the defendant shall be required to pay all expert witness fees and court costs incurred by the plaintiff.
   12.
  a.  Upon the appointment of all members of the review panel, each party shall pay to the clerk of the district court a filing fee of two hundred fifty dollars.
   b.  Any party may apply to the chairperson of the review panel for a waiver of the filing fee. The chairperson shall grant the waiver if the party is indigent.
   c.  Any party who is or was an employee of another party at the time of the claimed injury and was acting in the course and scope of employment with such other party shall not be required to pay a filing fee.
   d.  The review panel member who is a lay member shall be paid fifty dollars per day for each day spent participating in a hearing and for time spent deliberating a case. The other members of the review panel shall not receive compensation for their efforts, as service on a review panel shall be deemed a part of the privilege of professional licensure.
   e.  All review panel members shall be reimbursed for reasonable travel expenses incurred to participate in a hearing and deliberation of a case and such travel costs shall be divided equally among and paid by the parties.
    Sec. 3.  NEW SECTION.  622.31A  Evidence-based medical practice guidelines —— affirmative defense.
   1.  For purposes of this section:
   a.  “Evidence-based medical practice guidelines” means voluntary medical practice parameters or protocols established and released through a recognized physician consensus-building organization approved by the United States department of health and human services, through the American medical association’s physician consortium for performance improvement or similar activity, or through a recognized national medical specialty society.

   b.  “Health care provider” means a physician and surgeon, osteopathic physician and surgeon, physician assistant, or advanced registered nurse practitioner.
   2.  In any action for personal injury or wrongful death against any health care provider based upon the alleged negligence of the health care provider in patient care, the health care provider may assert, as an affirmative defense, that the health care provider complied with evidence-based medical practice guidelines in the diagnosis and treatment of a patient.
   3.  A judge may admit evidence-based medical practice guidelines into evidence if introduced only by a health care provider or by the health care provider’s employer and if the health care provider or the health care provider’s employer establishes foundational evidence in support of the evidence-based medical practice guidelines as well as evidence that the health care provider complied with the guidelines. Evidence of departure from an evidence-based medical practice guideline is admissible only on the issue of whether the health care provider is entitled to assert an affirmative defense.
   4.  This section shall not apply to any of the following:
   a.  A mistaken determination by the health care provider that the evidence-based medical practice guideline applied to a particular patient where such mistake is caused by the health care provider’s negligence or intentional misconduct. 
   b.  The health care provider’s failure to properly follow the evidence-based medical practice guideline where such failure is caused by the health care provider’s negligence or intentional misconduct. There shall be no presumption of negligence if a health care provider does not adhere to an evidence-based medical practice guideline.
EXPLANATION
   This bill relates to medical malpractice actions including expert witness testimony, evidence-based medical practice guidelines, and medical malpractice review panels and provides for fees.
   EXPERT WITNESS TESTIMONY STANDARDS. Under current law, if the standard of care given by a physician and surgeon, an osteopathic physician and surgeon, or a dentist is at issue, the court shall only allow a person to qualify as an expert witness and to testify on the issue of the appropriate standard of care if the person’s medical or dental qualifications relate directly to the medical problem or problems at issue and the type of treatment administered in the case. The bill amends this law to provide that an expert witness must meet certain professional practice and educational practice qualifications before testifying on the issue of the appropriate standard of care, breach of the standard of care, or proximate cause in such a case. In addition, a person who is licensed in another state who testifies as an expert against a defendant shall be deemed to hold a temporary license to practice in this state for the purpose of providing such testimony and is subject to the authority of the applicable licensing board in this state.
   MEDICAL MALPRACTICE REVIEW PANELS. The bill provides that in any personal injury or wrongful death action against any health care provider, hospital, or health care facility based upon negligence, and upon the filing of an answer by all defendants, the chief judge of the judicial district within which the action was filed is required to convene a medical malpractice review panel to review the validity of the action. Once convened, all legal proceedings in the action are stayed until 30 days after the medical review panel issues its findings in the case. “Health care provider” is defined as a licensed physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse, licensed hospital, or licensed health care facility.
   The bill provides for the appointment of the members of the medical review panel, including professional qualifications of the members, if applicable, and specific procedures for the selection of the review panel members.
   The bill provides that upon the appointment of all members of the review panel, each party is required to pay a filing fee of $250 which may be waived in some circumstances. A review panel member who is a lay member shall be paid $50 per day for each day spent participating in a hearing and for time spent deliberating a case. The other members of the review panel shall not receive compensation, however all review panel members shall be reimbursed for reasonable travel expenses.
   The bill provides that within 30 days of convening the medical malpractice review panel, a party to the proceedings is required to produce to all other parties all medical and health care provider records within the possession or control of the party pertaining to the plaintiff regardless of whether the party believes such records are relevant to the proceedings. The chairperson of the review panel may permit reasonable discovery, but depositions of persons other than the parties and experts designated by the parties shall not be taken except for good cause shown by the party requesting the deposition. The chairperson shall also have the power to issue subpoenas.
   The plaintiff is required to submit a separate certificate-of-merit affidavit for each defendant named in the action, signed by the expert, which must certify the purpose for calling the expert by providing under the oath of the expert certain specific criteria. If a plaintiff fails to submit a certificate-of-merit affidavit within the time period determined by the chairperson, upon the chairperson’s motion, the court is required to dismiss with prejudice the plaintiff’s action against the defendant.
   The chairperson of the medical malpractice review panel is required to hold a hearing of the full review panel to review the plaintiff’s claim and defendant’s defenses within six months from the date all members of the review panel were appointed, unless extended by the chairperson for good cause shown, not to exceed one year after all review panel members were appointed. If the action includes more than one defendant, the parties may, upon agreement of all parties, require that separate hearings be held for each defendant or group of defendants. 
   The bill provides specific provisions relating to the conduct of the hearing of the medical malpractice review panel including provisions relating to personal appearance by the parties and the presentation and admission of evidence. The hearing and exhibits are confidential except in certain circumstances. Upon the conclusion of the hearing, the review panel may request from any party additional facts, records, or other information to be submitted in writing or at a continuation of the hearing.
   The review panel is required to issue its findings in writing within 30 days of submission of all presentations and evidence and served upon the parties within seven days of the date of the findings. Such findings shall be determined by a majority of the review panel members, shall be determined based upon a preponderance of the evidence standard, shall contain certain answers relating to the acts or omissions of the health care provider, and shall be signed by all review panel members. The determination of the answer to any question by any individual review panel member shall be confidential and shall not be disclosed to any party or other member of the public. The review panel’s findings shall be preserved until 30 days after final judgment or the action is finally resolved after which time such findings shall be destroyed. All medical and health care provider records shall be returned to the party providing them to the review panel. The deliberations and discussion of the review panel shall be privileged and confidential. All review panel members and the chairperson shall be immune from liability as a result of participation in or serving as a review panel member, except for instances of intentional fraud.
   The medical malpractice review panel’s findings are admissible as evidence in any subsequent action between the parties. The bill specifies conditions under which each party may be responsible for witness fees and court costs. If the civil action proceeds to trial and results in a verdict and judgment for the plaintiff, any noneconomic damages are capped at $250,000.
   The bill provides that if the review panel’s findings are unanimous and unfavorable to the defendant, allowing the plaintiff to recover based upon the defendant’s answers, the defendant is required to promptly admit liability or enter into negotiations to pay the plaintiff’s claim for damages. If liability is admitted, the claim may be resubmitted to the review panel for a determination of damages and any determination of damages by the review panel shall be admissible in any subsequent action. If liability is not admitted and the parties cannot resolve the claim through settlement negotiations within 30 days after service of the review panel’s findings, the plaintiff is allowed to proceed with the action. 
   EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill provides that a judge may admit evidence-based medical practice guidelines into evidence if introduced only by a health care provider or by the health care provider’s employer and if the health care provider or the health care provider’s employer establishes foundational evidence in support of the evidence-based medical practice guidelines as well as evidence that the health care provider complied with the guidelines. Evidence of departure from an evidence-based medical practice guideline is admissible only on the issue of whether the health care provider is entitled to assert an affirmative defense. Evidence-based medical practice guidelines shall not be admitted into evidence where the health care provider mistakenly determined that the evidence-based medical practice guideline applied to a particular patient where such mistake was caused by the health care provider’s negligence or intentional misconduct or the health care provider failed to properly follow the evidence-based medical practice guideline where such failure was caused by the health care provider’s negligence or intentional misconduct. 
   “Evidence-based medical practice guidelines” means voluntary medical practice parameters or protocols established and released through a recognized physician consensus-building organization approved by the United States department of health and human services, through the American medical association’s physician consortium for performance improvement or similar activity, or through a recognized national medical specialty society. “Health care provider” means a physician and surgeon, osteopathic physician and surgeon, physician assistant, or advanced registered nurse practitioner.