S.F. _____ H.F. _____ Section 1. NEW SECTION . 147.140 Expert certificate of merit 1 affidavit —— health care providers —— requirements. 2 1. For purposes of this section and section 147.141, “health 3 care provider” means a physician and surgeon, osteopathic 4 physician and surgeon, dentist, podiatric physician, 5 optometrist, pharmacist, chiropractor, physician assistant, or 6 nurse licensed pursuant to this chapter, a hospital licensed 7 pursuant to chapter 135B, or a health care facility licensed 8 pursuant to chapter 135C. 9 2. a. In any action for personal injury or wrongful 10 death against any health care provider based upon the alleged 11 negligence of the licensee in the practice of that profession 12 or occupation, or upon the alleged negligence of the hospital 13 or health care facility in patient care, which includes a cause 14 of action for which expert testimony is necessary to establish 15 a prima facie case, the plaintiff shall, within one hundred 16 eighty days of the defendant’s answer, serve upon the defendant 17 an expert’s certificate of merit affidavit for each expert 18 listed pursuant to section 668.11 who will testify with respect 19 to the issues of breach of standard of care or causation. 20 b. A certificate of merit affidavit must be signed by the 21 expert. The affidavit must certify the purpose for calling the 22 expert by providing under the oath of the expert all of the 23 following: 24 (1) The expert’s statement of familiarity with the 25 applicable standard of care. 26 (2) The expert’s statement that the standard of care was 27 breached by the health care provider named in the petition. 28 (3) The expert’s statement of the actions that the health 29 care provider failed to take or should have taken to comply 30 with the standard of care. 31 (4) The expert’s statement of the manner by which the breach 32 of the standard of care was the cause of the injury alleged in 33 the petition. 34 c. A plaintiff shall serve a separate affidavit on each 35 -1- LSB 1483XL (4) 85 rh/rj 1/ 5

S.F. _____ H.F. _____ defendant named in the petition. 1 d. Answers to interrogatories may serve as an expert’s 2 certificate of merit affidavit in lieu of a separately executed 3 affidavit if the interrogatories satisfy the requirements of 4 this subsection and are signed by the plaintiff’s attorney and 5 by each expert listed in the answers to interrogatories and 6 served upon the defendant within one hundred eighty days of the 7 defendant’s answer. 8 3. The expert’s certificate of merit affidavit does not 9 preclude additional discovery and supplementation of the 10 expert’s opinions in accordance with the rules of civil 11 procedure. 12 4. The parties by agreement or the court for good cause 13 shown and in response to a motion filed prior to the expiration 14 of the time limits specified in subsection 2 may provide 15 for extensions of the time limits specified in subsection 16 2. Good cause shall include the inability to timely obtain 17 a plaintiff’s medical records from medical providers when 18 requested prior to filing the petition and not produced. 19 5. If the plaintiff is acting pro se, the plaintiff shall 20 sign the affidavit or answers to interrogatories referred to 21 in this section and shall be bound by those provisions as if 22 represented by an attorney. 23 6. a. Failure to comply with subsection 2 shall result, 24 upon motion, in dismissal with prejudice of each cause of 25 action as to which expert testimony is necessary to establish a 26 prima facie case. 27 b. A written notice of deficiency may be served upon the 28 plaintiff for failure to comply with subsection 2 because of 29 deficiencies in the affidavit or answers to interrogatories. 30 The notice shall state with particularity each deficiency of 31 the affidavit or answers to interrogatories. The plaintiff 32 shall have twenty days to cure the deficiency. Failure to 33 comply within the twenty days shall result, upon motion, in 34 mandatory dismissal with prejudice of each action as to which 35 -2- LSB 1483XL (4) 85 rh/rj 2/ 5

S.F. _____ H.F. _____ expert testimony is necessary to establish a prima facie case. 1 A party resisting a motion for mandatory dismissal pursuant to 2 this section shall have the right to request a hearing on the 3 motion. 4 Sec. 2. NEW SECTION . 147.141 Limitation on noneconomic 5 damages. 6 1. In any action for personal injury or wrongful death 7 against any health care provider as defined in section 147.140, 8 based upon the alleged negligence of the licensee in the 9 practice of that profession or occupation, or upon the alleged 10 negligence of the hospital or health care facility in patient 11 care, in which liability is admitted or established, an award 12 of noneconomic damages shall not exceed one million dollars. 13 2. For purposes of this section, "noneconomic damages" 14 means nonpecuniary losses that would not have occurred but 15 for the injury or death giving rise to the cause of action, 16 including pain and suffering, inconvenience, physical 17 impairment, mental anguish, loss of capacity for enjoyment of 18 life, and any other nonpecuniary losses. 19 EXPLANATION 20 This bill relates to certificate of merit affidavits and 21 noneconomic damages in medical malpractice actions. 22 CERTIFICATE OF MERIT AFFIDAVIT. The bill provides that 23 in any action for personal injury or wrongful death against 24 any health care provider (defined in the bill) based upon 25 negligence, which includes a cause of action for which expert 26 testimony is necessary to establish a prima facie case, the 27 plaintiff is required, within 180 days of the defendant’s 28 answer, to serve the defendant with an expert’s certificate 29 of merit affidavit for each expert listed who is expected to 30 testify with respect to the issues of breach of standard of 31 care or causation. 32 The bill provides that each certificate of merit affidavit 33 must be signed by the expert and include the expert’s statement 34 of familiarity with the applicable standard of care, the 35 -3- LSB 1483XL (4) 85 rh/rj 3/ 5

S.F. _____ H.F. _____ expert’s statement that the standard of care was breached by 1 the health care provider named in the petition, the expert’s 2 statement of the actions that the health care provider should 3 have taken or failed to take to have complied with the standard 4 of care, and the expert’s statement of the manner by which the 5 breach of the standard of care was the cause of the injury 6 alleged in the petition. 7 The bill provides that a plaintiff shall serve a separate 8 affidavit on each defendant named in the petition and that 9 answers to interrogatories may serve as an expert’s certificate 10 of merit affidavit in lieu of a separately executed affidavit 11 if the interrogatories satisfy the requirements previously 12 noted and are signed by the plaintiff’s attorney and by each 13 expert listed in the answers to interrogatories and served upon 14 the defendant within 180 days of the defendant’s answer. 15 The bill provides that a certificate of merit affidavit 16 does not preclude additional discovery and that the parties by 17 agreement or the court for good cause shown may provide for 18 extensions of the time limits provided in the bill. If the 19 plaintiff is acting pro se, the plaintiff is required to sign 20 the affidavit or answers to interrogatories and shall be bound 21 by those provisions as if represented by an attorney. 22 The bill provides that failure to comply with the 23 requirements of the bill shall result, upon motion, in 24 dismissal with prejudice of each cause of action as to which 25 expert testimony is necessary to establish a prima facie case. 26 A written notice of deficiency may be served upon the plaintiff 27 for failure to comply with the requirements of the bill because 28 of deficiencies in the affidavit or answers to interrogatories. 29 The plaintiff shall have 20 days to cure the deficiency and 30 failure to comply within the 20 days shall result, upon motion, 31 in mandatory dismissal with prejudice of each action as to 32 which expert testimony is necessary to establish a prima facie 33 case. A party resisting a motion for mandatory dismissal under 34 the bill has the right to request a hearing on the motion. 35 -4- LSB 1483XL (4) 85 rh/rj 4/ 5

S.F. _____ H.F. _____ NONECONOMIC DAMAGES. The bill provides that an award of 1 noneconomic damages in any action for personal injury or 2 wrongful death against any health care provider (defined in 3 the bill) based upon the alleged negligence of the licensee 4 in the practice of that profession or occupation, or upon the 5 alleged negligence of the hospital or health care facility in 6 patient care, in which liability is admitted or established, 7 shall not exceed $1 million. “Noneconomic damages” is defined 8 as nonpecuniary losses that would not have occurred but for the 9 injury or death giving rise to the cause of action, including 10 pain and suffering, inconvenience, physical impairment, mental 11 anguish, loss of capacity for enjoyment of life, and any other 12 nonpecuniary losses. 13 For purposes of the bill, “health care provider” means a 14 physician and surgeon, osteopathic physician and surgeon, 15 dentist, podiatric physician, optometrist, pharmacist, 16 chiropractor, physician assistant, or nurse licensed pursuant 17 to Code chapter 147, a hospital licensed pursuant to Code 18 chapter 135B, or a health care facility licensed pursuant to 19 Code chapter 135C. 20 -5- LSB 1483XL (4) 85 rh/rj 5/ 5