S.F. 2099 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 5661XS (4) 85 rh/rj 1/ 6

S.F. 2099 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 is 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 28 period specified in this section, the complaint is subject to 29 dismissal for failure to state a claim upon which relief can 30 be granted. 31 6. If the plaintiff or the plaintiff’s attorney files a 32 certificate of merit that does not meet the requirements of 33 subsection 1 or a report that does not meet the requirements of 34 subsection 2, the defendant to whom such certificate pertains 35 -2- LSB 5661XS (4) 85 rh/rj 2/ 6

S.F. 2099 may file a motion to dismiss which shall specify the grounds or 1 basis by which the certificate or the report does not meet the 2 requirements of this section. 3 7. For the purposes of this section, “health care provider” 4 means a physician and surgeon, osteopath, osteopathic physician 5 and surgeon, dentist, podiatric physician, optometrist, 6 pharmacist, chiropractor, or nurse licensed to practice that 7 profession in this state, or a hospital licensed for operation 8 in this state. 9 Sec. 2. NEW SECTION . 147.141 Limitation on noneconomic 10 damages. 11 1. In an action for personal injury or wrongful death 12 against a physician and surgeon, osteopath, osteopathic 13 physician and surgeon, dentist, podiatric physician, 14 optometrist, pharmacist, chiropractor, or nurse licensed 15 under this chapter, based on the alleged negligence of the 16 practitioner in the practice of that profession or occupation, 17 or against a hospital licensed under chapter 135B, based on the 18 alleged negligence of the hospital in patient care, in which 19 liability is admitted or established, an award of noneconomic 20 damages shall not exceed five hundred thousand dollars. 21 2. For purposes of this section, “noneconomic damages” means 22 nonpecuniary losses that would not have occurred but for the 23 injury or death giving rise to the cause of action, including 24 pain and suffering, inconvenience, physical impairment, mental 25 anguish, loss of capacity for enjoyment of life, and any other 26 nonpecuniary losses. 27 EXPLANATION 28 The inclusion of this explanation does not constitute agreement with 29 the explanation’s substance by the members of the general assembly. 30 This bill relates to certificates of merit and noneconomic 31 damages in medical malpractice actions. 32 CERTIFICATE OF MERIT. The bill provides that in an action 33 for damages for personal injury against a health care provider, 34 defined as a physician and surgeon, osteopath, osteopathic 35 -3- LSB 5661XS (4) 85 rh/rj 3/ 6

S.F. 2099 physician and surgeon, dentist, podiatric physician, 1 optometrist, pharmacist, chiropractor, or nurse licensed to 2 practice that profession in this state, or a hospital licensed 3 for operation in this state, based on the alleged negligence of 4 the licensee in the practice of the profession or occupation, 5 or upon the alleged negligence of the hospital in patient care, 6 the plaintiff shall file, simultaneous with the filing of the 7 complaint, a certificate of merit. The certificate of merit 8 shall state that the plaintiff or plaintiff’s attorney has 9 consulted and reviewed the facts of the case with an expert who 10 the plaintiff or the plaintiff’s attorney reasonably believes 11 is knowledgeable regarding the relevant issues involved in the 12 particular action, that the expert is qualified by knowledge, 13 skill, experience, training, or education to testify as an 14 expert, and that the expert has no financial or personal 15 interest in the outcome of the case under review. 16 The bill further provides that the certificate of merit 17 shall be submitted with a written report from the expert 18 stating there is a reasonable and meritorious case for the 19 filing of such action and shall include the name and address 20 of the expert and sufficient facts to support the conclusion 21 that the expert is qualified, a statement that the expert’s 22 determination is based upon an examination of the plaintiff, 23 or an independent and thorough review of all of the applicable 24 medical records and, if reasonably available, a physical 25 examination of the plaintiff, a description of the appropriate 26 standard of care that is expected of a reasonably competent 27 health care provider in the same class to which the health care 28 provider belongs, acting in the same or similar circumstances, 29 a statement that in the opinion of the expert, expressed with a 30 reasonable degree of medical certainty, that the appropriate 31 standard of care was breached by the health care provider named 32 in the complaint, the factual basis for the expert’s opinion, a 33 statement of the actions that the health care provider should 34 have taken or failed to take to have complied with the standard 35 -4- LSB 5661XS (4) 85 rh/rj 4/ 6

S.F. 2099 of care, and a statement of the manner in which the breach of 1 the standard of care was the cause of the injury alleged in the 2 complaint. 3 The bill further provides that a separate certificate and 4 expert report shall be filed as to each defendant named in the 5 complaint. 6 The bill provides that the requirement that a plaintiff 7 file a certificate of merit with the filing of the complaint 8 in the action shall not apply to a case in which the period 9 of limitation will expire or there is a good faith basis to 10 believe it will expire on a claim stated within 10 days of 11 the date of filing and the plaintiff asserts in good faith 12 that because of such time constraints compliance with the 13 requirements is not possible. In such cases, the plaintiff 14 shall have 45 days after the filing of the complaint to 15 supplement the pleadings with the certificate of merit and 16 expert report. 17 The bill provides that if a certificate of merit is not filed 18 within the period specified in this bill, the complaint is 19 subject to dismissal for failure to state a claim upon which 20 relief can be granted. 21 The bill provides that if the plaintiff files a certificate 22 of merit or an accompanying report that does not meet 23 the requirements of the bill, the defendant to whom such 24 certificate pertains may file a motion to dismiss which shall 25 specify the grounds or basis by which the certificate does not 26 meet the requirements of the bill. 27 NONECONOMIC DAMAGES. The bill provides that an award 28 of noneconomic damages in an action for personal injury or 29 wrongful death against a physician and surgeon, osteopathic 30 physician and surgeon, dentist, podiatric physician, 31 optometrist, pharmacist, chiropractor, or nurse licensed under 32 Code chapter 147, based on the alleged negligence of the 33 practitioner in the practice of that profession or occupation, 34 or against a hospital licensed under Code chapter 135B, based 35 -5- LSB 5661XS (4) 85 rh/rj 5/ 6

S.F. 2099 on the alleged negligence of the hospital in patient care, in 1 which liability is admitted or established, shall not exceed 2 $500,000. “Noneconomic damages” is defined as nonpecuniary 3 losses that would not have occurred but for the injury giving 4 rise to the cause of action, including pain and suffering, 5 inconvenience, physical impairment, mental anguish, loss of 6 capacity for enjoyment of life, and any other nonpecuniary 7 losses. 8 -6- LSB 5661XS (4) 85 rh/rj 6/ 6