SF 2099 (LSB 5661XS (4) 85)

SENATE FILE 2099

BY  ERNST

A BILL FOR

An Act relating to certificates of merit and noneconomic damages in medical malpractice actions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  147.140  Certificate of merit.
   1.  In an action for damages for personal injury against a health care provider licensed to practice or operate in this state, based on the alleged negligence of the licensee in the practice of the profession or occupation, or upon the alleged negligence of the hospital in patient care, the plaintiff shall file, simultaneous with the filing of the complaint, a certificate of merit attesting to the following:
   a.  The plaintiff or plaintiff’s attorney has consulted and reviewed the facts of the case with an expert who the plaintiff or the plaintiff’s attorney reasonably believes meets the following requirements:
   (1)  The expert is knowledgeable regarding the relevant issues involved in the particular action.
   (2)  The expert is qualified by knowledge, skill, experience, training, or education to testify as an expert in the field of the alleged malpractice pursuant to section 147.139.
   (3)  The expert has no financial or personal interest in the outcome of the case under review.
   b.  The expert has determined in a written report that there is a reasonable and meritorious case for the filing of such action.
   2.  The written report from the expert shall be attached to the certificate of merit and shall contain all of the following:
   a.  The name and address of the expert and sufficient facts to support the conclusion that the expert is qualified by knowledge, skill, experience, training, or education to testify as an expert against the health care provider.
   b.  A statement that the expert’s determination is based upon an examination of the plaintiff, or an independent and thorough review of all of the applicable medical records and, if reasonably available, a physical examination of the plaintiff.
   c.  A description of the appropriate standard of care that is expected of a reasonably competent health care provider in the same class to which the health care provider belongs, acting in the same or similar circumstances.
   d.  In the opinion of the expert, expressed with a reasonable degree of medical certainty, that the appropriate standard of care was breached by the health care provider named in the complaint.
   e.  The factual basis for the expert’s opinion.
   f.  A statement of the actions that the health care provider should have taken or failed to take to have complied with the standard of care.
   g.  A statement of the manner in which the breach of the standard of care was the cause of the injury alleged in the complaint.
   3.  Where a certificate of merit is required pursuant to this section, a separate certificate and expert report shall be filed as to each defendant named in the complaint and shall be filed as to each defendant named at a later time.
   4.  The contemporaneous filing requirement of subsection 1 shall not apply to a case in which the period of limitation will expire or there is a good faith basis to believe it will expire on a claim stated within ten days of the date of filing and the plaintiff asserts in good faith that because of such time constraints compliance with the requirements is not possible. In such cases, the plaintiff shall have forty-five days after the filing of the complaint to supplement the pleadings with the certificate of merit and expert report.
   5.  If a certificate of merit is not filed within the period specified in this section, the complaint is subject to dismissal for failure to state a claim upon which relief can be granted.
   6.  If the plaintiff or the plaintiff’s attorney files a certificate of merit that does not meet the requirements of subsection 1 or a report that does not meet the requirements of subsection 2, the defendant to whom such certificate pertains may file a motion to dismiss which shall specify the grounds or basis by which the certificate or the report does not meet the requirements of this section.
   7.  For the purposes of this section, “health care provider” means a physician and surgeon, osteopath, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, or nurse licensed to practice that profession in this state, or a hospital licensed for operation in this state.
    Sec. 2.  NEW SECTION.  147.141  Limitation on noneconomic damages.  
   1.  In an action for personal injury or wrongful death against a physician and surgeon, osteopath, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, or nurse licensed under this chapter, based on the alleged negligence of the practitioner in the practice of that profession or occupation, or against a hospital licensed under chapter 135B, based on the alleged negligence of the hospital in patient care, in which liability is admitted or established, an award of noneconomic damages shall not exceed five hundred thousand dollars.
   2.  For purposes of this section, “noneconomic damages” means nonpecuniary losses that would not have occurred but for the injury or death giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, loss of capacity for enjoyment of life, and any other nonpecuniary losses.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to certificates of merit and noneconomic damages in medical malpractice actions.
   CERTIFICATE OF MERIT. The bill provides that in an action for damages for personal injury against a health care provider, defined as a physician and surgeon, osteopath, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, or nurse licensed to practice that profession in this state, or a hospital licensed for operation in this state, based on the alleged negligence of the licensee in the practice of the profession or occupation, or upon the alleged negligence of the hospital in patient care, the plaintiff shall file, simultaneous with the filing of the complaint, a certificate of merit. The certificate of merit shall state that the plaintiff or plaintiff’s attorney has consulted and reviewed the facts of the case with an expert who the plaintiff or the plaintiff’s attorney reasonably believes is knowledgeable regarding the relevant issues involved in the particular action, that the expert is qualified by knowledge, skill, experience, training, or education to testify as an expert, and that the expert has no financial or personal interest in the outcome of the case under review.
   The bill further provides that the certificate of merit shall be submitted with a written report from the expert stating there is a reasonable and meritorious case for the filing of such action and shall include the name and address of the expert and sufficient facts to support the conclusion that the expert is qualified, a statement that the expert’s determination is based upon an examination of the plaintiff, or an independent and thorough review of all of the applicable medical records and, if reasonably available, a physical examination of the plaintiff, a description of the appropriate standard of care that is expected of a reasonably competent health care provider in the same class to which the health care provider belongs, acting in the same or similar circumstances, a statement that in the opinion of the expert, expressed with a reasonable degree of medical certainty, that the appropriate standard of care was breached by the health care provider named in the complaint, the factual basis for the expert’s opinion, a statement of the actions that the health care provider should have taken or failed to take to have complied with the standard of care, and a statement of the manner in which the breach of the standard of care was the cause of the injury alleged in the complaint.
   The bill further provides that a separate certificate and expert report shall be filed as to each defendant named in the complaint.
   The bill provides that the requirement that a plaintiff file a certificate of merit with the filing of the complaint in the action shall not apply to a case in which the period of limitation will expire or there is a good faith basis to believe it will expire on a claim stated within 10 days of the date of filing and the plaintiff asserts in good faith that because of such time constraints compliance with the requirements is not possible. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the certificate of merit and expert report.
   The bill provides that if a certificate of merit is not filed within the period specified in this bill, the complaint is subject to dismissal for failure to state a claim upon which relief can be granted.
   The bill provides that if the plaintiff files a certificate of merit or an accompanying report that does not meet the requirements of the bill, the defendant to whom such certificate pertains may file a motion to dismiss which shall specify the grounds or basis by which the certificate does not meet the requirements of the bill.
   NONECONOMIC DAMAGES. The bill provides that an award of noneconomic damages in an action for personal injury or wrongful death against a physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, or nurse licensed under Code chapter 147, based on the alleged negligence of the practitioner in the practice of that profession or occupation, or against a hospital licensed under Code chapter 135B, based on the alleged negligence of the hospital in patient care, in which liability is admitted or established, shall not exceed $500,000. “Noneconomic damages” is defined as nonpecuniary losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, loss of capacity for enjoyment of life, and any other nonpecuniary losses.