House File 487 - Introduced HOUSE FILE 487 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO HSB 105) A BILL FOR An Act relating to medical malpractice claims, including expert 1 witnesses and defenses. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1987HV (2) 87 jh/nh
H.F. 487 Section 1. Section 135P.1, subsection 2, Code 2017, is 1 amended to read as follows: 2 2. “Health care provider” means a physician or osteopathic 3 physician licensed under chapter 148 , a physician assistant 4 licensed under and practicing under a supervising physician 5 pursuant to chapter 148C , a podiatrist licensed under chapter 6 149 , or a chiropractor licensed under chapter 151, a licensed 7 practical nurse, a registered nurse, or an advanced registered 8 nurse practitioner licensed pursuant to under chapter 152 or 9 152E , a dentist licensed under chapter 153, an optometrist 10 licensed under chapter 154, a pharmacist licensed under chapter 11 155A, or any other person who is licensed, certified, or 12 otherwise authorized or permitted by the law of this state to 13 administer health care in the ordinary course of business or in 14 the practice of a profession . 15 Sec. 2. Section 147.139, Code 2017, is amended to read as 16 follows: 17 147.139 Expert witness standards. 18 1. If the standard of care given by a physician and surgeon 19 or an osteopathic physician and surgeon licensed pursuant to 20 chapter 148 , or a dentist licensed pursuant to chapter 153 , 21 health care provider is at issue, the court shall only allow 22 a person to qualify as an expert witness and to testify on 23 the issue of the appropriate standard of care if the person’s 24 medical or dental qualifications relate directly to the 25 medical problem or problems at issue and the type of treatment 26 administered in the case. , breach of the standard of care, or 27 proximate cause if all of the following are true: 28 a. The person is licensed to practice in the same field as 29 the defendant, is in good standing in each state of licensure, 30 and in the five years preceding the act or omission alleged to 31 be negligent, has not had a license in any state revoked or 32 suspended. 33 b. In the five years preceding the act or omission alleged 34 to be negligent, the person actively practiced in the same 35 -1- LSB 1987HV (2) 87 jh/nh 1/ 9
H.F. 487 field as the defendant or was a qualified instructor at an 1 accredited university in the same field as the defendant. 2 c. The person practiced or provided university instruction 3 in the same or substantially similar specialty as the 4 defendant. 5 d. The person is trained and experienced in the same 6 discipline or school of practice as the defendant or has 7 specialty expertise in the disease process or procedure 8 performed in the case. 9 e. If the defendant is board-certified in a specialty, the 10 person is certified in the same specialty by a board recognized 11 by the American board of medical specialties or the American 12 osteopathic association. 13 2. For purposes of this section, “health care provider” 14 means a physician or an osteopathic physician licensed under 15 chapter 148, a chiropractor licensed under chapter 151, a 16 podiatrist licensed under chapter 149, a physician assistant 17 licensed and practicing under a supervising physician under 18 chapter 148C, a licensed practical nurse, a registered nurse, 19 or an advanced registered nurse practitioner licensed under 20 chapter 152 or 152E, a dentist licensed under chapter 153, an 21 optometrist licensed under chapter 154, a pharmacist licensed 22 under chapter 155A, a hospital as defined in section 135B.1, or 23 a health care facility as defined in section 135C.1. 24 Sec. 3. NEW SECTION . 147.140 Expert witness —— certificate 25 of merit affidavit. 26 1. a. In any action for personal injury or wrongful 27 death against a health care provider based upon the alleged 28 negligence in the practice of that profession or occupation or 29 in patient care, including a cause of action for which expert 30 testimony is necessary to establish a prima facie case, the 31 plaintiff shall, within ninety days of the defendant’s answer, 32 serve upon the defendant a certificate of merit affidavit for 33 each expert witness listed pursuant to section 668.11 who will 34 testify with respect to the issues of standard of care, breach 35 -2- LSB 1987HV (2) 87 jh/nh 2/ 9
H.F. 487 of standard of care, or causation. All expert witnesses must 1 meet the qualifying standards of section 147.139. 2 b. A certificate of merit affidavit must be signed by the 3 expert witness and certify the purpose for calling the expert 4 witness by providing under the oath of the expert witness all 5 of the following: 6 (1) The expert witness’s statement of familiarity with the 7 applicable standard of care. 8 (2) The expert witness’s statement that the standard of care 9 was breached by the health care provider named in the petition. 10 (3) The expert witness’s statement of the actions that the 11 health care provider failed to take or should have taken to 12 comply with the standard of care. 13 (4) The expert witness’s statement of the manner by which 14 the breach of the standard of care was the cause of the injury 15 alleged in the petition. 16 c. A plaintiff shall serve a separate certificate of merit 17 affidavit on each defendant named in the petition. 18 d. Answers to interrogatories may serve as an expert 19 witness’s certificate of merit affidavit in lieu of a 20 separately executed affidavit if the interrogatories satisfy 21 the requirements of this subsection and are signed by the 22 plaintiff’s attorney and by each expert witness listed in the 23 answers to interrogatories and served upon the defendant within 24 ninety days of the defendant’s answer. 25 2. An expert witness’s certificate of merit affidavit does 26 not preclude additional discovery and supplementation of the 27 expert witness’s opinions in accordance with the rules of civil 28 procedure. 29 3. The parties by agreement or the court for good cause 30 shown and in response to a motion filed prior to the expiration 31 of the time limits specified in subsection 1 may provide for 32 extensions of the time limits. Good cause shall include 33 but not be limited to the inability to timely obtain the 34 plaintiff’s medical records from health care providers when 35 -3- LSB 1987HV (2) 87 jh/nh 3/ 9
H.F. 487 requested prior to filing the petition. 1 4. If the plaintiff is acting pro se, the plaintiff 2 shall sign the certificate of merit affidavit or answers to 3 interrogatories referred to in this section and shall be bound 4 by those provisions as if represented by an attorney. 5 5. a. Failure to substantially comply with subsection 6 1 shall result, upon motion, in dismissal with prejudice of 7 each cause of action as to which expert witness testimony is 8 necessary to establish a prima facie case. 9 b. A written notice of deficiency may be served upon the 10 plaintiff for failure to comply with subsection 1 because of 11 deficiencies in the certificate of merit affidavit or answers 12 to interrogatories. The notice shall state with particularity 13 each deficiency of the affidavit or answers to interrogatories. 14 The plaintiff shall have twenty days to cure the deficiency. 15 Failure to comply within the twenty days shall result, upon 16 motion, in mandatory dismissal with prejudice of each action 17 as to which expert witness testimony is necessary to establish 18 a prima facie case. A party resisting a motion for mandatory 19 dismissal pursuant to this section shall have the right to 20 request a hearing on the motion. 21 6. For purposes of this section, “health care provider” 22 means the same as defined in section 147.139. 23 Sec. 4. NEW SECTION . 622.31A Evidence-based medical 24 practice guidelines —— affirmative defense. 25 1. For purposes of this section: 26 a. “Evidence-based medical practice guidelines” means 27 voluntary medical practice parameters or protocols established 28 and released through a recognized physician consensus-building 29 organization approved by the United States department of 30 health and human services, the American medical association’s 31 physician consortium for performance improvement or similar 32 activity, or a recognized national medical specialty society. 33 b. “Health care provider” means the same as defined in 34 section 147.139. 35 -4- LSB 1987HV (2) 87 jh/nh 4/ 9
H.F. 487 2. In an action for personal injury or wrongful death 1 against a health care provider based upon the alleged 2 negligence in the practice of that profession or occupation or 3 in patient care, the health care provider may establish as an 4 affirmative defense that the health care provider complied with 5 evidence-based medical practice guidelines in the diagnosis and 6 treatment of the patient. 7 3. The court shall admit evidence-based medical practice 8 guidelines into evidence if introduced by a health care 9 provider or the health care provider’s employer and if the 10 health care provider or the health care provider’s employer 11 submits evidence that the evidence-based medical practice 12 guidelines were appropriate for the patient and that the 13 health care provider complied with such evidence-based 14 medical practice guidelines. Evidence of departure from an 15 evidence-based medical practice guideline is admissible only on 16 the issue of whether the health care provider is entitled to 17 establish an affirmative defense under this section. 18 4. This section shall not apply to any of the following: 19 a. The health care provider’s mistaken determination that 20 an evidence-based medical practice guideline applied to a 21 particular patient where such mistake was caused by the health 22 care provider’s negligence or intentional misconduct. 23 b. The health care provider’s failure to properly follow 24 an evidence-based medical practice guideline where such 25 failure was caused by the health care provider’s negligence or 26 intentional misconduct. 27 5. There shall be no presumption of negligence if a health 28 care provider did not adhere to an evidence-based medical 29 practice guideline. 30 EXPLANATION 31 The inclusion of this explanation does not constitute agreement with 32 the explanation’s substance by the members of the general assembly. 33 This bill relates to medical malpractice claims, including 34 expert witnesses and defenses. 35 -5- LSB 1987HV (2) 87 jh/nh 5/ 9
H.F. 487 ADVERSE HEALTH CARE INCIDENTS. Under Code chapter 135P, if 1 an adverse health care incident occurs, a health care provider 2 may offer to engage in an open discussion with the patient. If 3 the patient agrees, the health care provider may investigate 4 the incident, disclose the results to the patient, and discuss 5 steps the health care provider will take to prevent similar 6 incidents. The health care provider may also communicate to 7 the patient whether the health care provider believes that 8 an offer of compensation is warranted. All communications 9 made related to the open discussion are privileged and 10 confidential, are not subject to discovery or subpoena, and 11 are not admissible in evidence in a judicial, administrative, 12 or arbitration proceeding. Under current Code chapter 135P, 13 “health care provider” is defined as a physician licensed under 14 Code chapter 148, a physician assistant licensed under Code 15 chapter 148C, a podiatrist licensed under Code chapter 149, or 16 an advanced registered nurse practitioner licensed pursuant 17 to Code chapter 152 or 152E. The bill redefines “health 18 care provider” to mean a physician or osteopathic physician 19 licensed under chapter 148, a physician assistant licensed and 20 practicing under a supervising physician pursuant to chapter 21 148C, a podiatrist licensed under chapter 149, a chiropractor 22 licensed under chapter 151, a licensed practical nurse, a 23 registered nurse, or an advanced registered nurse practitioner 24 licensed under chapter 152 or 152E, a dentist licensed under 25 chapter 153, an optometrist licensed under chapter 154, a 26 pharmacist licensed under chapter 155A, or any other person who 27 is licensed, certified, or otherwise authorized or permitted by 28 the law of this state to administer health care in the ordinary 29 course of business or in the practice of a profession. 30 EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES. The 31 bill provides standards for an expert witness in a medical 32 malpractice case. The bill provides that a person is 33 only qualified to serve as an expert witness in a medical 34 malpractice case if the person is a licensed health care 35 -6- LSB 1987HV (2) 87 jh/nh 6/ 9
H.F. 487 provider, is in good standing in each state of licensure, and 1 in the five years preceding the act or omission alleged to 2 be negligent, has not had a license in any state revoked or 3 suspended; in the five years preceding the act or omission 4 alleged to be negligent, actively practiced in the same field 5 as the defendant or was a qualified instructor at an accredited 6 university in the same field as the defendant; practiced or 7 provided instruction in the same or substantially similar 8 specialty as the defendant; is trained and experienced in the 9 same discipline or school of practice as the defendant or 10 has specialty expertise in the disease process or procedure 11 performed in the case; and, if the defendant is board-certified 12 in a specialty, the person is certified in the same specialty. 13 The bill establishes a requirement for a certificate of 14 merit affidavit for expert witnesses in medical malpractice 15 cases. In an action for personal injury or wrongful death 16 against a health care provider based upon alleged negligence 17 in the practice of that profession or in patient care, the 18 bill requires the plaintiff, within 90 days of the defendant’s 19 answer, to serve upon the defendant a certificate of merit 20 affidavit for each expert witness who will testify with respect 21 to the issues of standard of care, breach of standard of care, 22 or causation. A certificate of merit affidavit must be signed 23 by the expert witness and certify the purpose for calling 24 the expert witness by providing under the oath of the expert 25 witness the expert witness’s statement of familiarity with the 26 applicable standard of care; statement that the standard of 27 care was breached by the health care provider; statement of the 28 actions that the health care provider failed to take or should 29 have taken; and statement of the manner by which the breach of 30 the standard of care was the cause of the injury. 31 The bill provides that answers to interrogatories may 32 serve as an expert witness’s certificate of merit affidavit 33 if the interrogatories satisfy the requirements of the bill. 34 The bill provides that the expert witness’s certificate of 35 -7- LSB 1987HV (2) 87 jh/nh 7/ 9
H.F. 487 merit affidavit does not preclude additional discovery and 1 supplementation of the expert witness’s opinions. 2 The bill provides that failure to substantially comply with 3 the new requirements shall result, upon motion, in dismissal 4 with prejudice of each cause of action as to which expert 5 witness testimony is necessary to establish a prima facie 6 case. A written notice of deficiency may be served upon the 7 plaintiff for failure to comply with the bill requirements 8 because of deficiencies in the certificate of merit affidavit 9 or answers to interrogatories, and the plaintiff shall have 20 10 days to cure the deficiency. Failure to comply within the 20 11 days shall result, upon motion, in mandatory dismissal with 12 prejudice of each action as to which expert witness testimony 13 is necessary to establish a prima facie case. 14 EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill 15 defines “evidence-based medical practice guidelines” as 16 voluntary medical practice parameters or protocols established 17 and released through a recognized physician consensus-building 18 organization. 19 The bill provides that in any action for personal injury 20 or wrongful death against a health care provider based 21 upon the alleged negligence of the health care provider in 22 patient care, the health care provider may establish as an 23 affirmative defense that the health care provider complied with 24 evidence-based medical practice guidelines in the diagnosis and 25 treatment of the patient. 26 The bill provides that the court shall admit evidence-based 27 medical practice guidelines into evidence if introduced by a 28 health care provider or the health care provider’s employer 29 and if the health care provider or the health care provider’s 30 employer submits evidence that the evidence-based medical 31 practice guideline was appropriate for the patient and that 32 the health care provider complied with such evidence-based 33 medical practice guidelines. Evidence of departure from a 34 guideline is admissible only on the issue of whether the health 35 -8- LSB 1987HV (2) 87 jh/nh 8/ 9
H.F. 487 care provider is entitled to establish an affirmative defense 1 under the bill. There shall be no presumption of negligence 2 if a health care provider did not adhere to an evidence-based 3 medical practice guideline. 4 -9- LSB 1987HV (2) 87 jh/nh 9/ 9