S.F. 206 Section 1. NEW SECTION . 519B.1 Definitions. 1 As used in this chapter, unless the context otherwise 2 requires: 3 1. “Commissioner” means the commissioner of insurance or a 4 designee. 5 2. “Cost of the periodic payments agreement” means the amount 6 expended by a health care provider, the health care provider’s 7 medical malpractice insurer, the commissioner, or a combination 8 thereof, at the time the periodic payments agreement is 9 made, to obtain a commitment from a third party to make money 10 available for use as future payment, the total of which may 11 exceed the limits provided in section 519B.14. 12 3. “Health care provider” means and includes a physician and 13 surgeon, osteopathic physician and surgeon, dentist, podiatric 14 physician, optometrist, pharmacist, chiropractor, or nurse 15 licensed pursuant to chapter 147, a hospital licensed pursuant 16 to chapter 135B, and a health care facility licensed pursuant 17 to chapter 135C. 18 4. “Medical malpractice insurance” means insurance coverage 19 against the legal liability of the insured and against loss, 20 damage, or expense incident to a claim arising out of the 21 death or injury of any person as the result of negligence or 22 malpractice in rendering professional service by any licensed 23 health care provider. 24 5. “Net direct premiums” means gross direct premiums 25 written on liability insurance as reported in the annual 26 statements filed by insurers with the commissioner, including 27 the liability component of multiple peril package policies as 28 computed by the commissioner, less return premiums for the 29 unused or unabsorbed portions of premium deposits. 30 6. “Patient” means an individual who receives or should 31 have received health care from a health care provider under a 32 contract, express or implied, and includes a person having a 33 claim of any kind, whether derivative or otherwise, as a result 34 of alleged malpractice on the part of a health care provider. 35 -1- LSB 1663XS (6) 87 av/nh 1/ 34

S.F. 206 For purposes of this subsection, “derivative” claims include 1 the claim of a parent or parents, guardian, trustee, child, 2 relative, attorney, or any other representative of a patient, 3 including claims for loss of services, loss of consortium, 4 expenses, and other similar claims. 5 7. “Periodic payments agreement” means a contract between 6 a health care provider or the health care provider’s medical 7 malpractice insurer and the patient or the patient’s estate, 8 under which the health care provider is relieved from possible 9 liability, whether or not some or all of the payments are 10 contingent upon the patient’s survival to the proposed date of 11 payment, in consideration of any of the following: 12 a. A present payment of moneys to the patient or the 13 patient’s estate. 14 b. One or more payments to the patient or the patient’s 15 estate in the future. 16 Sec. 2. NEW SECTION . 519B.2 Application of chapter. 17 A health care provider who fails to qualify under this 18 chapter is not covered by this chapter and is subject to 19 liability under the law without regard to this chapter. If 20 a health care provider does not qualify, a patient’s remedy 21 against the health care provider is not affected by this 22 chapter. 23 Sec. 3. NEW SECTION . 519B.3 Qualification of health care 24 providers. 25 1. A health care provider qualifies under and is subject to 26 the application of this chapter by doing both of the following: 27 a. Establishing financial responsibility as provided in 28 section 519B.4. 29 b. Paying the surcharge assessed as provided in section 30 519B.5. 31 2. A health care provider shall establish financial 32 responsibility and pay the surcharge not later than ninety 33 days after the effective date of the medical malpractice 34 insurance policy issued to the provider. Notwithstanding this 35 -2- LSB 1663XS (6) 87 av/nh 2/ 34

S.F. 206 requirement, the commissioner may accept a late filing and 1 payment if the filing is accompanied by a penalty amount as set 2 forth by the commissioner by rules adopted pursuant to chapter 3 17A. 4 3. Within five business days after the commissioner 5 receives the information and payment required under subsection 6 1 for the qualification of a health care provider, the 7 commissioner shall notify the health care provider whether the 8 provider is qualified and if the provider is qualified, the 9 date of qualification. 10 Sec. 4. NEW SECTION . 519B.4 Establishment of financial 11 responsibility. 12 A health care provider may establish the financial 13 responsibility of the health care provider and the provider’s 14 officers, agents, and employees while acting in the course and 15 scope of their employment with the health care provider in any 16 of the following ways: 17 1. By filing proof with the commissioner that the health 18 care provider is insured by a policy of medical malpractice 19 insurance in the amount of at least two hundred fifty thousand 20 dollars per occurrence and seven hundred fifty thousand dollars 21 in the annual aggregate, except for the following: 22 a. If the health care provider is a hospital licensed 23 pursuant to chapter 135B, the minimum annual aggregate amount 24 is as follows: 25 (1) For hospitals of not more than one hundred beds, five 26 million dollars. 27 (2) For hospitals of more than one hundred beds, seven 28 million five hundred thousand dollars. 29 b. If the health care provider is a health care facility 30 licensed pursuant to chapter 135C, the minimum annual aggregate 31 amount is as follows: 32 (1) For health care facilities with not more than one 33 hundred beds, seven hundred fifty thousand dollars. 34 (2) For health care facilities with more than one hundred 35 -3- LSB 1663XS (6) 87 av/nh 3/ 34

S.F. 206 beds, one million two hundred fifty thousand dollars. 1 2. By filing and maintaining with the commissioner cash or 2 a surety bond approved by the commissioner in the amounts set 3 forth in subsection 1. 4 3. a. If the health care provider is a hospital, by 5 annually submitting a verified financial statement that, in the 6 discretion of the commissioner, adequately demonstrates that 7 the current and future financial responsibility of the hospital 8 is sufficient to satisfy all potential malpractice claims 9 incurred by the hospital or the hospital’s officers, agents, 10 and employees while acting in the course and scope of their 11 employment up to a total of two hundred fifty thousand dollars 12 per occurrence and annual aggregates as follows: 13 (1) For hospitals of not more than one hundred beds, five 14 million dollars. 15 (2) For hospitals of more than one hundred beds, seven 16 million five hundred thousand dollars. 17 b. The commissioner may also require the deposit of security 18 to assure continued financial responsibility under this 19 subsection. 20 Sec. 5. NEW SECTION . 519B.5 Surcharge. 21 1. Beginning January 1, 2018, the commissioner shall assess 22 an annual surcharge on all health care providers in the state 23 who seek to qualify under this chapter, to create a source of 24 moneys for the patient compensation fund. 25 2. Beginning January 1, 2018, the amount of the annual 26 surcharge shall be one hundred percent of the annual cost 27 to each health care provider of maintaining financial 28 responsibility. 29 3. Notwithstanding subsection 2, beginning January 1, 30 2018, the surcharge for a health care provider licensed as a 31 physician under chapter 148 who seeks to qualify under this 32 chapter, shall be calculated as follows: 33 a. The commissioner shall contract with an actuary who 34 has experience in calculating the actuarial risks posed by 35 -4- LSB 1663XS (6) 87 av/nh 4/ 34

S.F. 206 physicians. Not later than July 1 of each year, the actuary 1 shall calculate the median of the premiums paid for medical 2 malpractice insurance to the three malpractice insurance 3 carriers in the state that have underwritten the most 4 malpractice insurance policies for all physicians practicing 5 in the same specialty class in the state during the previous 6 twelve-month period. In calculating the median, the actuary 7 shall consider the following: 8 (1) The manual rates of the three leading malpractice 9 insurance carriers in the state. 10 (2) The aggregate credits or debits to the manual rates 11 given during the previous twelve-month period. 12 b. After making the calculation described in paragraph 13 “a” , the actuary shall establish a uniform surcharge for 14 all licensed physicians practicing in the same specialty 15 class. The surcharge shall be based on a percentage of the 16 median calculated in paragraph “a” for all licensed physicians 17 practicing in the same specialty class under rules adopted by 18 the commissioner pursuant to chapter 17A. The surcharge shall 19 be sufficient to cover, but not exceed, the actuarial risk 20 posed to the patient compensation fund by physicians practicing 21 in the specialty class. 22 4. a. Notwithstanding subsection 2, beginning January 23 1, 2018, the surcharge for a health care provider that is a 24 hospital licensed under chapter 135B that seeks to qualify 25 under this chapter shall be established by the commissioner 26 through the use of an actuarial program in an amount that is 27 sufficient to cover, but not exceed, the actuarial risk posed 28 to the patient compensation fund by the hospital. 29 b. As used in this subsection, “actuarial program” means a 30 program used or created by the commissioner to determine the 31 actuarial risk posed to the patient compensation fund by a 32 hospital. The program must be all of the following: 33 (1) Developed to calculate actuarial risk posed by a 34 hospital, taking into consideration risk management programs 35 -5- LSB 1663XS (6) 87 av/nh 5/ 34

S.F. 206 used by the hospital. 1 (2) An efficient and accurate means of calculating a 2 hospital’s malpractice actuarial risk. 3 (3) Publicly identified by the commissioner by January 1 of 4 each year. 5 (4) Made available to a hospital’s malpractice insurance 6 carrier for purposes of calculating the hospital’s surcharge 7 under this subsection. 8 5. The surcharge shall be collected on the same basis as 9 premiums by each medical malpractice insurer. 10 6. The surcharges collected shall be remitted to the 11 commissioner for deposit into the patient compensation fund 12 within thirty days after a premium for medical malpractice 13 insurance has been received by an insurer from a health care 14 provider. If a surcharge is not paid as required by this 15 section, the insurer responsible for the delinquency is liable 16 for the surcharge plus a penalty equal to ten percent of the 17 amount of the surcharge, which penalty shall also be deposited 18 into the patient compensation fund. 19 7. a. The commissioner may adopt rules pursuant to chapter 20 17A establishing all of the following: 21 (1) The manner of determination of the surcharge for a 22 health care provider who establishes financial responsibility 23 in a manner other than by a policy of medical malpractice 24 insurance. 25 (2) The manner of payment of the surcharge by such a health 26 care provider. 27 b. The surcharge calculation established under paragraph 28 “a” shall provide comparability in rates for insured and 29 self-insured hospitals. The surcharge shall not exceed the 30 surcharge that would be charged by a medical malpractice 31 insurer if the health care provider electing to establish 32 financial responsibility in this manner had applied to a 33 malpractice insurer for insurance. 34 8. Beginning July 1, 2020, the annual surcharge shall be set 35 -6- LSB 1663XS (6) 87 av/nh 6/ 34

S.F. 206 by rules adopted by the commissioner pursuant to chapter 17A 1 that meet the following requirements: 2 a. The amount of the surcharge shall be determined based 3 upon actuarial principles and actuarial studies and must be 4 adequate for the payment of claims and expenses from the 5 patient compensation fund. 6 b. The annual surcharge for qualified health care providers 7 other than physicians licensed under chapter 148 and hospitals 8 licensed under chapter 135B shall not exceed the actuarial risk 9 posed to the patient compensation fund by qualified health care 10 providers and shall not be less than one hundred dollars. 11 Sec. 6. NEW SECTION . 519B.6 Patient compensation fund. 12 1. A patient compensation fund is established under the 13 custody of the treasurer of state and shall consist of payments 14 to the fund as provided by this chapter and any accumulated 15 interest and earnings in the patient compensation fund. 16 2. The treasurer of state is charged with conservation 17 of the assets of the patient compensation fund. Moneys 18 collected in the fund shall be disbursed only for the 19 purposes stated in this chapter and shall not at any time be 20 appropriated or diverted to any other use or purpose. Except 21 for reimbursements to the attorney general provided for in 22 subsection 4, disbursements from the fund shall be paid by 23 the treasurer of state only upon the written order of the 24 commissioner. The treasurer of state shall invest any surplus 25 moneys of the fund in securities which constitute legal 26 investments for state funds under the laws of this state, and 27 may sell any of the securities in which the fund is invested, 28 if necessary, for the proper administration or in the best 29 interests of the fund. 30 3. The treasurer of state shall quarterly prepare a 31 statement of the fund, setting forth the balance of moneys in 32 the fund, the income of the fund, specifying the source of all 33 income, the payments out of the fund, specifying the various 34 items of payments, and setting forth the balance of the fund 35 -7- LSB 1663XS (6) 87 av/nh 7/ 34

S.F. 206 remaining to its credit. The statement shall be open to public 1 inspection in the office of the treasurer of state. 2 4. a. The attorney general shall appoint a staff member to 3 represent the treasurer of state and the patient compensation 4 fund in all proceedings and matters arising under this chapter. 5 The attorney general shall be reimbursed up to two hundred 6 fifteen thousand dollars annually from the fund for services 7 provided related to the fund. The commissioner of insurance 8 shall consider the reimbursement to the attorney general as an 9 outstanding liability when making a determination of the amount 10 of the surcharge under section 519B.5. 11 b. The attorney general shall represent the fund when a 12 trial court determination is necessary to resolve a claim 13 against the patient compensation fund. 14 5. a. Claims for payment from the patient compensation fund 15 shall be computed and paid not later than sixty days after the 16 issuance of a court-approved settlement or final nonappealable 17 judgment. 18 b. If the balance in the fund is insufficient to pay in full 19 all claims that have become final during a three-month period, 20 the amount to each claimant shall be prorated. Any amount 21 left unpaid as a result of the proration shall be paid before 22 the payment of claims that become final during the following 23 three-month period. 24 c. The treasurer of state shall issue a warrant in the 25 amount of each claim submitted to the treasurer against 26 the fund not later than sixty days after the issuance of a 27 court-approved settlement or final nonappealable judgment. 28 The only claim against the fund shall be a voucher or other 29 appropriate request by the commissioner after the commissioner 30 receives one of the following: 31 (1) A certified copy of a final nonappealable judgment 32 against a health care provider qualified under this chapter. 33 (2) A certified copy of a court-approved settlement against 34 a health care provider qualified under this chapter. 35 -8- LSB 1663XS (6) 87 av/nh 8/ 34

S.F. 206 Sec. 7. NEW SECTION . 519B.7 Statute of limitations. 1 1. a. This section applies to all persons regardless of 2 minority or other legal disability, except as provided in 3 subsection 3. 4 b. Notwithstanding section 614.1, subsection 9, or any other 5 provision of law to the contrary, a claim, whether in contract 6 or tort, shall not be brought against a health care provider 7 qualified under this chapter based upon professional services 8 or health care that was provided or that should have been 9 provided unless the claim is brought within two years after the 10 date of the alleged act, omission, or neglect, except that a 11 minor less than six years of age has until the minor’s eighth 12 birthday to bring such claim. 13 c. If a patient meets the criteria stated in section 519B.8, 14 subsection 5, paragraph “c” , the applicable limitations period 15 is equal to the period that would otherwise apply to the person 16 under subsection 2 plus one hundred eighty days. 17 2. Notwithstanding section 614.1, subsection 9, section 18 519B.2, or any other provision of law to the contrary, any 19 claim, whether in contract or tort, by a minor or other person 20 under legal disability against a health care provider qualified 21 under this chapter stemming from professional services or 22 health care provided based on an alleged act, omission, or 23 neglect that occurred before January 1, 2018, shall be brought 24 only within the longer of either of the following: 25 a. Two years after January 1, 2018. 26 b. The period described in subsection 1. 27 3. a. The filing of a proposed complaint under section 28 519B.8 tolls the applicable statute of limitations to and 29 including a period of ninety days following receipt of the 30 opinion of the medical review panel by the claimant. 31 b. A proposed complaint under section 519B.8, subsection 5, 32 paragraph “c” , is considered filed when a copy of the proposed 33 complaint is delivered or mailed by registered or certified 34 mail to the commissioner. 35 -9- LSB 1663XS (6) 87 av/nh 9/ 34

S.F. 206 Sec. 8. NEW SECTION . 519B.8 Medical malpractice action —— 1 commencement. 2 1. A patient or a representative of a patient who has a 3 claim against a health care provider qualified under this 4 chapter for bodily injury or death on account of medical 5 malpractice may file a complaint in any court of law having 6 requisite jurisdiction and may, by demand, exercise the right 7 to a trial by jury. 8 2. A demand in such a medical malpractice complaint shall 9 not include a dollar amount, but the prayer shall be for such 10 damages as are reasonable in the circumstances. 11 3. Notwithstanding subsection 1, an action for medical 12 malpractice against a health care provider qualified under 13 this chapter shall not be commenced in a court in this state 14 until the claimant’s proposed complaint has been filed with 15 the commissioner and presented to a medical review panel 16 established under section 519B.10 and an opinion on the 17 complaint has been rendered by the panel. 18 4. Notwithstanding subsection 3, a claimant may commence 19 an action in court for medical malpractice against a health 20 care provider qualified under this chapter without presentation 21 of the claim to a medical review panel if the claimant and 22 all parties named as defendants in the action agree that the 23 claim is not to be presented to a medical review panel. The 24 agreement shall be in writing and shall be signed by each party 25 or an authorized agent of the party. The claimant shall attach 26 a copy of the agreement to the complaint filed with the court 27 in which the action is commenced. 28 5. a. Notwithstanding subsection 3, a patient may commence 29 an action against a health care provider qualified under 30 this chapter for medical malpractice without submitting a 31 proposed complaint to a medical review panel if the patient’s 32 pleadings include a declaration that the patient seeks damages 33 from the health care provider in an amount not greater than 34 fifteen thousand dollars. In an action commenced under this 35 -10- LSB 1663XS (6) 87 av/nh 10/ 34

S.F. 206 subsection, the patient is barred from recovering any amount 1 greater than fifteen thousand dollars except as provided in 2 paragraph “b” . 3 b. A patient who commences an action under paragraph 4 “a” in the reasonable belief that damages in an amount not 5 greater than fifteen thousand dollars are adequate compensation 6 for the bodily injury allegedly caused by the health care 7 provider’s medical malpractice and later learns, during the 8 pendency of the action, that the bodily injury is more serious 9 than previously believed and that fifteen thousand dollars 10 is insufficient compensation for the bodily injury, may move 11 that the action be dismissed without prejudice, and upon 12 dismissal of the action, may file a proposed complaint subject 13 to subsection 3 based upon the same allegations of medical 14 malpractice that were asserted in the action dismissed under 15 this paragraph. However, a patient may move for dismissal 16 without prejudice and, if dismissal without prejudice is 17 granted, may commence a second action under this paragraph only 18 if the patient’s motion for dismissal is filed within two years 19 after commencement of the original action under paragraph “a” . 20 c. If a patient commences an action under paragraph “a” , 21 moves for dismissal of that action under paragraph “b” , files a 22 proposed complaint subject to subsection 3 based on the same 23 allegations of malpractice as were asserted in the action 24 dismissed under paragraph “b” , and commences a second action 25 following the medical review panel proceeding on the proposed 26 complaint, the timeliness of the second action is governed by 27 the provisions of section 519B.7. 28 d. A medical malpractice insurer of a health care provider 29 against whom an action has been filed under paragraph “a” shall 30 provide written notice to the commissioner. 31 6. If action has not been taken in a case before the 32 commissioner for a period of at least two years, the 33 commissioner may, on the motion of a party or on the 34 commissioner’s own initiative, file a motion in the Polk county 35 -11- LSB 1663XS (6) 87 av/nh 11/ 34

S.F. 206 district court to dismiss the case. 1 Sec. 9. NEW SECTION . 519B.9 Reporting and review of claims. 2 1. Within ten days after receiving a proposed complaint 3 under section 519B.8, the commissioner shall forward a copy of 4 the complaint by registered or certified mail to each health 5 care provider qualified under this chapter who is named as a 6 defendant, at the defendant’s last and usual place of residence 7 or the defendant’s office. 8 2. A medical malpractice insurer of a health care provider 9 qualified under this chapter against whom an action has been 10 filed pursuant to section 519B.8, subsection 5, shall provide 11 written notice to the commissioner within thirty days after 12 both of the following: 13 a. The filing of the action. 14 b. The final disposition of the action. 15 3. a. A medical malpractice insurer shall notify the 16 commissioner of any malpractice case upon which the insurer has 17 placed a reserve of at least one hundred twenty-five thousand 18 dollars, immediately after placing the reserve. The notice and 19 all communications and correspondence relating to the notice 20 are confidential and shall not be made available to any person 21 or any other public or private agency. 22 b. All malpractice claims settled or adjudicated to final 23 judgment against a health care provider qualified under 24 this chapter shall be reported to the commissioner by the 25 plaintiff’s attorney and by the health care provider or the 26 health care provider’s medical malpractice insurer within 27 sixty days following final disposition of the claim. The 28 report to the commissioner shall include all of the following 29 information: 30 (1) The nature of the claim. 31 (2) The damages asserted and the alleged injury. 32 (3) The attorney fees and expenses incurred in connection 33 with the claim or defense. 34 (4) The amount of the settlement or judgment. 35 -12- LSB 1663XS (6) 87 av/nh 12/ 34

S.F. 206 4. a. A medical review panel established pursuant to 1 section 519B.10 shall make a separate determination, at the 2 time the panel renders an opinion, as to whether the name 3 of the defendant health care provider should be forwarded 4 to the appropriate board of professional regulation for 5 review of the health care provider’s fitness to practice the 6 health care provider’s profession. The commissioner shall 7 forward the name of the defendant health care provider if the 8 medical review panel unanimously determines that the name 9 should be forwarded. The medical review panel determination 10 concerning the forwarding of the name of a defendant health 11 care provider is not admissible as evidence in a civil action. 12 In each case involving review of a health care provider’s 13 fitness to practice that is forwarded under this subsection, 14 the appropriate board of professional regulation may, in 15 appropriate cases, take any disciplinary actions within the 16 authority of that board against the health care provider. 17 b. The appropriate board of professional regulation shall 18 report to the commissioner the board’s findings, the action 19 taken, and the final disposition of each case involving review 20 of a health care provider’s fitness to practice forwarded under 21 this subsection. 22 Sec. 10. NEW SECTION . 519B.10 Medical review panel. 23 1. A medical review panel may be established for the purpose 24 of reviewing a proposed malpractice complaint against a health 25 care provider qualified under this chapter. 26 2. Not earlier than twenty days after the filing of a 27 proposed complaint under section 519B.8, either party to the 28 complaint may request the formation of a medical review panel 29 by serving a request by registered or certified mail upon all 30 parties and the commissioner. 31 3. A medical review panel established pursuant to this 32 section shall consist of one attorney and three health care 33 providers. 34 a. The attorney member of the medical review panel shall 35 -13- LSB 1663XS (6) 87 av/nh 13/ 34

S.F. 206 act as the chair of the panel and in an advisory capacity as a 1 nonvoting member. 2 b. The chair of the medical review panel shall expedite the 3 selection of the other panel members, convene the panel, and 4 expedite the panel’s review of the proposed complaint. The 5 chair shall establish a reasonable schedule for submission of 6 evidence to the medical review panel that allows sufficient 7 time for the parties to make full and adequate presentation of 8 related facts and authorities. 9 4. A medical review panel chair shall be selected as 10 follows: 11 a. Within fifteen days after the filing of a request 12 for formation of a medical review panel under subsection 2, 13 the parties shall select a panel chair by agreement. If no 14 agreement on a panel chair can be reached, either party may 15 request the clerk of the supreme court to draw at random a list 16 of five names of attorneys who meet the following requirements: 17 (1) Are qualified to practice. 18 (2) Are presently licensed to practice in the state. 19 (3) Maintain offices in the county of venue designated in 20 the proposed complaint or in a contiguous county. 21 b. Before selecting the random list, the clerk shall collect 22 a fee, as provided by rules adopted under chapter 17A, from the 23 party making the request for the formation of the random list. 24 c. The clerk shall notify the parties, and the parties shall 25 then strike names alternately, with the plaintiff striking 26 first, until one name remains. The remaining attorney shall be 27 the chair of the panel. 28 d. After the striking procedure, the plaintiff shall notify 29 the chair and all other parties of the name of the chair 30 selected. 31 e. If a party does not strike a name from the list within 32 five days after receiving notice from the clerk, the opposing 33 party shall, in writing, request the clerk to strike for the 34 party and the clerk shall strike for the party. 35 -14- LSB 1663XS (6) 87 av/nh 14/ 34

S.F. 206 f. When one name remains, the clerk shall within five days 1 notify the chair and all other parties of the name of the 2 chair. 3 g. Within fifteen days after being notified by the clerk 4 of being selected as chair, the chair shall do one of the 5 following: 6 (1) Send a written acknowledgment of appointment to the 7 clerk. 8 (2) Show good cause for relief from serving as provided in 9 subsection 7. 10 5. Health care providers shall be selected for a medical 11 review panel as follows: 12 a. Except for health care providers who are health facility 13 administrators, all health care providers in the state, whether 14 in the teaching profession or otherwise, shall be available 15 for selection as members of a medical review panel. A health 16 facility administrator shall not be a member of a medical 17 review panel. 18 b. Each party to the action has the right to select one 19 health care provider, and upon selection, the two health care 20 providers selected shall select a third health care provider 21 to be a panelist. 22 c. If there are multiple plaintiffs or defendants, only 23 one health care provider shall be selected per side. The 24 plaintiff, whether single or multiple, has the right to select 25 one health care provider, and the defendant, whether single or 26 multiple, has the right to select one health care provider. 27 d. Notwithstanding paragraph “c” , if there is only one 28 party defendant and that defendant is an individual, two of the 29 panelists selected shall be members of the profession of which 30 the defendant is a member. If the individual defendant is a 31 health care provider who specializes in a limited area, two 32 of the panelists selected shall be health care providers who 33 specialize in the same area as the defendant. 34 e. Within fifteen days after the chair of the panel is 35 -15- LSB 1663XS (6) 87 av/nh 15/ 34

S.F. 206 selected, both parties shall select a health care provider and 1 the parties shall notify the other party and the chair of their 2 selection. If a party fails to make a selection within the 3 time provided, the chair shall make the selection and notify 4 both parties. Within fifteen days after their selection, the 5 health care provider members shall select the third member 6 within the time provided and notify the chair and the parties. 7 If the providers fail to make a selection, the chair shall make 8 the selection and notify both parties. 9 f. Within ten days after the selection of a panel member, 10 written challenge without cause may be made to the panel 11 member. Upon challenge or excuse, the party whose appointee 12 was challenged or dismissed shall select another panelist. 13 If the challenged or dismissed member was selected by the 14 other two panel members, the panel members shall make a new 15 selection. If two such challenges are made and submitted, 16 the chair shall within ten days appoint a panel consisting of 17 three qualified panelists and each side shall, within ten days 18 after the appointment, strike one panelist. The party whose 19 appointment was challenged shall strike last, and the remaining 20 member shall serve. 21 6. When a medical review panel is formed, the chair shall, 22 within five days, notify the commissioner and the parties by 23 registered or certified mail of the names and addresses of 24 the panel members and the date on which the last member was 25 selected. 26 7. a. A member of a medical review panel who is selected 27 under this chapter shall serve unless either of the following 28 occurs: 29 (1) The parties by agreement excuse the panelist. 30 (2) The panelist is excused as provided in this subsection 31 for good cause shown. 32 b. To show good cause for relief from serving, the attorney 33 selected as chair of the medical review panel shall serve an 34 affidavit upon the clerk of the supreme court that sets out the 35 -16- LSB 1663XS (6) 87 av/nh 16/ 34

S.F. 206 facts showing that service would constitute an unreasonable 1 burden or undue hardship. Upon such a showing, the clerk shall 2 excuse the attorney from serving. The attorney shall notify 3 all parties that the attorney is excused and the parties shall 4 then select a new chair as provided in subsection 4. 5 c. To show good cause for relief from serving, a health 6 care provider member of a medical review panel shall serve an 7 affidavit upon the panel chair. The affidavit shall set out 8 the facts showing that service would constitute an unreasonable 9 burden or undue hardship. Upon such a showing, the chair shall 10 excuse the member from serving. The chair shall notify all 11 parties that the member is excused and the parties shall select 12 a new member as provided in subsection 5. 13 8. a. The panel shall render its expert opinion within 14 one hundred eighty days after the selection of the last member 15 of the initial panel. However, the panel has ninety days 16 after the selection of a new panel member to render its expert 17 opinion if either of the following occurs: 18 (1) The chair of the panel is removed under subsection 10, 19 another member of the panel is removed under subsection 11, or 20 any member of the panel, including the chair, is removed by a 21 court order. 22 (2) A new member is selected to replace the removed member 23 more than ninety days after the last member of the initial 24 panel is selected. 25 b. If the panel does not render an opinion within the time 26 allowed under paragraph “a” , the panel shall submit a report to 27 the commissioner, stating the reasons for the delay. 28 9. A party, attorney, or panelist who fails to act as 29 required by this section without good cause is subject to 30 mandate or appropriate sanctions upon application to the court 31 designated in the proposed complaint as having jurisdiction. 32 10. The commissioner may remove the chair of the panel if 33 the commissioner determines that the chair is not fulfilling 34 the duties imposed upon the chair by this section. If the 35 -17- LSB 1663XS (6) 87 av/nh 17/ 34

S.F. 206 chair is removed under this subsection, a new chair shall be 1 selected as required in this section. 2 11. The chair of the panel may remove a member of the panel 3 if the chair determines that the member is not fulfilling the 4 duties imposed upon a panel member by this chapter. If a 5 member is removed under this subsection, a new member shall be 6 selected as required in this section. 7 12. a. The evidence in written form to be considered by 8 the medical review panel shall be promptly submitted by the 9 respective parties. 10 (1) The evidence may consist of medical charts, x-rays, 11 lab tests, excerpts of treatises, depositions of witnesses 12 including parties, and any other form of evidence allowed by 13 the medical review panel. 14 (2) Depositions of parties and witnesses may be taken before 15 the convening of the panel. 16 b. The chair shall ensure that before the panel renders its 17 expert opinion under subsection 17, each panel member has the 18 opportunity to review every item of evidence submitted by the 19 parties. 20 c. Before considering any evidence or deliberating with 21 other panel members, each member of the medical review panel 22 shall take an oath in writing on a form provided by the panel 23 chair which shall read as follows: 24 “I swear under penalty of perjury that I will well and 25 truly consider the evidence submitted by the parties; that I 26 will render my opinion without bias, based upon the evidence 27 submitted by the parties; and that I have not and will not 28 communicate with any party or representative of a party before 29 rendering my opinion, except as authorized by law.” 30 13. A party, a party’s agent, a party’s attorney, or a 31 party’s malpractice insurer shall not communicate with any 32 member of the panel, except as authorized by law, before the 33 panel renders an expert opinion under subsection 17. 34 14. The chair of the panel shall advise the panel relative 35 -18- LSB 1663XS (6) 87 av/nh 18/ 34

S.F. 206 to any legal question involved in the review proceeding 1 and shall prepare the opinion of the panel as provided in 2 subsection 17. 3 15. Either party, after submission of all evidence and 4 upon ten days’ notice to the other side, has the right to 5 convene the panel at a time and place agreeable to the members 6 of the panel. Either party may question the panel concerning 7 any matters relevant to issues to be decided by the panel 8 before the issuance of the panel’s report. The chair of the 9 panel shall preside at all meetings convened pursuant to this 10 subsection and the meetings shall be informal. 11 16. a. The panel has the right and duty to request all 12 necessary information. 13 b. The panel may consult with medical authorities. 14 c. The panel may examine reports of other health care 15 providers necessary to fully inform the panel regarding the 16 issue to be decided. 17 d. Both parties shall have full access to any material 18 submitted to the panel. 19 17. a. The panel has the sole duty to express the panel’s 20 expert opinion as to whether or not the evidence supports the 21 conclusion that the defendant or defendants acted or failed to 22 act within the appropriate standards of care as charged in the 23 proposed complaint. 24 b. After reviewing all evidence and after any examination 25 of the panel by counsel representing either party, the panel 26 shall, within thirty days, render one or more of the following 27 expert opinions, which shall be in writing and signed by the 28 panelists: 29 (1) The evidence supports the conclusion that the defendant 30 or defendants failed to comply with the appropriate standard of 31 care as charged in the proposed complaint. 32 (2) The evidence does not support the conclusion that the 33 defendant or defendants failed to comply with the appropriate 34 standard of care as charged in the proposed complaint. 35 -19- LSB 1663XS (6) 87 av/nh 19/ 34

S.F. 206 (3) There is a material issue of fact, not requiring expert 1 opinion, bearing on liability for consideration by the court 2 or jury. 3 (4) The conduct complained of was or was not a factor in the 4 resultant damages, and if so, whether the plaintiff suffered 5 either of the following: 6 (a) Any disability and the extent and duration of the 7 disability. 8 (b) Any permanent impairment and the percentage of 9 impairment. 10 18. A report of the expert opinion rendered by the 11 medical review panel is admissible as evidence in any action 12 subsequently brought by the plaintiff in a court of law. 13 However, the expert opinion is not conclusive, and either 14 party, at the party’s cost, has the right to call any member of 15 the medical review panel as a witness. If called as a witness, 16 the member shall appear and testify. 17 19. A panelist has absolute immunity from civil liability 18 for all communications, findings, opinions, and conclusions 19 made in the course and scope of duties prescribed by this 20 chapter. 21 20. a. Each health care provider member of the medical 22 review panel is entitled to be paid the following: 23 (1) Up to three hundred fifty dollars for all work performed 24 as a member of the panel, exclusive of time involved if called 25 as a witness to testify in court. 26 (2) Reasonable travel expenses. 27 b. The chair of the panel is entitled to be paid the 28 following: 29 (1) The rate of two hundred fifty dollars per diem, not to 30 exceed two thousand dollars. 31 (2) Reasonable travel expenses. 32 c. The chair shall keep an accurate record of the time and 33 expenses of all members of the panel. The records shall be 34 submitted to the parties for payment with the panel’s report. 35 -20- LSB 1663XS (6) 87 av/nh 20/ 34

S.F. 206 d. Fees of the panel, including travel expenses and other 1 expenses of the review, shall be paid by the side in whose 2 favor the majority opinion is rendered. If there is not a 3 majority opinion, each side shall pay fifty percent of the 4 fees. 5 21. The chair shall submit a copy of the panel’s report to 6 the commissioner and to all parties and attorneys by registered 7 or certified mail within five days after the panel renders its 8 opinion. 9 Sec. 11. NEW SECTION . 519B.11 Preliminary determination of 10 affirmative defense or issue of law or fact —— discovery. 11 1. a. A court having jurisdiction over the subject 12 matter and the parties to a proposed complaint filed with the 13 commissioner under this chapter may, upon the filing of a copy 14 of the proposed complaint and a written motion made under this 15 section, do any of the following: 16 (1) Preliminarily determine an affirmative defense or issue 17 of law or fact that may be preliminarily determined under the 18 Iowa rules of civil procedure. 19 (2) Compel discovery in accordance with the Iowa rules of 20 civil procedure. 21 b. The court has no jurisdiction to rule preliminarily 22 upon any affirmative defense or issue of law or fact reserved 23 for written expert opinion by the medical review panel under 24 section 519B.10, subsection 17, paragraph “b” , subparagraph 25 (1), (2), or (4). 26 c. The court has jurisdiction to entertain a motion filed 27 under this subsection only during that time after a proposed 28 complaint is filed with the commissioner under section 519B.8, 29 but before the medical review panel renders the panel’s opinion 30 under section 519B.10, subsection 17. 31 d. The failure of any party to move for a preliminary 32 determination or to compel discovery under this subsection 33 before the medical review panel renders the panel’s written 34 opinion under section 519B.10, subsection 17, does not 35 -21- LSB 1663XS (6) 87 av/nh 21/ 34

S.F. 206 constitute the waiver of any affirmative defense or issue of 1 law or fact. 2 2. a. A party to a proceeding commenced under this chapter, 3 the commissioner, or the chair of a medical review panel, if 4 any, may invoke the jurisdiction of the court by paying the 5 required filing fee to the clerk and filing a copy of the 6 proposed complaint and motion with the clerk. 7 b. The filing of a copy of the proposed complaint and 8 motion with the clerk confers jurisdiction upon the court over 9 the subject matter and the parties to the proceeding for the 10 limited purposes stated in this section, including the taxation 11 and assessment of costs or the allowance of expenses, including 12 reasonable attorney fees, or both. 13 c. The moving party or the moving party’s attorney shall 14 cause as many summonses as are necessary to be issued by the 15 clerk and served on the commissioner, each nonmoving party to 16 the proceedings, and the chair of the medical review panel, if 17 any, unless the commissioner or the chair is the moving party, 18 together with a copy of the proposed complaint and a copy of 19 the motion pursuant to the Iowa rules of civil procedure. 20 3. a. Each nonmoving party to the proceeding, including 21 the commissioner and the chair of the medical review panel, if 22 any, shall have a period of twenty days after service to appear 23 and file and serve a written response to the motion, unless the 24 court, for cause shown, orders the period enlarged. 25 b. The court shall enter a ruling on the motion as follows: 26 (1) Within thirty days after the motion is heard. 27 (2) If no hearing is requested, granted, or ordered, within 28 thirty days after the date on which the last written response 29 to the motion is filed. 30 c. The court shall order the clerk to serve a copy of 31 the proposed complaint and motion by ordinary mail on the 32 commissioner, each party to the proceeding, and the chair of 33 the medical review panel. 34 4. Upon the filing of a copy of the proposed complaint and 35 -22- LSB 1663XS (6) 87 av/nh 22/ 34

S.F. 206 motion with the clerk of court, all further proceedings before 1 the medical review panel shall be automatically stayed until 2 the court has entered a ruling on the motion. 3 5. The court may enforce its ruling on any motion filed 4 under this section in accordance with the Iowa rules of civil 5 procedure. 6 Sec. 12. NEW SECTION . 519B.12 Liability based on breach of 7 contract —— informed consent. 8 1. Liability shall not be imposed on a health care provider 9 qualified under this chapter on the basis of an alleged 10 breach of contract, express or implied, assuring results to be 11 obtained from any treatment, procedure, examination, or test 12 undertaken in the course of health care, unless the contract 13 is in writing and signed by that health care provider or by an 14 authorized agent of the health care provider. 15 2. For purposes of this chapter, a rebuttable presumption is 16 created that consent to any treatment, procedure, examination, 17 or test undertaken in the course of health care is informed 18 consent if a patient’s written consent meets all of the 19 following requirements: 20 a. Is signed by the patient or the patient’s authorized 21 representative. 22 b. Is witnessed by an individual at least eighteen years of 23 age. 24 c. Is explained, orally or in the written consent, to the 25 patient or the patient’s authorized representative before a 26 treatment, procedure, examination, or test is undertaken. 27 3. The explanation required in subsection 2, paragraph “c” , 28 shall include all of the following information: 29 a. The general nature of the patient’s condition. 30 b. The proposed treatment, procedure, examination, or test. 31 c. The expected outcome of the treatment, procedure, 32 examination, or test. 33 d. The reasonable alternatives to the treatment, procedure, 34 examination, or test. 35 -23- LSB 1663XS (6) 87 av/nh 23/ 34

S.F. 206 4. This section does not do any of the following: 1 a. Relieve a health care provider qualified under this 2 chapter of the duty to obtain an informed consent. 3 b. Prevent a patient, after having signed a consent, from 4 withdrawing that consent. 5 c. Require that a patient’s consent or the information 6 described in subsection 3 be in writing in all cases. 7 5. Compliance with this chapter is not required to create an 8 informed consent. 9 6. A patient may refuse to receive some or all of the 10 information described in subsection 3. 11 7. Subsections 2 and 3 do not apply to a person who is 12 mentally incapable of understanding the information required 13 to be provided in subsection 3. 14 8. This section does not require consent to health care in 15 an emergency. 16 Sec. 13. NEW SECTION . 519B.13 Malpractice coverage. 17 1. The liability of a health care provider qualified under 18 this chapter and the health care provider’s medical malpractice 19 insurer to a patient or the patient’s representative for 20 malpractice is limited to the extent and in the manner 21 specified in this chapter only while medical malpractice 22 insurance remains in force. 23 2. The establishment of financial responsibility with the 24 commissioner pursuant to section 519B.4 constitutes, on the 25 part of the medical malpractice insurer, a conclusive and 26 unqualified acceptance of the provisions of this chapter. 27 3. A provision in a medical malpractice insurance policy 28 that attempts to limit or modify the liability of an insurer 29 contrary to the provisions of this chapter is void. 30 4. Every policy of medical malpractice insurance issued 31 pursuant to this chapter is deemed to include the following 32 provisions, and any changes made by legislation adopted by the 33 general assembly, as fully as if the provision or change were 34 written in the policy: 35 -24- LSB 1663XS (6) 87 av/nh 24/ 34

S.F. 206 a. The insurer assumes all obligations to pay an award 1 imposed against its insured under this chapter. 2 b. A termination of a medical malpractice insurance policy 3 by cancellation initiated by the insurer is not effective 4 for patients claiming against the insured covered by the 5 policy unless at least thirty days before the cancellation 6 takes effect, a written notice giving the date upon which the 7 termination becomes effective has been received by the insured 8 and the commissioner at their offices. 9 c. A termination of a medical malpractice insurance policy 10 by cancellation initiated by the insured is not effective 11 for patients claiming against the insured covered by the 12 policy unless at least thirty days before the cancellation 13 takes effect, a written notice giving the date upon which 14 the termination becomes effective has been received by the 15 commissioner at the commissioner’s offices. 16 5. If a medical malpractice insurer fails or refuses to pay 17 a final judgment, except during the pendency of an appeal, or 18 fails or refuses to comply with the provisions of this chapter, 19 in addition to any other legal remedy, the commissioner may 20 also revoke the approval of the insurer’s policy form until the 21 insurer pays the award or judgment or has complied with any 22 other provision of this chapter and has resubmitted its policy 23 form and received the approval of the commissioner. 24 Sec. 14. NEW SECTION . 519B.14 Limits on damages. 25 1. a. The total amount recoverable in an action under this 26 chapter for an injury to or death of a patient shall not exceed 27 one million two hundred fifty thousand dollars for an act of 28 malpractice that occurs after January 1, 2018. 29 b. A health care provider qualified under this chapter 30 is not liable for an amount in excess of two hundred fifty 31 thousand dollars for an occurrence of malpractice. 32 c. Any amount due from a judgment or settlement that is 33 in excess of the total liability of all liable health care 34 providers, subject to paragraph “a” , “b” , or “d” , shall be paid 35 -25- LSB 1663XS (6) 87 av/nh 25/ 34

S.F. 206 from the patient compensation fund under section 519B.6. 1 d. If a health care provider qualified under this chapter 2 admits liability or is adjudicated liable solely by reason of 3 the conduct of another health care provider who is an officer, 4 agent, or employee of the health care provider acting in 5 the course and scope of employment and qualified under this 6 chapter, the total amount that shall be paid to the claimant 7 on behalf of the officer, agent, or employee and the health 8 care provider by the health care provider or the provider’s 9 medical malpractice insurer is two hundred fifty thousand 10 dollars. The balance of an adjudicated amount to which the 11 claimant is entitled shall be paid by the other liable health 12 care providers or from the patient compensation fund, or both. 13 2. a. If the possible liability of a health care provider 14 to a patient is discharged solely through an immediate payment, 15 the limitations on recovery from a health care provider 16 stated in subsection 1, paragraphs “b” and “d” , apply without 17 adjustment. 18 b. If the health care provider agrees to discharge its 19 possible liability for the patient through a periodic payments 20 agreement, the amount of the patient’s recovery from a health 21 care provider in a case under this subsection is the amount of 22 any immediate payment made by the health care provider or the 23 health care provider’s insurer to the patient, plus the cost 24 of the periodic payments agreement to the health care provider 25 or the health care provider’s insurer. For the purpose of 26 determining the limitations on recovery stated in subsection 27 1, paragraphs “b” and “d” , and for the purpose of determining 28 the question under section 519B.15 of whether the health care 29 provider or the health care provider’s insurer has agreed to 30 settle its liability by payment of its policy limits, the sum 31 of both of the following must exceed one hundred eighty-seven 32 thousand dollars: 33 (1) The present payment of moneys to the patient or the 34 patient’s estate by the health care provider or the health care 35 -26- LSB 1663XS (6) 87 av/nh 26/ 34

S.F. 206 provider’s insurer. 1 (2) The cost of the periodic payments agreement expended by 2 the health care provider or the health care provider’s insurer. 3 c. More than one health care provider may contribute to 4 the cost of a periodic payments agreement, and in such an 5 instance the sum of the amounts expended by each health care 6 provider for immediate payment and for the cost of the periodic 7 payments agreement shall be used to determine whether the one 8 hundred eighty-seven thousand dollar requirement in paragraph 9 “b” has been satisfied. However, one health care provider or 10 the health care provider’s insurer must be liable for at least 11 fifty thousand dollars. 12 3. a. If the possible liability of the patient compensation 13 fund to the patient is discharged solely through a direct 14 payment made under section 519B.15, the limitations on recovery 15 from the patient compensation fund apply without adjustment. 16 b. If an agreement is made to discharge the fund’s possible 17 liability to the patient through a periodic payments agreement, 18 the amount of the patient’s recovery from the fund for the 19 purpose of the limitation on recovery from the fund is the sum 20 of the following: 21 (1) The amount of any immediate payment made directly to the 22 patient from the fund. 23 (2) The cost of the periodic payments agreement paid by the 24 commissioner on behalf of the fund. 25 Sec. 15. NEW SECTION . 519B.15 Payment from patient 26 compensation fund. 27 1. An obligation to pay an amount from the patient 28 compensation fund may be discharged as follows: 29 a. Payment in one lump amount. 30 b. An agreement requiring periodic payments from the fund 31 over a period of years. 32 c. The purchase of an annuity payable to the patient. 33 d. Any combination of payments made pursuant to paragraph 34 “a” , “b” , or “c” . 35 -27- LSB 1663XS (6) 87 av/nh 27/ 34

S.F. 206 2. The commissioner may contract with approved insurers to 1 ensure the ability of the fund to make periodic payments under 2 subsection 1, paragraph “b” . 3 3. Notwithstanding section 519B.16, the commissioner may 4 do any of the following: 5 a. Discharge the possible liability of the patient 6 compensation fund to a patient through a periodic payments 7 agreement. 8 b. Combine moneys from the patient compensation fund with 9 moneys of the health care provider or the provider’s insurer 10 to pay the cost of the periodic payments agreement with the 11 patient or the patient’s estate. However, the amount provided 12 by the commissioner shall not exceed eighty percent of the 13 total amount expended for the agreement. 14 4. If a health care provider or the provider’s insurer has 15 agreed to settle the provider’s liability on a claim by payment 16 of the policy limits of two hundred fifty thousand dollars, and 17 the claimant is demanding an amount in excess of that amount, 18 the following procedure shall be followed: 19 a. A petition shall be filed by the claimant in the 20 court named in the proposed complaint, seeking either of the 21 following: 22 (1) Approval of an agreed settlement, if any. 23 (2) Payment of a demand for damages from the patient 24 compensation fund. 25 b. A copy of the petition with summons shall be served on 26 the commissioner, the health care provider, and the health care 27 provider’s insurer, and shall contain sufficient information to 28 inform the other parties about the nature of the claim and the 29 additional amount demanded. 30 c. The commissioner and either the health care provider 31 or the provider’s insurer may agree to a settlement with 32 the claimant from the patient compensation fund, or the 33 commissioner, the health care provider, or the provider’s 34 insurer may file written objections to payment of the amount 35 -28- LSB 1663XS (6) 87 av/nh 28/ 34

S.F. 206 demanded. The agreement or objections to the payment demanded 1 shall be filed within twenty days after service of a summons 2 with a copy of the petition attached. 3 d. The judge of the court in which the petition is filed 4 shall set the petition for approval or, if objections have been 5 filed, for hearing as soon as practicable. The court shall 6 give notice of the hearing to the claimant, the health care 7 provider, the provider’s insurer, and the commissioner. 8 e. At the hearing, the commissioner, the claimant, the 9 health care provider, and the provider’s insurer may introduce 10 relevant evidence to enable the court to determine whether 11 or not the petition should be approved if the evidence 12 is submitted on agreement without objections. If the 13 commissioner, the health care provider, the provider’s insurer, 14 and the claimant cannot agree on the amount, if any, to be paid 15 out of the patient compensation fund, the court shall, after 16 hearing any relevant evidence on the issue of the claimant’s 17 damages submitted by any of the parties described in this 18 paragraph, determine the amount of the claimant’s damages, 19 if any, in excess of the two hundred fifty thousand dollars 20 already paid by the insurer of the health care provider. The 21 court shall determine the amount for which the fund is liable 22 and make a finding and judgment accordingly. In approving 23 a settlement or determining the amount, if any, to be paid 24 from the patient compensation fund, the court shall consider 25 the liability of the health care provider as admitted and 26 established. 27 f. A settlement approved by the court is not subject to 28 appeal. A judgment of the court fixing damages recoverable 29 in a contested proceeding is appealable pursuant to the rules 30 governing appeals in any other civil case tried by the court. 31 g. A release executed between the parties does not bar 32 access to the patient compensation fund unless the release 33 specifically provides otherwise. 34 5. If a health care provider or the health care provider’s 35 -29- LSB 1663XS (6) 87 av/nh 29/ 34

S.F. 206 surety or liability insurance carrier fails to pay any agreed 1 settlement or final judgment within ninety days, the agreed 2 settlement or final judgment shall be paid from the patient 3 compensation fund, and the fund shall be subrogated to any and 4 all of the claimant’s rights against the health care provider, 5 the health care provider’s surety or liability insurance 6 carrier, or both, with interest, reasonable costs, and attorney 7 fees. 8 Sec. 16. NEW SECTION . 519B.16 Evidence of advance payment 9 —— assignability of claim. 10 1. Except as provided in section 519B.15, any advance 11 payment made by the defendant health care provider or the 12 health care provider’s insurer to or for the plaintiff or 13 any other person shall not be construed as an admission of 14 liability for injuries or damages suffered by the plaintiff or 15 anyone else in an action brought for medical malpractice. 16 2. a. Evidence of an advance payment is not admissible 17 until there is a final judgment in favor of the plaintiff. 18 In this case, the court shall reduce the judgment to the 19 plaintiff to the extent of the advance payment. The advance 20 payment inures to the exclusive benefit of the defendant or the 21 defendant’s insurer making the payment. 22 b. If the advance payment exceeds the liability of the 23 defendant or the insurer making the advance payment, the court 24 shall order any adjustment necessary to equalize the amount 25 that each defendant is obligated to pay, exclusive of costs. 26 An advance payment in excess of an award is not repayable by 27 the person receiving the advance payment. 28 3. A patient’s claim for compensation under this chapter is 29 not assignable. 30 Sec. 17. NEW SECTION . 519B.17 Attorney fees. 31 1. When a plaintiff is represented by an attorney in the 32 prosecution of the plaintiff’s claim, the plaintiff’s attorney 33 fees from any award made from the patient compensation fund 34 shall not exceed fifteen percent of any recovery from the fund. 35 -30- LSB 1663XS (6) 87 av/nh 30/ 34

S.F. 206 2. A patient has the right to elect to pay for an attorney’s 1 services on a mutually satisfactory per diem basis. The 2 election, however, shall be exercised in written form at the 3 time of employment of the attorney. 4 EXPLANATION 5 The inclusion of this explanation does not constitute agreement with 6 the explanation’s substance by the members of the general assembly. 7 This bill creates new Code chapter 519B relating to medical 8 malpractice liability and insurance coverage in the state. 9 The bill applies to health care providers, including 10 individuals, hospitals, and health care facilities, that 11 qualify under the new Code chapter by establishing financial 12 responsibility and paying a surcharge. A health care provider 13 establishes financial responsibility by filing proof with 14 the commissioner of insurance that the provider has medical 15 malpractice insurance coverage of at least $250,000 per 16 occurrence and $750,000 in the annual aggregate. Health care 17 providers that are hospitals or health care facilities are 18 subject to different amounts based on the number of beds. 19 Financial responsibility can also be established by filing and 20 maintaining a surety bond, or if the provider is a hospital, by 21 submitting a verified financial statement. 22 Beginning January 1, 2018, the bill provides that an annual 23 surcharge shall be assessed on all health care providers that 24 seek to qualify under new Code chapter 519B in the state to 25 create a source of moneys for a patient compensation fund. 26 Beginning January 1, 2018, the amount of the annual surcharge 27 is 100 percent of the cost to each provider of maintaining 28 financial responsibility except that surcharges assessed 29 against physicians and hospitals are based on calculations 30 of actuarial risk. Beginning January 1, 2020, the annual 31 surcharge is to be set by rules adopted by the commissioner 32 that meet specified requirements. The surcharge is collected 33 on the same basis as premiums by each medical malpractice 34 insurer and remitted by each insurer to the commissioner for 35 -31- LSB 1663XS (6) 87 av/nh 31/ 34

S.F. 206 deposit into the patient compensation fund. 1 The patient compensation fund is established under the 2 custody of the treasurer of state and consists of payments to 3 the fund as well as accumulated interest and earnings. Moneys 4 in the fund shall be disbursed only for the purposes set forth 5 in the bill, including reimbursements to the attorney general 6 for representing the fund. 7 The bill provides that a patient must file a malpractice 8 claim within two years from the alleged act of malpractice 9 against a health care provider that has qualified under the 10 bill’s provisions. However, minors under the age of six have 11 until their eighth birthday to file. 12 An action for medical malpractice against a health care 13 provider who has qualified under the provisions of the bill 14 cannot be commenced in court until the claimant’s proposed 15 complaint has been presented to a medical review panel and 16 an opinion on the complaint has been rendered by the panel. 17 However, the parties can commence an action in court if the 18 parties agree to forgo submission to a medical review panel or 19 the claimant seeks damages of $15,000 or less. 20 Within 10 days after receiving a proposed complaint, the 21 commissioner must forward a copy of the complaint to each 22 health care provider named as a defendant. A medical review 23 panel may be established for the purpose of reviewing a 24 proposed malpractice complaint against a health care provider 25 qualified under the new Code chapter. Either party to the 26 proposed complaint can request the formation of a medical 27 review panel. 28 A medical review panel consists of one attorney, who acts 29 as the chair and is a nonvoting member, and three health care 30 providers. The attorney member is selected by the parties, 31 but if they cannot agree, then the clerk of the supreme court 32 generates a random list of five attorneys from which the 33 parties strike names alternately until one name remains. 34 All health care providers in the state, except health care 35 -32- LSB 1663XS (6) 87 av/nh 32/ 34

S.F. 206 facility administrators, must be available for selection 1 as panel members. Each party to the action is entitled to 2 select one health care provider, and upon selection, the two 3 health care providers select a third health care provider to 4 complete the panel. If there is a single defendant, two of the 5 panelists must be in the same health care profession as the 6 defendant. If the defendant specializes in a limited area, two 7 of the panelists must be specialists in that area. 8 The medical review panel is required to render an expert 9 opinion within 180 days after the selection of the last member 10 of the initial panel, or submit a report to the commissioner 11 stating the reason for the delay. Evidence that may be 12 submitted to the panel includes medical charts, x-rays, 13 lab tests, excerpts of treatises, depositions of witnesses, 14 including parties, and any other form of evidence allowed by 15 the panel. The panel may consult with medical authorities and 16 examine reports of other health care providers for information. 17 The chair of the panel provides advice on any legal questions 18 involved in the review and prepares the panel’s opinion. Any 19 party may informally convene the panel to question the panel 20 about issues to be decided. 21 Thirty days after completing its review, the panel must 22 render one or more of the following expert opinions: (1) the 23 evidence supports the conclusion that the defendant failed 24 to comply with the appropriate standard of care; (2) the 25 evidence does not support the conclusion that the defendant 26 failed to meet the appropriate standard of care; (3) there is a 27 material issue of fact not requiring expert opinion, bearing on 28 liability, for consideration by the court or jury; or (4) the 29 conduct complained of was or was not a factor in the resultant 30 damages and if so, any disability and its extent and duration, 31 and any permanent impairment and its percentage. 32 A report of the medical review panel is admissible in 33 evidence in any action subsequently brought by the plaintiff 34 in a court of law, although the expert opinion rendered is not 35 -33- LSB 1663XS (6) 87 av/nh 33/ 34

S.F. 206 conclusive. Panelists have absolute immunity from liability 1 for performing their duties. The bill specifies payment for 2 panelists and the chair. 3 The bill provides that a health care provider qualified 4 under the new Code chapter is not liable for an amount in 5 excess of $250,000 for an occurrence of malpractice. The total 6 amount recoverable for an injury or death of a patient cannot 7 exceed $1.25 million for an act of malpractice that occurs 8 after January 1, 2018. Any amount due against a health care 9 provider in excess of $250,000 and up to the capped amount is 10 paid from the patient compensation fund. Payments from the 11 patient compensation fund can be made in one lump sum, by an 12 agreement to make periodic payments over a period of years, 13 by purchase of an annuity payable to the patient, or by any 14 combination of the above. When a patient is represented by 15 an attorney in the prosecution of the patient’s claim, that 16 attorney’s fees from any award from the patient compensation 17 fund cannot exceed 15 percent of the recovery. A patient may 18 elect to pay the attorney on a mutually satisfactory per diem 19 basis pursuant to a written agreement. 20 -34- LSB 1663XS (6) 87 av/nh 34/ 34