S.F. 465 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. NEW SECTION . 147.136A Noneconomic damage awards 16 against health care providers. 17 1. For purposes of this section: 18 a. “Health care provider” means a physician or an 19 osteopathic physician licensed under chapter 148, a 20 chiropractor licensed under chapter 151, a podiatrist 21 licensed under chapter 149, a physician assistant licensed and 22 practicing under a supervising physician under chapter 148C, a 23 licensed practical nurse, a registered nurse, or an advanced 24 registered nurse practitioner licensed under chapter 152 or 25 152E, a dentist licensed under chapter 153, an optometrist 26 licensed under chapter 154, a pharmacist licensed under chapter 27 155A, a hospital as defined in section 135B.1, or a health care 28 facility as defined in section 135C.1. 29 b. “Health care services” means medical diagnosis, 30 treatment, evaluation, advice, or acts that are permitted under 31 chapter 148, 148C, 149, 152, 152E, 153, 154, or 155A, or any 32 other health care licensing statutes of this state. 33 c. “Noneconomic damages” means damages arising from 34 pain, suffering, inconvenience, physical impairment, mental 35 -1- LSB 1987SV (2) 87 jh/nh 1/ 11

S.F. 465 anguish, emotional pain and suffering, loss of chance, loss of 1 consortium, or any other nonpecuniary damages. 2 2. The total amount of noneconomic damages recoverable from 3 all defendants in all civil actions, whether in tort, contract, 4 or otherwise and including derivate actions, that arise out of 5 an act or omission in connection with the provision of health 6 care services shall not exceed two hundred fifty thousand 7 dollars. 8 3. The limitation on damages contained in this section 9 shall not apply as to a defendant if that defendant’s actions 10 constituted actual malice. 11 Sec. 3. Section 147.138, Code 2017, is amended to read as 12 follows: 13 147.138 Contingent fee of attorney reviewed by court. 14 1. In any action for personal injury or wrongful death 15 against any physician and surgeon, osteopathic physician 16 and surgeon, dentist, podiatric physician, optometrist, 17 pharmacist, chiropractor or nurse licensed under this chapter 18 or against any hospital licensed under chapter 135B a health 19 care provider, as defined in section 147.136A , based upon the 20 alleged negligence of the licensee health care provider in the 21 practice of that profession or occupation or in patient care , 22 or upon the alleged negligence of the hospital in patient care, 23 the court shall determine the reasonableness of any contingent 24 fee arrangement between the plaintiff and the plaintiff’s 25 attorney , which, subject to subsection 2, shall not exceed 26 thirty-five percent of the total settlement or award . 27 2. Upon petition by the plaintiff or the plaintiff’s 28 attorney, the court may permit an attorney fee in an amount 29 greater than the amount allowed under subsection 1 if the court 30 determines that the additional amount is fair and reasonable. 31 Sec. 4. Section 147.139, Code 2017, is amended to read as 32 follows: 33 147.139 Expert witness standards. 34 1. If the standard of care given by a physician and surgeon 35 -2- LSB 1987SV (2) 87 jh/nh 2/ 11

S.F. 465 or an osteopathic physician and surgeon licensed pursuant 1 to chapter 148 , or a dentist licensed pursuant to chapter 2 153 health care provider, as defined in section 147.136A , 3 is at issue, the court shall only allow a person to qualify 4 as an expert witness and to testify on the issue of the 5 appropriate standard of care if the person’s medical or dental 6 qualifications relate directly to the medical problem or 7 problems at issue and the type of treatment administered in the 8 case. , breach of the standard of care, or proximate cause if 9 all of the following are true: 10 a. The person is licensed to practice in the same field as 11 the defendant, is in good standing in each state of licensure, 12 and in the five years preceding the act or omission alleged to 13 be negligent, has not had a license in any state revoked or 14 suspended. 15 b. In the five years preceding the act or omission alleged 16 to be negligent, the person actively practiced in the same 17 field as the defendant or was a qualified instructor at an 18 accredited university in the same field as the defendant. 19 c. The person practiced or provided university instruction 20 in the same or substantially similar specialty as the 21 defendant. 22 d. The person is trained and experienced in the same 23 discipline or school of practice as the defendant or has 24 specialty expertise in the disease process or procedure 25 performed in the case. 26 e. If the defendant is board-certified in a specialty, the 27 person is certified in the same specialty by a board recognized 28 by the American board of medical specialties or the American 29 osteopathic association. 30 2. A person not licensed in this state but licensed in 31 another state who testifies on the issue of the appropriate 32 standard of care, breach of the standard of care, or proximate 33 cause as an expert witness shall be deemed to hold a temporary 34 license to practice in this state solely for the purpose of 35 -3- LSB 1987SV (2) 87 jh/nh 3/ 11

S.F. 465 and while providing such testimony and shall be subject to 1 the authority of the applicable licensing board in this state 2 including but not limited to the provisions of section 147.55. 3 Sec. 5. NEW SECTION . 147.140 Expert witness —— certificate 4 of merit affidavit. 5 1. a. In any action for personal injury or wrongful 6 death against a health care provider based upon the alleged 7 negligence in the practice of that profession or occupation or 8 in patient care, including a cause of action for which expert 9 testimony is necessary to establish a prima facie case, the 10 plaintiff shall, within ninety days of the defendant’s answer, 11 serve upon the defendant a certificate of merit affidavit for 12 each expert witness listed pursuant to section 668.11 who will 13 testify with respect to the issues of standard of care, breach 14 of standard of care, or causation. All expert witnesses must 15 meet the qualifying standards of section 147.139. 16 b. A certificate of merit affidavit must be signed by the 17 expert witness and certify the purpose for calling the expert 18 witness by providing under the oath of the expert witness all 19 of the following: 20 (1) The expert witness’s statement of familiarity with the 21 applicable standard of care. 22 (2) The expert witness’s statement that the standard of care 23 was breached by the health care provider named in the petition. 24 (3) The expert witness’s statement of the actions that the 25 health care provider failed to take or should have taken to 26 comply with the standard of care. 27 (4) The expert witness’s statement of the manner by which 28 the breach of the standard of care was the cause of the injury 29 alleged in the petition. 30 c. A plaintiff shall serve a separate certificate of merit 31 affidavit on each defendant named in the petition. 32 d. Answers to interrogatories may serve as an expert 33 witness’s certificate of merit affidavit in lieu of a 34 separately executed affidavit if the interrogatories satisfy 35 -4- LSB 1987SV (2) 87 jh/nh 4/ 11

S.F. 465 the requirements of this subsection and are signed by the 1 plaintiff’s attorney and by each expert witness listed in the 2 answers to interrogatories and served upon the defendant within 3 ninety days of the defendant’s answer. 4 2. An expert witness’s certificate of merit affidavit does 5 not preclude additional discovery and supplementation of the 6 expert witness’s opinions in accordance with the rules of civil 7 procedure. 8 3. The parties by agreement or the court for good cause 9 shown and in response to a motion filed prior to the expiration 10 of the time limits specified in subsection 1 may provide for 11 extensions of the time limits. Good cause shall include 12 but not be limited to the inability to timely obtain the 13 plaintiff’s medical records from health care providers when 14 requested prior to filing the petition. 15 4. If the plaintiff is acting pro se, the plaintiff 16 shall sign the certificate of merit affidavit or answers to 17 interrogatories referred to in this section and shall be bound 18 by those provisions as if represented by an attorney. 19 5. a. Failure to substantially comply with subsection 20 1 shall result, upon motion, in dismissal with prejudice of 21 each cause of action as to which expert witness testimony is 22 necessary to establish a prima facie case. 23 b. A written notice of deficiency may be served upon the 24 plaintiff for failure to comply with subsection 1 because of 25 deficiencies in the certificate of merit affidavit or answers 26 to interrogatories. The notice shall state with particularity 27 each deficiency of the affidavit or answers to interrogatories. 28 The plaintiff shall have twenty days to cure the deficiency. 29 Failure to comply within the twenty days shall result, upon 30 motion, in mandatory dismissal with prejudice of each action 31 as to which expert witness testimony is necessary to establish 32 a prima facie case. A party resisting a motion for mandatory 33 dismissal pursuant to this section shall have the right to 34 request a hearing on the motion. 35 -5- LSB 1987SV (2) 87 jh/nh 5/ 11

S.F. 465 6. For purposes of this section, “health care provider” 1 means the same as defined in section 147.136A. 2 Sec. 6. NEW SECTION . 622.31A Evidence-based medical 3 practice guidelines —— affirmative defense. 4 1. For purposes of this section: 5 a. “Evidence-based medical practice guidelines” means 6 voluntary medical practice parameters or protocols established 7 and released through a recognized physician consensus-building 8 organization approved by the United States department of 9 health and human services, the American medical association’s 10 physician consortium for performance improvement or similar 11 activity, or a recognized national medical specialty society. 12 b. “Health care provider” means the same as defined in 13 section 147.136A. 14 2. In an action for personal injury or wrongful death 15 against a health care provider based upon the alleged 16 negligence in the practice of that profession or occupation or 17 in patient care, the health care provider may establish as an 18 affirmative defense that the health care provider complied with 19 evidence-based medical practice guidelines in the diagnosis and 20 treatment of the patient. 21 3. The court shall admit evidence-based medical practice 22 guidelines into evidence if introduced by a health care 23 provider or the health care provider’s employer and if the 24 health care provider or the health care provider’s employer 25 submits evidence that the evidence-based medical practice 26 guidelines were appropriate for the patient and that the 27 health care provider complied with such evidence-based 28 medical practice guidelines. Evidence of departure from an 29 evidence-based medical practice guideline is admissible only on 30 the issue of whether the health care provider is entitled to 31 establish an affirmative defense under this section. 32 4. This section shall not apply to any of the following: 33 a. The health care provider’s mistaken determination that 34 an evidence-based medical practice guideline applied to a 35 -6- LSB 1987SV (2) 87 jh/nh 6/ 11

S.F. 465 particular patient where such mistake was caused by the health 1 care provider’s negligence or intentional misconduct. 2 b. The health care provider’s failure to properly follow 3 an evidence-based medical practice guideline where such 4 failure was caused by the health care provider’s negligence or 5 intentional misconduct. 6 5. There shall be no presumption of negligence if a health 7 care provider did not adhere to an evidence-based medical 8 practice guideline. 9 EXPLANATION 10 The inclusion of this explanation does not constitute agreement with 11 the explanation’s substance by the members of the general assembly. 12 This bill relates to medical malpractice claims, including 13 noneconomic damage awards, contingency fees, expert witnesses, 14 and defenses. 15 ADVERSE HEALTH CARE INCIDENTS. Under Code chapter 135P, if 16 an adverse health care incident occurs, a health care provider 17 may offer to engage in an open discussion with the patient. If 18 the patient agrees, the health care provider may investigate 19 the incident, disclose the results to the patient, and discuss 20 steps the health care provider will take to prevent similar 21 incidents. The health care provider may also communicate to 22 the patient whether the health care provider believes that 23 an offer of compensation is warranted. All communications 24 made related to the open discussion are privileged and 25 confidential, are not subject to discovery or subpoena, and 26 are not admissible in evidence in a judicial, administrative, 27 or arbitration proceeding. Under current Code chapter 135P, 28 “health care provider” is defined as a physician licensed under 29 Code chapter 148, a physician assistant licensed under Code 30 chapter 148C, a podiatrist licensed under Code chapter 149, or 31 an advanced registered nurse practitioner licensed pursuant 32 to Code chapter 152 or 152E. The bill redefines “health 33 care provider” to mean a physician or osteopathic physician 34 licensed under chapter 148, a physician assistant licensed and 35 -7- LSB 1987SV (2) 87 jh/nh 7/ 11

S.F. 465 practicing under a supervising physician pursuant to chapter 1 148C, a podiatrist licensed under chapter 149, a chiropractor 2 licensed under chapter 151, a licensed practical nurse, a 3 registered nurse, or an advanced registered nurse practitioner 4 licensed under chapter 152 or 152E, a dentist licensed under 5 chapter 153, an optometrist licensed under chapter 154, a 6 pharmacist licensed under chapter 155A, or any other person who 7 is licensed, certified, or otherwise authorized or permitted by 8 the law of this state to administer health care in the ordinary 9 course of business or in the practice of a profession. 10 NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE CASES. The 11 bill defines “noneconomic damages” as damages arising from 12 pain, suffering, inconvenience, physical impairment, mental 13 anguish, emotional pain and suffering, loss of chance, 14 loss of consortium, or any other nonpecuniary damages. The 15 bill provides that the total amount of noneconomic damages 16 recoverable from all defendants in all civil actions, whether 17 in tort, contract, or otherwise and including derivate actions, 18 that arise out of an act or omission in connection with the 19 provision of health care services shall not exceed two hundred 20 fifty thousand dollars. However, the limitation does not apply 21 as to a defendant if that defendant’s actions constituted 22 actual malice. 23 CONTINGENCY FEES. Under current law, in any action for 24 personal injury or wrongful death against any physician and 25 surgeon, osteopathic physician and surgeon, dentist, podiatric 26 physician, optometrist, pharmacist, chiropractor, nurse, or 27 hospital, based upon the alleged negligence of the licensee 28 in the practice of that profession or occupation, or upon the 29 alleged negligence of the hospital in patient care, the court 30 determines the reasonableness of any contingent fee arrangement 31 between the plaintiff and the plaintiff’s attorney. The bill 32 provides that a court shall also review the reasonableness of 33 a contingent fee in a negligence case involving an advanced 34 registered nurse practitioner, physician assistant, or a 35 -8- LSB 1987SV (2) 87 jh/nh 8/ 11

S.F. 465 residential care facility, a nursing facility, an intermediate 1 care facility for persons with mental illness, or an 2 intermediate care facility for persons with an intellectual 3 disability. The bill also provides that the contingent fee 4 shall not exceed 35 percent of the total settlement or award 5 unless the plaintiff or the plaintiff’s attorney petitions the 6 court for a greater amount and the court determines that the 7 additional amount is fair and reasonable. 8 EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES. The 9 bill provides standards for an expert witness in a medical 10 malpractice case. The bill provides that a person is 11 only qualified to serve as an expert witness in a medical 12 malpractice case if the person is a licensed health care 13 provider, is in good standing in each state of licensure, and 14 in the five years preceding the act or omission alleged to 15 be negligent, has not had a license in any state revoked or 16 suspended; in the five years preceding the act or omission 17 alleged to be negligent, actively practiced in the same field 18 as the defendant or was a qualified instructor at an accredited 19 university in the same field as the defendant; practiced or 20 provided instruction in the same or substantially similar 21 specialty as the defendant; is trained and experienced in the 22 same discipline or school of practice as the defendant or 23 has specialty expertise in the disease process or procedure 24 performed in the case; and, if the defendant is board-certified 25 in a specialty, the person is certified in the same specialty. 26 The bill provides that a person who is not licensed in Iowa 27 but is licensed in another state and who testifies as an expert 28 witness in a medical malpractice case shall be deemed to hold 29 a temporary license to practice in Iowa and shall be subject 30 to the authority of the applicable licensing board in Iowa 31 including but not limited to Code section 147.55. 32 The bill establishes a requirement for a certificate of 33 merit affidavit for expert witnesses in medical malpractice 34 cases. In an action for personal injury or wrongful death 35 -9- LSB 1987SV (2) 87 jh/nh 9/ 11

S.F. 465 against a health care provider based upon alleged negligence 1 in the practice of that profession or in patient care, the 2 bill requires the plaintiff, within 90 days of the defendant’s 3 answer, to serve upon the defendant a certificate of merit 4 affidavit for each expert witness who will testify with respect 5 to the issues of standard of care, breach of standard of care, 6 or causation. A certificate of merit affidavit must be signed 7 by the expert witness and certify the purpose for calling 8 the expert witness by providing under the oath of the expert 9 witness the expert witness’s statement of familiarity with the 10 applicable standard of care; statement that the standard of 11 care was breached by the health care provider; statement of the 12 actions that the health care provider failed to take or should 13 have taken; and statement of the manner by which the breach of 14 the standard of care was the cause of the injury. 15 The bill provides that answers to interrogatories may 16 serve as an expert witness’s certificate of merit affidavit 17 if the interrogatories satisfy the requirements of the bill. 18 The bill provides that the expert witness’s certificate of 19 merit affidavit does not preclude additional discovery and 20 supplementation of the expert witness’s opinions. 21 The bill provides that failure to substantially comply with 22 the new requirements shall result, upon motion, in dismissal 23 with prejudice of each cause of action as to which expert 24 witness testimony is necessary to establish a prima facie 25 case. A written notice of deficiency may be served upon the 26 plaintiff for failure to comply with the bill requirements 27 because of deficiencies in the certificate of merit affidavit 28 or answers to interrogatories, and the plaintiff shall have 20 29 days to cure the deficiency. Failure to comply within the 20 30 days shall result, upon motion, in mandatory dismissal with 31 prejudice of each action as to which expert witness testimony 32 is necessary to establish a prima facie case. 33 EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill 34 defines “evidence-based medical practice guidelines” as 35 -10- LSB 1987SV (2) 87 jh/nh 10/ 11

S.F. 465 voluntary medical practice parameters or protocols established 1 and released through a recognized physician consensus-building 2 organization. 3 The bill provides that in any action for personal injury 4 or wrongful death against a health care provider based 5 upon the alleged negligence of the health care provider in 6 patient care, the health care provider may establish as an 7 affirmative defense that the health care provider complied with 8 evidence-based medical practice guidelines in the diagnosis and 9 treatment of the patient. 10 The bill provides that the court shall admit evidence-based 11 medical practice guidelines into evidence if introduced by a 12 health care provider or the health care provider’s employer 13 and if the health care provider or the health care provider’s 14 employer submits evidence that the evidence-based medical 15 practice guideline was appropriate for the patient and that 16 the health care provider complied with such evidence-based 17 medical practice guidelines. Evidence of departure from a 18 guideline is admissible only on the issue of whether the health 19 care provider is entitled to establish an affirmative defense 20 under the bill. There shall be no presumption of negligence 21 if a health care provider did not adhere to an evidence-based 22 medical practice guideline. 23 -11- LSB 1987SV (2) 87 jh/nh 11/ 11