SF 465 (LSB 1987SV (2) 87)

SENATE FILE 465

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO SSB 1087)

A BILL FOR

An Act relating to medical malpractice claims, including noneconomic damage awards, contingency fees, expert witnesses, and defenses.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 135P.1, subsection 2, Code 2017, is amended to read as follows:
   2.  “Health care provider” means a physician or osteopathic physician licensed under chapter 148, a physician assistant licensed under and practicing under a supervising physician pursuant to chapter 148C, a podiatrist licensed under chapter 149, or a chiropractor licensed under chapter 151, a licensed practical nurse, a registered nurse, or an advanced registered nurse practitioner licensed pursuant to under chapter 152 or 152E, a dentist licensed under chapter 153, an optometrist licensed under chapter 154, a pharmacist licensed under chapter 155A, or any other person who is licensed, certified, or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or in the practice of a profession.
    Sec. 2.  NEW SECTION.  147.136A  Noneconomic damage awards against health care providers.
   1.  For purposes of this section:
   a.  “Health care provider” means a physician or an osteopathic physician licensed under chapter 148, a chiropractor licensed under chapter 151, a podiatrist licensed under chapter 149, a physician assistant licensed and practicing under a supervising physician under chapter 148C, a licensed practical nurse, a registered nurse, or an advanced registered nurse practitioner licensed under chapter 152 or 152E, a dentist licensed under chapter 153, an optometrist licensed under chapter 154, a pharmacist licensed under chapter 155A, a hospital as defined in section 135B.1, or a health care facility as defined in section 135C.1.
   b.  “Health care services” means medical diagnosis, treatment, evaluation, advice, or acts that are permitted under chapter 148, 148C, 149, 152, 152E, 153, 154, or 155A, or any other health care licensing statutes of this state.
   c.  “Noneconomic damages” means damages arising from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, or any other nonpecuniary damages.
   2.  The total amount of noneconomic damages recoverable from all defendants in all civil actions, whether in tort, contract, or otherwise and including derivate actions, that arise out of an act or omission in connection with the provision of health care services shall not exceed two hundred fifty thousand dollars.
   3.  The limitation on damages contained in this section shall not apply as to a defendant if that defendant’s actions constituted actual malice.
    Sec. 3.  Section 147.138, Code 2017, is amended to read as follows:
   147.138  Contingent fee of attorney reviewed by court.
   1.  In any action for personal injury or wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor or nurse licensed under this chapter or against any hospital licensed under chapter 135B a health care provider, as defined in section 147.136A, based upon the alleged negligence of the licensee health care provider in the practice of that profession or occupation or in patient care, or upon the alleged negligence of the hospital in patient care, the court shall determine the reasonableness of any contingent fee arrangement between the plaintiff and the plaintiff’s attorney, which, subject to subsection 2, shall not exceed thirty-five percent of the total settlement or award.
   2.  Upon petition by the plaintiff or the plaintiff’s attorney, the court may permit an attorney fee in an amount greater than the amount allowed under subsection 1 if the court determines that the additional amount is fair and reasonable.
    Sec. 4.  Section 147.139, Code 2017, is amended to read as follows:
   147.139  Expert witness standards.
   1.  If the standard of care given by a physician and surgeon or an osteopathic physician and surgeon licensed pursuant to chapter 148, or a dentist licensed pursuant to chapter 153 health care provider, as defined in section 147.136A, is at issue, the court shall only allow a person to qualify as an expert witness and to testify on the issue of the appropriate standard of care if the person’s medical or dental qualifications relate directly to the medical problem or problems at issue and the type of treatment administered in the case., breach of the standard of care, or proximate cause if all of the following are true:
   a.  The person is licensed to practice in the same field as the defendant, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended.
   b.  In the five years preceding the act or omission alleged to be negligent, the person actively practiced in the same field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant.
   c.  The person practiced or provided university instruction in the same or substantially similar specialty as the defendant.
   d.  The person is trained and experienced in the same discipline or school of practice as the defendant or has specialty expertise in the disease process or procedure performed in the case.
   e.  If the defendant is board-certified in a specialty, the person is certified in the same specialty by a board recognized by the American board of medical specialties or the American osteopathic association.
   2.  A person not licensed in this state but licensed in another state who testifies on the issue of the appropriate standard of care, breach of the standard of care, or proximate cause as an expert witness shall be deemed to hold a temporary license to practice in this state solely for the purpose of and while providing such testimony and shall be subject to the authority of the applicable licensing board in this state including but not limited to the provisions of section 147.55.
    Sec. 5.  NEW SECTION.  147.140  Expert witness —— certificate of merit affidavit.
   1.  a.  In any action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice of that profession or occupation or in patient care, including a cause of action for which expert testimony is necessary to establish a prima facie case, the plaintiff shall, within ninety days of the defendant’s answer, serve upon the defendant a certificate of merit affidavit for each expert witness listed pursuant to section 668.11 who will testify with respect to the issues of standard of care, breach of standard of care, or causation. All expert witnesses must meet the qualifying standards of section 147.139.
   b.  A certificate of merit affidavit must be signed by the expert witness and certify the purpose for calling the expert witness by providing under the oath of the expert witness all of the following:
   (1)  The expert witness’s statement of familiarity with the applicable standard of care.
   (2)  The expert witness’s statement that the standard of care was breached by the health care provider named in the petition.
   (3)  The expert witness’s statement of the actions that the health care provider failed to take or should have taken to comply with the standard of care.
   (4)  The expert witness’s statement of the manner by which the breach of the standard of care was the cause of the injury alleged in the petition.
   c.  A plaintiff shall serve a separate certificate of merit affidavit on each defendant named in the petition.
   d.  Answers to interrogatories may serve as an expert witness’s certificate of merit affidavit in lieu of a separately executed affidavit if the interrogatories satisfy the requirements of this subsection and are signed by the plaintiff’s attorney and by each expert witness listed in the answers to interrogatories and served upon the defendant within ninety days of the defendant’s answer.
   2.  An expert witness’s certificate of merit affidavit does not preclude additional discovery and supplementation of the expert witness’s opinions in accordance with the rules of civil procedure.
   3.  The parties by agreement or the court for good cause shown and in response to a motion filed prior to the expiration of the time limits specified in subsection 1 may provide for extensions of the time limits. Good cause shall include but not be limited to the inability to timely obtain the plaintiff’s medical records from health care providers when requested prior to filing the petition.
   4.  If the plaintiff is acting pro se, the plaintiff shall sign the certificate of merit affidavit or answers to interrogatories referred to in this section and shall be bound by those provisions as if represented by an attorney.
   5.  a.  Failure to substantially comply with subsection 1 shall result, upon motion, in dismissal with prejudice of each cause of action as to which expert witness testimony is necessary to establish a prima facie case.
   b.  A written notice of deficiency may be served upon the plaintiff for failure to comply with subsection 1 because of deficiencies in the certificate of merit affidavit or answers to interrogatories. The notice shall state with particularity each deficiency of the affidavit or answers to interrogatories. The plaintiff shall have twenty days to cure the deficiency. Failure to comply within the twenty days shall result, upon motion, in mandatory dismissal with prejudice of each action as to which expert witness testimony is necessary to establish a prima facie case. A party resisting a motion for mandatory dismissal pursuant to this section shall have the right to request a hearing on the motion.
   6.  For purposes of this section, “health care provider” means the same as defined in section 147.136A.
    Sec. 6.  NEW SECTION.  622.31A  Evidence-based medical practice guidelines —— affirmative defense.
   1.  For purposes of this section:
   a.  “Evidence-based medical practice guidelines” means voluntary medical practice parameters or protocols established and released through a recognized physician consensus-building organization approved by the United States department of health and human services, the American medical association’s physician consortium for performance improvement or similar activity, or a recognized national medical specialty society.
   b.  “Health care provider” means the same as defined in section 147.136A.
   2.  In an action for personal injury or wrongful death against a health care provider based upon the alleged negligence in the practice of that profession or occupation or in patient care, the health care provider may establish as an affirmative defense that the health care provider complied with evidence-based medical practice guidelines in the diagnosis and treatment of the patient.
   3.  The court shall admit evidence-based medical practice guidelines into evidence if introduced by a health care provider or the health care provider’s employer and if the health care provider or the health care provider’s employer submits evidence that the evidence-based medical practice guidelines were appropriate for the patient and that the health care provider complied with such evidence-based medical practice guidelines. Evidence of departure from an evidence-based medical practice guideline is admissible only on the issue of whether the health care provider is entitled to establish an affirmative defense under this section.
   4.  This section shall not apply to any of the following:
   a.  The health care provider’s mistaken determination that an evidence-based medical practice guideline applied to a particular patient where such mistake was caused by the health care provider’s negligence or intentional misconduct.
   b.  The health care provider’s failure to properly follow an evidence-based medical practice guideline where such failure was caused by the health care provider’s negligence or intentional misconduct.
   5.  There shall be no presumption of negligence if a health care provider did not adhere to an evidence-based medical practice guideline.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to medical malpractice claims, including noneconomic damage awards, contingency fees, expert witnesses, and defenses.
   ADVERSE HEALTH CARE INCIDENTS. Under Code chapter 135P, if an adverse health care incident occurs, a health care provider may offer to engage in an open discussion with the patient. If the patient agrees, the health care provider may investigate the incident, disclose the results to the patient, and discuss steps the health care provider will take to prevent similar incidents. The health care provider may also communicate to the patient whether the health care provider believes that an offer of compensation is warranted. All communications made related to the open discussion are privileged and confidential, are not subject to discovery or subpoena, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding. Under current Code chapter 135P, “health care provider” is defined as a physician licensed under Code chapter 148, a physician assistant licensed under Code chapter 148C, a podiatrist licensed under Code chapter 149, or an advanced registered nurse practitioner licensed pursuant to Code chapter 152 or 152E. The bill redefines “health care provider” to mean a physician or osteopathic physician licensed under chapter 148, a physician assistant licensed and practicing under a supervising physician pursuant to chapter 148C, a podiatrist licensed under chapter 149, a chiropractor licensed under chapter 151, a licensed practical nurse, a registered nurse, or an advanced registered nurse practitioner licensed under chapter 152 or 152E, a dentist licensed under chapter 153, an optometrist licensed under chapter 154, a pharmacist licensed under chapter 155A, or any other person who is licensed, certified, or otherwise authorized or permitted by the law of this state to administer health care in the ordinary course of business or in the practice of a profession.
   NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE CASES. The bill defines “noneconomic damages” as damages arising from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, or any other nonpecuniary damages. The bill provides that the total amount of noneconomic damages recoverable from all defendants in all civil actions, whether in tort, contract, or otherwise and including derivate actions, that arise out of an act or omission in connection with the provision of health care services shall not exceed two hundred fifty thousand dollars. However, the limitation does not apply as to a defendant if that defendant’s actions constituted actual malice.
   CONTINGENCY FEES. Under current law, in any action for personal injury or wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, nurse, or hospital, based upon the alleged negligence of the licensee in the practice of that profession or occupation, or upon the alleged negligence of the hospital in patient care, the court determines the reasonableness of any contingent fee arrangement between the plaintiff and the plaintiff’s attorney. The bill provides that a court shall also review the reasonableness of a contingent fee in a negligence case involving an advanced registered nurse practitioner, physician assistant, or a residential care facility, a nursing facility, an intermediate care facility for persons with mental illness, or an intermediate care facility for persons with an intellectual disability. The bill also provides that the contingent fee shall not exceed 35 percent of the total settlement or award unless the plaintiff or the plaintiff’s attorney petitions the court for a greater amount and the court determines that the additional amount is fair and reasonable.
   EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES. The bill provides standards for an expert witness in a medical malpractice case. The bill provides that a person is only qualified to serve as an expert witness in a medical malpractice case if the person is a licensed health care provider, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended; in the five years preceding the act or omission alleged to be negligent, actively practiced in the same field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant; practiced or provided instruction in the same or substantially similar specialty as the defendant; is trained and experienced in the same discipline or school of practice as the defendant or has specialty expertise in the disease process or procedure performed in the case; and, if the defendant is board-certified in a specialty, the person is certified in the same specialty. 
   The bill provides that a person who is not licensed in Iowa but is licensed in another state and who testifies as an expert witness in a medical malpractice case shall be deemed to hold a temporary license to practice in Iowa and shall be subject to the authority of the applicable licensing board in Iowa including but not limited to Code section 147.55.
   The bill establishes a requirement for a certificate of merit affidavit for expert witnesses in medical malpractice cases. In an action for personal injury or wrongful death against a health care provider based upon alleged negligence in the practice of that profession or in patient care, the bill requires the plaintiff, within 90 days of the defendant’s answer, to serve upon the defendant a certificate of merit affidavit for each expert witness who will testify with respect to the issues of standard of care, breach of standard of care, or causation. A certificate of merit affidavit must be signed by the expert witness and certify the purpose for calling the expert witness by providing under the oath of the expert witness the expert witness’s statement of familiarity with the applicable standard of care; statement that the standard of care was breached by the health care provider; statement of the actions that the health care provider failed to take or should have taken; and statement of the manner by which the breach of the standard of care was the cause of the injury.
   The bill provides that answers to interrogatories may serve as an expert witness’s certificate of merit affidavit if the interrogatories satisfy the requirements of the bill. The bill provides that the expert witness’s certificate of merit affidavit does not preclude additional discovery and supplementation of the expert witness’s opinions.
   The bill provides that failure to substantially comply with the new requirements shall result, upon motion, in dismissal with prejudice of each cause of action as to which expert witness testimony is necessary to establish a prima facie case. A written notice of deficiency may be served upon the plaintiff for failure to comply with the bill requirements because of deficiencies in the certificate of merit affidavit or answers to interrogatories, and the plaintiff shall have 20 days to cure the deficiency. Failure to comply within the 20 days shall result, upon motion, in mandatory dismissal with prejudice of each action as to which expert witness testimony is necessary to establish a prima facie case. 
   EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill defines “evidence-based medical practice guidelines” as voluntary medical practice parameters or protocols established and released through a recognized physician consensus-building organization.
   The bill provides that in any action for personal injury or wrongful death against a health care provider based upon the alleged negligence of the health care provider in patient care, the health care provider may establish as an affirmative defense that the health care provider complied with evidence-based medical practice guidelines in the diagnosis and treatment of the patient.
   The bill provides that the court shall admit evidence-based medical practice guidelines into evidence if introduced by a health care provider or the health care provider’s employer and if the health care provider or the health care provider’s employer submits evidence that the evidence-based medical practice guideline was appropriate for the patient and that the health care provider complied with such evidence-based medical practice guidelines. Evidence of departure from a guideline is admissible only on the issue of whether the health care provider is entitled to establish an affirmative defense under the bill. There shall be no presumption of negligence if a health care provider did not adhere to an evidence-based medical practice guideline.