House File 490 - Reprinted HOUSE FILE 490 BY COMMITTEE ON COMMERCE (SUCCESSOR TO HSB 27) (As Amended and Passed by the House March 14, 2011 ) A BILL FOR An Act creating a certificate of merit affidavit in a medical 1 malpractice action. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 HF 490 (5) 84 rh/rj/mb

H.F. 490 Section 1. NEW SECTION . 147.140 Expert certificate of merit 1 affidavit —— health care providers —— requirements. 2 1. For purposes of this section, “health care provider” 3 means a physician or surgeon, osteopathic physician or 4 surgeon, dentist, podiatric physician, optometrist, pharmacist, 5 chiropractor, physician assistant, or nurse licensed in this 6 state, a hospital licensed pursuant to chapter 135B, or a 7 health care facility licensed pursuant to chapter 135C. 8 2. a. In any action for personal injury or wrongful 9 death against any health care provider based upon the alleged 10 negligence of the licensee in the practice of that profession 11 or occupation, or upon the alleged negligence of the hospital 12 or health care facility in patient care, which includes a cause 13 of action for which expert testimony is necessary to establish 14 a prima facie case, the plaintiff shall, within one hundred 15 eighty days of the defendant’s answer, serve upon the defendant 16 an expert’s certificate of merit affidavit for each expert 17 listed pursuant to section 668.11 who will testify with respect 18 to the issues of breach of standard of care or causation. 19 b. Each certificate of merit affidavit must be signed by 20 the expert. The affidavit must certify the purpose for calling 21 the expert by providing under the oath of the expert all of the 22 following: 23 (1) The expert’s statement of familiarity with the 24 applicable standard of care. 25 (2) The expert’s statement that the standard of care was 26 breached by the health care provider named in the petition. 27 (3) The expert’s statement of the actions that the health 28 care provider should have taken or failed to take to have 29 complied with the standard of care. 30 (4) The expert’s statement of the manner by which the breach 31 of the standard of care was the cause of the injury alleged in 32 the petition. 33 c. A plaintiff shall serve a separate affidavit on each 34 defendant named in the petition. 35 -1- HF 490 (5) 84 rh/rj/mb 1/ 3

H.F. 490 d. Answers to interrogatories may serve as an expert’s 1 certificate of merit affidavit in lieu of a separately executed 2 affidavit if the interrogatories satisfy the requirements of 3 this subsection and are signed by the plaintiff’s attorney and 4 by each expert listed in the answers to interrogatories and 5 served upon the defendant within one hundred eighty days of the 6 defendant’s answer. 7 3. The expert’s certificate of merit affidavit does not 8 preclude additional discovery and supplementation of the 9 expert’s opinions in accordance with the rules of civil 10 procedure. 11 4. The parties by agreement or the court for good cause 12 shown and in response to a motion filed prior to the expiration 13 of the time limits specified in subsection 2 may provide 14 for extensions of the time limits specified in subsection 15 2. Good cause shall include the inability to timely obtain 16 a plaintiff’s medical records from medical providers when 17 requested prior to filing suit and not produced. 18 5. If the plaintiff is acting pro se, the plaintiff shall 19 sign the affidavit or answers to interrogatories referred to 20 in this section and shall be bound by those provisions as if 21 represented by an attorney. 22 6. a. Failure to comply with subsection 2 shall result, 23 upon motion, in dismissal with prejudice of each cause of 24 action as to which expert testimony is necessary to establish a 25 prima facie case. 26 b. A written notice of deficiency may be served upon the 27 plaintiff for failure to comply with subsection 2 because of 28 deficiencies in the affidavit or answers to interrogatories. 29 The notice shall state with particularity each deficiency of 30 the affidavit or answers to interrogatories. The plaintiff 31 shall have twenty days to cure the deficiency. Failure to 32 comply within the twenty days shall result, upon motion, in 33 mandatory dismissal with prejudice of each action as to which 34 expert testimony is necessary to establish a prima facie case. 35 -2- HF 490 (5) 84 rh/rj/mb 2/ 3

H.F. 490 A party resisting a motion for mandatory dismissal pursuant to 1 this section shall have the right to request a hearing on the 2 motion. 3 -3- HF 490 (5) 84 rh/rj/mb 3/ 3