Senate File 465 - Reprinted SENATE FILE 465 BY COMMITTEE ON JUDICIARY (SUCCESSOR TO SSB 1087) (As Amended and Passed by the Senate March 20, 2017 ) A BILL FOR An Act relating to medical malpractice claims, including 1 noneconomic damage awards and expert witnesses. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 SF 465 (5) 87 jh/nh/jh

S.F. 465 Section 1. Section 135P.1, subsections 1 and 2, Code 2017, 1 are amended to read as follows: 2 1. “Adverse health care incident” means an objective and 3 definable outcome arising from or related to patient care that 4 results in the death or serious physical injury of a patient. 5 2. “Health care provider” means a physician or osteopathic 6 physician licensed under chapter 148 , a physician assistant 7 licensed under and practicing under a supervising physician 8 pursuant to chapter 148C , a podiatrist licensed under chapter 9 149 , or a chiropractor licensed under chapter 151, a licensed 10 practical nurse, a registered nurse, or an advanced registered 11 nurse practitioner licensed pursuant to under chapter 152 or 12 152E , a dentist licensed under chapter 153, an optometrist 13 licensed under chapter 154, a pharmacist licensed under chapter 14 155A, or any other person who is licensed, certified, or 15 otherwise authorized or permitted by the law of this state to 16 administer health care in the ordinary course of business or in 17 the practice of a profession . 18 Sec. 2. NEW SECTION . 147.136A Noneconomic damage awards 19 against health care providers. 20 1. For purposes of this section: 21 a. “Health care provider” means a physician or an 22 osteopathic physician licensed under chapter 148, a 23 chiropractor licensed under chapter 151, a podiatrist 24 licensed under chapter 149, a physician assistant licensed and 25 practicing under a supervising physician under chapter 148C, a 26 licensed practical nurse, a registered nurse, or an advanced 27 registered nurse practitioner licensed under chapter 152 or 28 152E, a dentist licensed under chapter 153, an optometrist 29 licensed under chapter 154, a pharmacist licensed under chapter 30 155A, a hospital as defined in section 135B.1, a health care 31 facility as defined in section 135C.1, a health facility as 32 defined in section 135P.1, a professional corporation under 33 chapter 496C that is owned by persons licensed to practice a 34 profession listed in this paragraph, or any other person or 35 -1- SF 465 (5) 87 jh/nh/jh 1/ 5

S.F. 465 entity who is licensed, certified, or otherwise authorized or 1 permitted by the law of this state to administer health care 2 in the ordinary course of business or in the practice of a 3 profession. 4 b. “Health care services” means medical diagnosis, 5 treatment, evaluation, advice, or acts that are permitted under 6 chapter 148, 148C, 149, 152, 152E, 153, 154, or 155A, or any 7 other health care licensing statutes of this state. 8 c. “Noneconomic damages” means damages arising from 9 pain, suffering, inconvenience, physical impairment, mental 10 anguish, emotional pain and suffering, loss of chance, loss of 11 consortium, or any other nonpecuniary damages. 12 d. “Occurrence” means the event, incident, or happening, 13 and the acts or omissions incident thereto, which proximately 14 caused injuries or damages for which recovery is claimed by the 15 patient or the patient’s representative. 16 2. The total amount recoverable in any civil action for 17 noneconomic damages for personal injury or death, whether in 18 tort, contract, or otherwise, against a health care provider 19 shall be limited to two hundred fifty thousand dollars for any 20 occurrence resulting in injury or death of a patient regardless 21 of the number of plaintiffs, derivative claims, theories of 22 liability, or defendants in the civil action. 23 3. The limitation on damages contained in this section 24 shall not apply as to a defendant if that defendant’s actions 25 constituted actual malice. 26 Sec. 3. Section 147.139, Code 2017, is amended to read as 27 follows: 28 147.139 Expert witness standards. 29 If the standard of care given by a physician and surgeon 30 or an osteopathic physician and surgeon licensed pursuant 31 to chapter 148 , or a dentist licensed pursuant to chapter 32 153 health care provider, as defined in section 147.136A , is 33 at issue, the court shall only allow a person the plaintiff 34 designates as an expert witness to qualify as an expert witness 35 -2- SF 465 (5) 87 jh/nh/jh 2/ 5

S.F. 465 and to testify on the issue of the appropriate standard of 1 care if the person’s medical or dental qualifications relate 2 directly to the medical problem or problems at issue and the 3 type of treatment administered in the case. or breach of the 4 standard of care if all of the following are established by the 5 evidence: 6 1. The person is licensed to practice in the same or a 7 substantially similar field as the defendant, is in good 8 standing in each state of licensure, and in the five years 9 preceding the act or omission alleged to be negligent, has not 10 had a license in any state revoked or suspended. 11 2. In the five years preceding the act or omission alleged 12 to be negligent, the person actively practiced in the same or a 13 substantially similar field as the defendant or was a qualified 14 instructor at an accredited university in the same field as the 15 defendant. 16 3. If the defendant is board-certified in a specialty, the 17 person is certified in the same or a substantially similar 18 specialty by a board recognized by the American board of 19 medical specialties or the American osteopathic association. 20 4. If the defendant is a licensed physician or osteopathic 21 physician under chapter 148, the person is a physician or 22 osteopathic physician licensed in this state or another state. 23 Sec. 4. NEW SECTION . 147.140 Expert witness —— certificate 24 of merit affidavit. 25 1. a. In any action for personal injury or wrongful 26 death against a health care provider based upon the alleged 27 negligence in the practice of that profession or occupation or 28 in patient care, which includes a cause of action for which 29 expert testimony is necessary to establish a prima facie case, 30 the plaintiff shall, prior to the commencement of discovery in 31 the case and within sixty days of the defendant’s answer, serve 32 upon the defendant a certificate of merit affidavit signed by 33 an expert witness with respect to the issue of standard of care 34 and an alleged breach of the standard of care. The expert 35 -3- SF 465 (5) 87 jh/nh/jh 3/ 5

S.F. 465 witness must meet the qualifying standards of section 147.139. 1 b. A certificate of merit affidavit must be signed by the 2 expert witness and certify the purpose for calling the expert 3 witness by providing under the oath of the expert witness all 4 of the following: 5 (1) The expert witness’s statement of familiarity with the 6 applicable standard of care. 7 (2) The expert witness’s statement that the standard of care 8 was breached by the health care provider named in the petition. 9 c. A plaintiff shall serve a separate certificate of merit 10 affidavit on each defendant named in the petition. 11 2. An expert witness’s certificate of merit affidavit does 12 not preclude additional discovery and supplementation of the 13 expert witness’s opinions in accordance with the rules of civil 14 procedure. 15 3. The parties shall comply with the requirements of section 16 668.11 and all other applicable law governing certification and 17 disclosure of expert witnesses. 18 4. The parties by agreement or the court for good cause 19 shown and in response to a motion filed prior to the expiration 20 of the time limits specified in subsection 1 may provide for 21 extensions of the time limits. Good cause shall include 22 but not be limited to the inability to timely obtain the 23 plaintiff’s medical records from health care providers when 24 requested prior to filing the petition. 25 5. If the plaintiff is acting pro se, the plaintiff shall 26 have the expert witness sign the certificate of merit affidavit 27 or answers to interrogatories referred to in this section 28 and the plaintiff shall be bound by those provisions as if 29 represented by an attorney. 30 6. Failure to substantially comply with subsection 1 shall 31 result, upon motion, in dismissal with prejudice of each cause 32 of action as to which expert witness testimony is necessary to 33 establish a prima facie case. 34 7. For purposes of this section, “health care provider” 35 -4- SF 465 (5) 87 jh/nh/jh 4/ 5

S.F. 465 means the same as defined in section 147.136A. 1 -5- SF 465 (5) 87 jh/nh/jh 5/ 5