Print
Senate Study Bill 1087 - IntroducedA Bill ForAn Act 1relating to medical malpractice claims, including
2noneconomic damage awards, contingency fees, expert
3witnesses, and defenses.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 135P.1, subsection 2, Code 2017, is
2amended to read as follows:
32. “Health care provider” means a physician or osteopathic
4physician licensed under chapter 148, a physician assistant
5licensed under and practicing under a supervising physician
6pursuant to chapter 148C, a podiatrist licensed under chapter
7149, or a chiropractor licensed under chapter 151, a licensed
8practical nurse, a registered nurse, or an advanced registered
9nurse practitioner licensed pursuant to under chapter 152 or
10152E, a dentist licensed under chapter 153, an optometrist
11licensed under chapter 154, a pharmacist licensed under chapter
12155A, or any other person who is licensed, certified, or
13otherwise authorized or permitted by the law of this state to
14administer health care in the ordinary course of business or in
15the practice of a profession.
16 Sec. 2. NEW SECTION. 147.136A Noneconomic damage awards
17against health care providers.
181. For purposes of this section:
19a. “Health care provider” means a physician or an
20osteopathic physician licensed under chapter 148, a
21chiropractor licensed under chapter 151, a podiatrist
22licensed under chapter 149, a physician assistant licensed and
23practicing under a supervising physician under chapter 148C, a
24licensed practical nurse, a registered nurse, or an advanced
25registered nurse practitioner licensed under chapter 152 or
26152E, a dentist licensed under chapter 153, an optometrist
27licensed under chapter 154, a pharmacist licensed under chapter
28155A, a hospital as defined in section 135B.1, or a health care
29facility as defined in section 135C.1.
30b. “Health care services” means medical diagnosis,
31treatment, evaluation, advice, or acts that are permitted under
32chapter 148, 148C, 149, 152, 152E, 153, 154, or 155A, or any
33other health care licensing statutes of this state.
34c. “Noneconomic damages” means damages arising from
35pain, suffering, inconvenience, physical impairment, mental
-1-1anguish, emotional pain and suffering, loss of chance, loss of
2consortium, or any other nonpecuniary damages.
32. The total amount of noneconomic damages recoverable from
4all defendants in all civil actions, whether in tort, contract,
5or otherwise and including derivate actions, that arise out of
6an act or omission in connection with the provision of health
7care services shall not exceed two hundred fifty thousand
8dollars.
93. The limitation on damages contained in this section
10shall not apply as to a defendant if that defendant’s actions
11constituted actual malice.
12 Sec. 3. Section 147.138, Code 2017, is amended to read as
13follows:
14147.138 Contingent fee of attorney reviewed by court.
151. In any action for personal injury or wrongful death
16against any physician and surgeon, osteopathic physician
17and surgeon, dentist, podiatric physician, optometrist,
18pharmacist, chiropractor or nurse licensed under this chapter
19 or against any hospital licensed under chapter 135B a health
20care provider, as defined in section 147.136A, based upon the
21alleged negligence of the licensee health care provider in the
22practice of that profession or occupation or in patient care,
23or upon the alleged negligence of the hospital in patient care,
24 the court shall determine the reasonableness of any contingent
25fee arrangement between the plaintiff and the plaintiff’s
26attorney, which, subject to subsection 2, shall not exceed
27thirty-five percent of the total settlement or award.
282. Upon petition by the plaintiff or the plaintiff’s
29attorney, the court may permit an attorney fee in an amount
30greater than the amount allowed under subsection 1 if the court
31determines that the additional amount is fair and reasonable.
32 Sec. 4. Section 147.139, Code 2017, is amended to read as
33follows:
34147.139 Expert witness standards.
351. If the standard of care given by a physician and surgeon
-2-1or an osteopathic physician and surgeon licensed pursuant
2to chapter 148, or a dentist licensed pursuant to chapter
3153 health care provider, as defined in section 147.136A,
4is at issue, the court shall only allow a person to qualify
5as an expert witness and to testify on the issue of the
6appropriate standard of care if the person’s medical or dental
7qualifications relate directly to the medical problem or
8problems at issue and the type of treatment administered in the
9case., breach of the standard of care, or proximate cause if
10all of the following are true:
11a. The person is licensed to practice in the same field as
12the defendant, is in good standing in each state of licensure,
13and in the five years preceding the act or omission alleged to
14be negligent, has not had a license in any state revoked or
15suspended.
16b. In the five years preceding the act or omission alleged
17to be negligent, the person actively practiced in the same
18field as the defendant or was a qualified instructor at an
19accredited university in the same field as the defendant.
20c. The person practiced or provided university instruction
21in the same or substantially similar specialty as the
22defendant.
23d. The person is trained and experienced in the same
24discipline or school of practice as the defendant or has
25specialty expertise in the disease process or procedure
26performed in the case.
27e. If the defendant is board-certified in a specialty, the
28person is certified in the same specialty by a board recognized
29by the American board of medical specialties or the American
30osteopathic association.
312. A person not licensed in this state but licensed in
32another state who testifies on the issue of the appropriate
33standard of care, breach of the standard of care, or proximate
34cause as an expert witness shall be deemed to hold a temporary
35license to practice in this state solely for the purpose of
-3-1and while providing such testimony and shall be subject to
2the authority of the applicable licensing board in this state
3including but not limited to the provisions of section 147.55.
4 Sec. 5. NEW SECTION. 147.140 Expert witness — certificate
5of merit affidavit.
61. a. In any action for personal injury or wrongful
7death against a health care provider based upon the alleged
8negligence in the practice of that profession or occupation or
9in patient care, including a cause of action for which expert
10testimony is necessary to establish a prima facie case, the
11plaintiff shall, within ninety days of the defendant’s answer,
12serve upon the defendant a certificate of merit affidavit for
13each expert witness listed pursuant to section 668.11 who will
14testify with respect to the issues of standard of care, breach
15of standard of care, or causation. All expert witnesses must
16meet the qualifying standards of section 147.139.
17b. A certificate of merit affidavit must be signed by the
18expert witness and certify the purpose for calling the expert
19witness by providing under the oath of the expert witness all
20of the following:
21(1) The expert witness’s statement of familiarity with the
22applicable standard of care.
23(2) The expert witness’s statement that the standard of care
24was breached by the health care provider named in the petition.
25(3) The expert witness’s statement of the actions that the
26health care provider failed to take or should have taken to
27comply with the standard of care.
28(4) The expert witness’s statement of the manner by which
29the breach of the standard of care was the cause of the injury
30alleged in the petition.
31c. A plaintiff shall serve a separate certificate of merit
32affidavit on each defendant named in the petition.
33d. Answers to interrogatories may serve as an expert
34witness’s certificate of merit affidavit in lieu of a
35separately executed affidavit if the interrogatories satisfy
-4-1the requirements of this subsection and are signed by the
2plaintiff’s attorney and by each expert witness listed in the
3answers to interrogatories and served upon the defendant within
4ninety days of the defendant’s answer.
52. An expert witness’s certificate of merit affidavit does
6not preclude additional discovery and supplementation of the
7expert witness’s opinions in accordance with the rules of civil
8procedure.
93. The parties by agreement or the court for good cause
10shown and in response to a motion filed prior to the expiration
11of the time limits specified in subsection 1 may provide for
12extensions of the time limits. Good cause shall include
13but not be limited to the inability to timely obtain the
14plaintiff’s medical records from health care providers when
15requested prior to filing the petition.
164. If the plaintiff is acting pro se, the plaintiff
17shall sign the certificate of merit affidavit or answers to
18interrogatories referred to in this section and shall be bound
19by those provisions as if represented by an attorney.
205. a. Failure to substantially comply with subsection
211 shall result, upon motion, in dismissal with prejudice of
22each cause of action as to which expert witness testimony is
23necessary to establish a prima facie case.
24b. A written notice of deficiency may be served upon the
25plaintiff for failure to comply with subsection 1 because of
26deficiencies in the certificate of merit affidavit or answers
27to interrogatories. The notice shall state with particularity
28each deficiency of the affidavit or answers to interrogatories.
29The plaintiff shall have twenty days to cure the deficiency.
30Failure to comply within the twenty days shall result, upon
31motion, in mandatory dismissal with prejudice of each action
32as to which expert witness testimony is necessary to establish
33a prima facie case. A party resisting a motion for mandatory
34dismissal pursuant to this section shall have the right to
35request a hearing on the motion.
-5- 16. For purposes of this section, “health care provider”
2means the same as defined in section 147.136A.
3 Sec. 6. NEW SECTION. 622.31A Evidence-based medical
4practice guidelines — affirmative defense.
51. For purposes of this section:
6a. “Evidence-based medical practice guidelines” means
7voluntary medical practice parameters or protocols established
8and released through a recognized physician consensus-building
9organization approved by the United States department of
10health and human services, the American medical association’s
11physician consortium for performance improvement or similar
12activity, or a recognized national medical specialty society.
13b. “Health care provider” means the same as defined in
14section 147.136A.
152. In an action for personal injury or wrongful death
16against a health care provider based upon the alleged
17negligence in the practice of that profession or occupation or
18in patient care, the health care provider may establish as an
19affirmative defense that the health care provider complied with
20evidence-based medical practice guidelines in the diagnosis and
21treatment of the patient.
223. The court shall admit evidence-based medical practice
23guidelines into evidence if introduced by a health care
24provider or the health care provider’s employer and if the
25health care provider or the health care provider’s employer
26submits evidence that the evidence-based medical practice
27guidelines were appropriate for the patient and that the
28health care provider complied with such evidence-based
29medical practice guidelines. Evidence of departure from an
30evidence-based medical practice guideline is admissible only on
31the issue of whether the health care provider is entitled to
32establish an affirmative defense under this section.
334. This section shall not apply to any of the following:
34a. The health care provider’s mistaken determination that
35an evidence-based medical practice guideline applied to a
-6-1particular patient where such mistake was caused by the health
2care provider’s negligence or intentional misconduct.
3b. The health care provider’s failure to properly follow
4an evidence-based medical practice guideline where such
5failure was caused by the health care provider’s negligence or
6intentional misconduct.
75. There shall be no presumption of negligence if a health
8care provider did not adhere to an evidence-based medical
9practice guideline.
10EXPLANATION
11The inclusion of this explanation does not constitute agreement with
12the explanation’s substance by the members of the general assembly.
13This bill relates to medical malpractice claims, including
14noneconomic damage awards, contingency fees, expert witnesses,
15and defenses.
16ADVERSE HEALTH CARE INCIDENTS. Under Code chapter 135P, if
17an adverse health care incident occurs, a health care provider
18may offer to engage in an open discussion with the patient. If
19the patient agrees, the health care provider may investigate
20the incident, disclose the results to the patient, and discuss
21steps the health care provider will take to prevent similar
22incidents. The health care provider may also communicate to
23the patient whether the health care provider believes that
24an offer of compensation is warranted. All communications
25made related to the open discussion are privileged and
26confidential, are not subject to discovery or subpoena, and
27are not admissible in evidence in a judicial, administrative,
28or arbitration proceeding. Under current Code chapter 135P,
29“health care provider” is defined as a physician licensed under
30Code chapter 148, a physician assistant licensed under Code
31chapter 148C, a podiatrist licensed under Code chapter 149, or
32an advanced registered nurse practitioner licensed pursuant
33to Code chapter 152 or 152E. The bill redefines “health
34care provider” to mean a physician or osteopathic physician
35licensed under chapter 148, a physician assistant licensed and
-7-1practicing under a supervising physician pursuant to chapter
2148C, a podiatrist licensed under chapter 149, a chiropractor
3licensed under chapter 151, a licensed practical nurse, a
4registered nurse, or an advanced registered nurse practitioner
5licensed under chapter 152 or 152E, a dentist licensed under
6chapter 153, an optometrist licensed under chapter 154, a
7pharmacist licensed under chapter 155A, or any other person who
8is licensed, certified, or otherwise authorized or permitted by
9the law of this state to administer health care in the ordinary
10course of business or in the practice of a profession.
11NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE CASES. The
12bill defines “noneconomic damages” as damages arising from
13pain, suffering, inconvenience, physical impairment, mental
14anguish, emotional pain and suffering, loss of chance,
15loss of consortium, or any other nonpecuniary damages. The
16bill provides that the total amount of noneconomic damages
17recoverable from all defendants in all civil actions, whether
18in tort, contract, or otherwise and including derivate actions,
19that arise out of an act or omission in connection with the
20provision of health care services shall not exceed two hundred
21fifty thousand dollars. However, the limitation does not apply
22as to a defendant if that defendant’s actions constituted
23actual malice.
24CONTINGENCY FEES. Under current law, in any action for
25personal injury or wrongful death against any physician and
26surgeon, osteopathic physician and surgeon, dentist, podiatric
27physician, optometrist, pharmacist, chiropractor, nurse, or
28hospital, based upon the alleged negligence of the licensee
29in the practice of that profession or occupation, or upon the
30alleged negligence of the hospital in patient care, the court
31determines the reasonableness of any contingent fee arrangement
32between the plaintiff and the plaintiff’s attorney. The bill
33provides that a court shall also review the reasonableness of
34a contingent fee in a negligence case involving an advanced
35registered nurse practitioner, physician assistant, or a
-8-1residential care facility, a nursing facility, an intermediate
2care facility for persons with mental illness, or an
3intermediate care facility for persons with an intellectual
4disability. The bill also provides that the contingent fee
5shall not exceed 35 percent of the total settlement or award
6unless the plaintiff or the plaintiff’s attorney petitions the
7court for a greater amount and the court determines that the
8additional amount is fair and reasonable.
9EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES. The
10bill provides standards for an expert witness in a medical
11malpractice case. The bill provides that a person is
12only qualified to serve as an expert witness in a medical
13malpractice case if the person is a licensed health care
14provider, is in good standing in each state of licensure, and
15in the five years preceding the act or omission alleged to
16be negligent, has not had a license in any state revoked or
17suspended; in the five years preceding the act or omission
18alleged to be negligent, actively practiced in the same field
19as the defendant or was a qualified instructor at an accredited
20university in the same field as the defendant; practiced or
21provided instruction in the same or substantially similar
22specialty as the defendant; is trained and experienced in the
23same discipline or school of practice as the defendant or
24has specialty expertise in the disease process or procedure
25performed in the case; and, if the defendant is board-certified
26in a specialty, the person is certified in the same specialty.
27The bill provides that a person who is not licensed in Iowa
28but is licensed in another state and who testifies as an expert
29witness in a medical malpractice case shall be deemed to hold
30a temporary license to practice in Iowa and shall be subject
31to the authority of the applicable licensing board in Iowa
32including but not limited to Code section 147.55.
33The bill establishes a requirement for a certificate of
34merit affidavit for expert witnesses in medical malpractice
35cases. In an action for personal injury or wrongful death
-9-1against a health care provider based upon alleged negligence
2in the practice of that profession or in patient care, the
3bill requires the plaintiff, within 90 days of the defendant’s
4answer, to serve upon the defendant a certificate of merit
5affidavit for each expert witness who will testify with respect
6to the issues of standard of care, breach of standard of care,
7or causation. A certificate of merit affidavit must be signed
8by the expert witness and certify the purpose for calling
9the expert witness by providing under the oath of the expert
10witness the expert witness’s statement of familiarity with the
11applicable standard of care; statement that the standard of
12care was breached by the health care provider; statement of the
13actions that the health care provider failed to take or should
14have taken; and statement of the manner by which the breach of
15the standard of care was the cause of the injury.
16The bill provides that answers to interrogatories may
17serve as an expert witness’s certificate of merit affidavit
18if the interrogatories satisfy the requirements of the bill.
19The bill provides that the expert witness’s certificate of
20merit affidavit does not preclude additional discovery and
21supplementation of the expert witness’s opinions.
22The bill provides that failure to substantially comply with
23the new requirements shall result, upon motion, in dismissal
24with prejudice of each cause of action as to which expert
25witness testimony is necessary to establish a prima facie
26case. A written notice of deficiency may be served upon the
27plaintiff for failure to comply with the bill requirements
28because of deficiencies in the certificate of merit affidavit
29or answers to interrogatories, and the plaintiff shall have 20
30days to cure the deficiency. Failure to comply within the 20
31days shall result, upon motion, in mandatory dismissal with
32prejudice of each action as to which expert witness testimony
33is necessary to establish a prima facie case.
34EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill
35defines “evidence-based medical practice guidelines” as
-10-1voluntary medical practice parameters or protocols established
2and released through a recognized physician consensus-building
3organization.
4The bill provides that in any action for personal injury
5or wrongful death against a health care provider based
6upon the alleged negligence of the health care provider in
7patient care, the health care provider may establish as an
8affirmative defense that the health care provider complied with
9evidence-based medical practice guidelines in the diagnosis and
10treatment of the patient.
11The bill provides that the court shall admit evidence-based
12medical practice guidelines into evidence if introduced by a
13health care provider or the health care provider’s employer
14and if the health care provider or the health care provider’s
15employer submits evidence that the evidence-based medical
16practice guideline was appropriate for the patient and that
17the health care provider complied with such evidence-based
18medical practice guidelines. Evidence of departure from a
19guideline is admissible only on the issue of whether the health
20care provider is entitled to establish an affirmative defense
21under the bill. There shall be no presumption of negligence
22if a health care provider did not adhere to an evidence-based
23medical practice guideline.
-11-jh/nh
2noneconomic damage awards, contingency fees, expert
3witnesses, and defenses.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 135P.1, subsection 2, Code 2017, is
2amended to read as follows:
32. “Health care provider” means a physician or osteopathic
4physician licensed under chapter 148, a physician assistant
5licensed under and practicing under a supervising physician
6pursuant to chapter 148C, a podiatrist licensed under chapter
7149, or a chiropractor licensed under chapter 151, a licensed
8practical nurse, a registered nurse, or an advanced registered
9nurse practitioner licensed pursuant to under chapter 152 or
10152E, a dentist licensed under chapter 153, an optometrist
11licensed under chapter 154, a pharmacist licensed under chapter
12155A, or any other person who is licensed, certified, or
13otherwise authorized or permitted by the law of this state to
14administer health care in the ordinary course of business or in
15the practice of a profession.
16 Sec. 2. NEW SECTION. 147.136A Noneconomic damage awards
17against health care providers.
181. For purposes of this section:
19a. “Health care provider” means a physician or an
20osteopathic physician licensed under chapter 148, a
21chiropractor licensed under chapter 151, a podiatrist
22licensed under chapter 149, a physician assistant licensed and
23practicing under a supervising physician under chapter 148C, a
24licensed practical nurse, a registered nurse, or an advanced
25registered nurse practitioner licensed under chapter 152 or
26152E, a dentist licensed under chapter 153, an optometrist
27licensed under chapter 154, a pharmacist licensed under chapter
28155A, a hospital as defined in section 135B.1, or a health care
29facility as defined in section 135C.1.
30b. “Health care services” means medical diagnosis,
31treatment, evaluation, advice, or acts that are permitted under
32chapter 148, 148C, 149, 152, 152E, 153, 154, or 155A, or any
33other health care licensing statutes of this state.
34c. “Noneconomic damages” means damages arising from
35pain, suffering, inconvenience, physical impairment, mental
-1-1anguish, emotional pain and suffering, loss of chance, loss of
2consortium, or any other nonpecuniary damages.
32. The total amount of noneconomic damages recoverable from
4all defendants in all civil actions, whether in tort, contract,
5or otherwise and including derivate actions, that arise out of
6an act or omission in connection with the provision of health
7care services shall not exceed two hundred fifty thousand
8dollars.
93. The limitation on damages contained in this section
10shall not apply as to a defendant if that defendant’s actions
11constituted actual malice.
12 Sec. 3. Section 147.138, Code 2017, is amended to read as
13follows:
14147.138 Contingent fee of attorney reviewed by court.
151. In any action for personal injury or wrongful death
16against any physician and surgeon, osteopathic physician
17and surgeon, dentist, podiatric physician, optometrist,
18pharmacist, chiropractor or nurse licensed under this chapter
19 or against any hospital licensed under chapter 135B a health
20care provider, as defined in section 147.136A, based upon the
21alleged negligence of the licensee health care provider in the
22practice of that profession or occupation or in patient care,
23or upon the alleged negligence of the hospital in patient care,
24 the court shall determine the reasonableness of any contingent
25fee arrangement between the plaintiff and the plaintiff’s
26attorney, which, subject to subsection 2, shall not exceed
27thirty-five percent of the total settlement or award.
282. Upon petition by the plaintiff or the plaintiff’s
29attorney, the court may permit an attorney fee in an amount
30greater than the amount allowed under subsection 1 if the court
31determines that the additional amount is fair and reasonable.
32 Sec. 4. Section 147.139, Code 2017, is amended to read as
33follows:
34147.139 Expert witness standards.
351. If the standard of care given by a physician and surgeon
-2-1or an osteopathic physician and surgeon licensed pursuant
2to chapter 148, or a dentist licensed pursuant to chapter
3153 health care provider, as defined in section 147.136A,
4is at issue, the court shall only allow a person to qualify
5as an expert witness and to testify on the issue of the
6appropriate standard of care if the person’s medical or dental
7qualifications relate directly to the medical problem or
8problems at issue and the type of treatment administered in the
9case., breach of the standard of care, or proximate cause if
10all of the following are true:
11a. The person is licensed to practice in the same field as
12the defendant, is in good standing in each state of licensure,
13and in the five years preceding the act or omission alleged to
14be negligent, has not had a license in any state revoked or
15suspended.
16b. In the five years preceding the act or omission alleged
17to be negligent, the person actively practiced in the same
18field as the defendant or was a qualified instructor at an
19accredited university in the same field as the defendant.
20c. The person practiced or provided university instruction
21in the same or substantially similar specialty as the
22defendant.
23d. The person is trained and experienced in the same
24discipline or school of practice as the defendant or has
25specialty expertise in the disease process or procedure
26performed in the case.
27e. If the defendant is board-certified in a specialty, the
28person is certified in the same specialty by a board recognized
29by the American board of medical specialties or the American
30osteopathic association.
312. A person not licensed in this state but licensed in
32another state who testifies on the issue of the appropriate
33standard of care, breach of the standard of care, or proximate
34cause as an expert witness shall be deemed to hold a temporary
35license to practice in this state solely for the purpose of
-3-1and while providing such testimony and shall be subject to
2the authority of the applicable licensing board in this state
3including but not limited to the provisions of section 147.55.
4 Sec. 5. NEW SECTION. 147.140 Expert witness — certificate
5of merit affidavit.
61. a. In any action for personal injury or wrongful
7death against a health care provider based upon the alleged
8negligence in the practice of that profession or occupation or
9in patient care, including a cause of action for which expert
10testimony is necessary to establish a prima facie case, the
11plaintiff shall, within ninety days of the defendant’s answer,
12serve upon the defendant a certificate of merit affidavit for
13each expert witness listed pursuant to section 668.11 who will
14testify with respect to the issues of standard of care, breach
15of standard of care, or causation. All expert witnesses must
16meet the qualifying standards of section 147.139.
17b. A certificate of merit affidavit must be signed by the
18expert witness and certify the purpose for calling the expert
19witness by providing under the oath of the expert witness all
20of the following:
21(1) The expert witness’s statement of familiarity with the
22applicable standard of care.
23(2) The expert witness’s statement that the standard of care
24was breached by the health care provider named in the petition.
25(3) The expert witness’s statement of the actions that the
26health care provider failed to take or should have taken to
27comply with the standard of care.
28(4) The expert witness’s statement of the manner by which
29the breach of the standard of care was the cause of the injury
30alleged in the petition.
31c. A plaintiff shall serve a separate certificate of merit
32affidavit on each defendant named in the petition.
33d. Answers to interrogatories may serve as an expert
34witness’s certificate of merit affidavit in lieu of a
35separately executed affidavit if the interrogatories satisfy
-4-1the requirements of this subsection and are signed by the
2plaintiff’s attorney and by each expert witness listed in the
3answers to interrogatories and served upon the defendant within
4ninety days of the defendant’s answer.
52. An expert witness’s certificate of merit affidavit does
6not preclude additional discovery and supplementation of the
7expert witness’s opinions in accordance with the rules of civil
8procedure.
93. The parties by agreement or the court for good cause
10shown and in response to a motion filed prior to the expiration
11of the time limits specified in subsection 1 may provide for
12extensions of the time limits. Good cause shall include
13but not be limited to the inability to timely obtain the
14plaintiff’s medical records from health care providers when
15requested prior to filing the petition.
164. If the plaintiff is acting pro se, the plaintiff
17shall sign the certificate of merit affidavit or answers to
18interrogatories referred to in this section and shall be bound
19by those provisions as if represented by an attorney.
205. a. Failure to substantially comply with subsection
211 shall result, upon motion, in dismissal with prejudice of
22each cause of action as to which expert witness testimony is
23necessary to establish a prima facie case.
24b. A written notice of deficiency may be served upon the
25plaintiff for failure to comply with subsection 1 because of
26deficiencies in the certificate of merit affidavit or answers
27to interrogatories. The notice shall state with particularity
28each deficiency of the affidavit or answers to interrogatories.
29The plaintiff shall have twenty days to cure the deficiency.
30Failure to comply within the twenty days shall result, upon
31motion, in mandatory dismissal with prejudice of each action
32as to which expert witness testimony is necessary to establish
33a prima facie case. A party resisting a motion for mandatory
34dismissal pursuant to this section shall have the right to
35request a hearing on the motion.
-5- 16. For purposes of this section, “health care provider”
2means the same as defined in section 147.136A.
3 Sec. 6. NEW SECTION. 622.31A Evidence-based medical
4practice guidelines — affirmative defense.
51. For purposes of this section:
6a. “Evidence-based medical practice guidelines” means
7voluntary medical practice parameters or protocols established
8and released through a recognized physician consensus-building
9organization approved by the United States department of
10health and human services, the American medical association’s
11physician consortium for performance improvement or similar
12activity, or a recognized national medical specialty society.
13b. “Health care provider” means the same as defined in
14section 147.136A.
152. In an action for personal injury or wrongful death
16against a health care provider based upon the alleged
17negligence in the practice of that profession or occupation or
18in patient care, the health care provider may establish as an
19affirmative defense that the health care provider complied with
20evidence-based medical practice guidelines in the diagnosis and
21treatment of the patient.
223. The court shall admit evidence-based medical practice
23guidelines into evidence if introduced by a health care
24provider or the health care provider’s employer and if the
25health care provider or the health care provider’s employer
26submits evidence that the evidence-based medical practice
27guidelines were appropriate for the patient and that the
28health care provider complied with such evidence-based
29medical practice guidelines. Evidence of departure from an
30evidence-based medical practice guideline is admissible only on
31the issue of whether the health care provider is entitled to
32establish an affirmative defense under this section.
334. This section shall not apply to any of the following:
34a. The health care provider’s mistaken determination that
35an evidence-based medical practice guideline applied to a
-6-1particular patient where such mistake was caused by the health
2care provider’s negligence or intentional misconduct.
3b. The health care provider’s failure to properly follow
4an evidence-based medical practice guideline where such
5failure was caused by the health care provider’s negligence or
6intentional misconduct.
75. There shall be no presumption of negligence if a health
8care provider did not adhere to an evidence-based medical
9practice guideline.
10EXPLANATION
11The inclusion of this explanation does not constitute agreement with
12the explanation’s substance by the members of the general assembly.
13This bill relates to medical malpractice claims, including
14noneconomic damage awards, contingency fees, expert witnesses,
15and defenses.
16ADVERSE HEALTH CARE INCIDENTS. Under Code chapter 135P, if
17an adverse health care incident occurs, a health care provider
18may offer to engage in an open discussion with the patient. If
19the patient agrees, the health care provider may investigate
20the incident, disclose the results to the patient, and discuss
21steps the health care provider will take to prevent similar
22incidents. The health care provider may also communicate to
23the patient whether the health care provider believes that
24an offer of compensation is warranted. All communications
25made related to the open discussion are privileged and
26confidential, are not subject to discovery or subpoena, and
27are not admissible in evidence in a judicial, administrative,
28or arbitration proceeding. Under current Code chapter 135P,
29“health care provider” is defined as a physician licensed under
30Code chapter 148, a physician assistant licensed under Code
31chapter 148C, a podiatrist licensed under Code chapter 149, or
32an advanced registered nurse practitioner licensed pursuant
33to Code chapter 152 or 152E. The bill redefines “health
34care provider” to mean a physician or osteopathic physician
35licensed under chapter 148, a physician assistant licensed and
-7-1practicing under a supervising physician pursuant to chapter
2148C, a podiatrist licensed under chapter 149, a chiropractor
3licensed under chapter 151, a licensed practical nurse, a
4registered nurse, or an advanced registered nurse practitioner
5licensed under chapter 152 or 152E, a dentist licensed under
6chapter 153, an optometrist licensed under chapter 154, a
7pharmacist licensed under chapter 155A, or any other person who
8is licensed, certified, or otherwise authorized or permitted by
9the law of this state to administer health care in the ordinary
10course of business or in the practice of a profession.
11NONECONOMIC DAMAGES IN MEDICAL MALPRACTICE CASES. The
12bill defines “noneconomic damages” as damages arising from
13pain, suffering, inconvenience, physical impairment, mental
14anguish, emotional pain and suffering, loss of chance,
15loss of consortium, or any other nonpecuniary damages. The
16bill provides that the total amount of noneconomic damages
17recoverable from all defendants in all civil actions, whether
18in tort, contract, or otherwise and including derivate actions,
19that arise out of an act or omission in connection with the
20provision of health care services shall not exceed two hundred
21fifty thousand dollars. However, the limitation does not apply
22as to a defendant if that defendant’s actions constituted
23actual malice.
24CONTINGENCY FEES. Under current law, in any action for
25personal injury or wrongful death against any physician and
26surgeon, osteopathic physician and surgeon, dentist, podiatric
27physician, optometrist, pharmacist, chiropractor, nurse, or
28hospital, based upon the alleged negligence of the licensee
29in the practice of that profession or occupation, or upon the
30alleged negligence of the hospital in patient care, the court
31determines the reasonableness of any contingent fee arrangement
32between the plaintiff and the plaintiff’s attorney. The bill
33provides that a court shall also review the reasonableness of
34a contingent fee in a negligence case involving an advanced
35registered nurse practitioner, physician assistant, or a
-8-1residential care facility, a nursing facility, an intermediate
2care facility for persons with mental illness, or an
3intermediate care facility for persons with an intellectual
4disability. The bill also provides that the contingent fee
5shall not exceed 35 percent of the total settlement or award
6unless the plaintiff or the plaintiff’s attorney petitions the
7court for a greater amount and the court determines that the
8additional amount is fair and reasonable.
9EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES. The
10bill provides standards for an expert witness in a medical
11malpractice case. The bill provides that a person is
12only qualified to serve as an expert witness in a medical
13malpractice case if the person is a licensed health care
14provider, is in good standing in each state of licensure, and
15in the five years preceding the act or omission alleged to
16be negligent, has not had a license in any state revoked or
17suspended; in the five years preceding the act or omission
18alleged to be negligent, actively practiced in the same field
19as the defendant or was a qualified instructor at an accredited
20university in the same field as the defendant; practiced or
21provided instruction in the same or substantially similar
22specialty as the defendant; is trained and experienced in the
23same discipline or school of practice as the defendant or
24has specialty expertise in the disease process or procedure
25performed in the case; and, if the defendant is board-certified
26in a specialty, the person is certified in the same specialty.
27The bill provides that a person who is not licensed in Iowa
28but is licensed in another state and who testifies as an expert
29witness in a medical malpractice case shall be deemed to hold
30a temporary license to practice in Iowa and shall be subject
31to the authority of the applicable licensing board in Iowa
32including but not limited to Code section 147.55.
33The bill establishes a requirement for a certificate of
34merit affidavit for expert witnesses in medical malpractice
35cases. In an action for personal injury or wrongful death
-9-1against a health care provider based upon alleged negligence
2in the practice of that profession or in patient care, the
3bill requires the plaintiff, within 90 days of the defendant’s
4answer, to serve upon the defendant a certificate of merit
5affidavit for each expert witness who will testify with respect
6to the issues of standard of care, breach of standard of care,
7or causation. A certificate of merit affidavit must be signed
8by the expert witness and certify the purpose for calling
9the expert witness by providing under the oath of the expert
10witness the expert witness’s statement of familiarity with the
11applicable standard of care; statement that the standard of
12care was breached by the health care provider; statement of the
13actions that the health care provider failed to take or should
14have taken; and statement of the manner by which the breach of
15the standard of care was the cause of the injury.
16The bill provides that answers to interrogatories may
17serve as an expert witness’s certificate of merit affidavit
18if the interrogatories satisfy the requirements of the bill.
19The bill provides that the expert witness’s certificate of
20merit affidavit does not preclude additional discovery and
21supplementation of the expert witness’s opinions.
22The bill provides that failure to substantially comply with
23the new requirements shall result, upon motion, in dismissal
24with prejudice of each cause of action as to which expert
25witness testimony is necessary to establish a prima facie
26case. A written notice of deficiency may be served upon the
27plaintiff for failure to comply with the bill requirements
28because of deficiencies in the certificate of merit affidavit
29or answers to interrogatories, and the plaintiff shall have 20
30days to cure the deficiency. Failure to comply within the 20
31days shall result, upon motion, in mandatory dismissal with
32prejudice of each action as to which expert witness testimony
33is necessary to establish a prima facie case.
34EVIDENCE-BASED MEDICAL PRACTICE GUIDELINES. The bill
35defines “evidence-based medical practice guidelines” as
-10-1voluntary medical practice parameters or protocols established
2and released through a recognized physician consensus-building
3organization.
4The bill provides that in any action for personal injury
5or wrongful death against a health care provider based
6upon the alleged negligence of the health care provider in
7patient care, the health care provider may establish as an
8affirmative defense that the health care provider complied with
9evidence-based medical practice guidelines in the diagnosis and
10treatment of the patient.
11The bill provides that the court shall admit evidence-based
12medical practice guidelines into evidence if introduced by a
13health care provider or the health care provider’s employer
14and if the health care provider or the health care provider’s
15employer submits evidence that the evidence-based medical
16practice guideline was appropriate for the patient and that
17the health care provider complied with such evidence-based
18medical practice guidelines. Evidence of departure from a
19guideline is admissible only on the issue of whether the health
20care provider is entitled to establish an affirmative defense
21under the bill. There shall be no presumption of negligence
22if a health care provider did not adhere to an evidence-based
23medical practice guideline.
-11-jh/nh