Bill Text: IA HF487 | 2017-2018 | 87th General Assembly | Introduced

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Bill Title: A bill for an act relating to medical malpractice claims, including expert witnesses and defenses. (Formerly HSB 105.)

Spectrum: Committee Bill

Status: (Introduced - Dead) 2017-04-12 - Withdrawn. H.J. 995. [HF487 Detail]

Download: Iowa-2017-HF487-Introduced.html

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House File 487 - Introduced




                                 HOUSE FILE       
                                 BY  COMMITTEE ON JUDICIARY

                                 (SUCCESSOR TO HSB 105)

                                      A BILL FOR

  1 An Act relating to medical malpractice claims, including expert
  2    witnesses and defenses.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
    TLSB 1987HV (2) 87
    jh/nh

PAG LIN



  1  1    Section 1.  Section 135P.1, subsection 2, Code 2017, is
  1  2 amended to read as follows:
  1  3    2.  "Health care provider" means a physician or osteopathic
  1  4 physician licensed under chapter 148, a physician assistant
  1  5 licensed under and practicing under a supervising physician
  1  6 pursuant to chapter 148C, a podiatrist licensed under chapter
  1  7 149, or a chiropractor licensed under chapter 151, a licensed
  1  8 practical nurse, a registered nurse, or an advanced registered
  1  9 nurse practitioner licensed pursuant to under chapter 152 or
  1 10 152E, a dentist licensed under chapter 153, an optometrist
  1 11 licensed under chapter 154, a pharmacist licensed under chapter
  1 12 155A, or any other person who is licensed, certified, or
  1 13 otherwise authorized or permitted by the law of this state to
  1 14 administer health care in the ordinary course of business or in
  1 15 the practice of a profession.
  1 16    Sec. 2.  Section 147.139, Code 2017, is amended to read as
  1 17 follows:
  1 18    147.139  Expert witness standards.
  1 19    1.  If the standard of care given by a physician and surgeon
  1 20 or an osteopathic physician and surgeon licensed pursuant to
  1 21 chapter 148, or a dentist licensed pursuant to chapter 153,
  1 22  health care provider is at issue, the court shall only allow
  1 23 a person to qualify as an expert witness and to testify on
  1 24 the issue of the appropriate standard of care if the person's
  1 25 medical or dental qualifications relate directly to the
  1 26 medical problem or problems at issue and the type of treatment
  1 27 administered in the case., breach of the standard of care, or
  1 28 proximate cause if all of the following are true:
  1 29    a.  The person is licensed to practice in the same field as
  1 30 the defendant, is in good standing in each state of licensure,
  1 31 and in the five years preceding the act or omission alleged to
  1 32 be negligent, has not had a license in any state revoked or
  1 33 suspended.
  1 34    b.  In the five years preceding the act or omission alleged
  1 35 to be negligent, the person actively practiced in the same
  2  1 field as the defendant or was a qualified instructor at an
  2  2 accredited university in the same field as the defendant.
  2  3    c.  The person practiced or provided university instruction
  2  4 in the same or substantially similar specialty as the
  2  5 defendant.
  2  6    d.  The person is trained and experienced in the same
  2  7 discipline or school of practice as the defendant or has
  2  8 specialty expertise in the disease process or procedure
  2  9 performed in the case.
  2 10    e.  If the defendant is board=certified in a specialty, the
  2 11 person is certified in the same specialty by a board recognized
  2 12 by the American board of medical specialties or the American
  2 13 osteopathic association.
  2 14    2.  For purposes of this section, "health care provider"
  2 15  means a physician or an osteopathic physician licensed under
  2 16 chapter 148, a chiropractor licensed under chapter 151, a
  2 17 podiatrist licensed under chapter 149, a physician assistant
  2 18 licensed and practicing under a supervising physician under
  2 19 chapter 148C, a licensed practical nurse, a registered nurse,
  2 20 or an advanced registered nurse practitioner licensed under
  2 21 chapter 152 or 152E, a dentist licensed under chapter 153, an
  2 22 optometrist licensed under chapter 154, a pharmacist licensed
  2 23 under chapter 155A, a hospital as defined in section 135B.1, or
  2 24 a health care facility as defined in section 135C.1.
  2 25    Sec. 3.  NEW SECTION.  147.140  Expert witness ==== certificate
  2 26 of merit affidavit.
  2 27    1.  a.  In any action for personal injury or wrongful
  2 28 death against a health care provider based upon the alleged
  2 29 negligence in the practice of that profession or occupation or
  2 30 in patient care, including a cause of action for which expert
  2 31 testimony is necessary to establish a prima facie case, the
  2 32 plaintiff shall, within ninety days of the defendant's answer,
  2 33 serve upon the defendant a certificate of merit affidavit for
  2 34 each expert witness listed pursuant to section 668.11 who will
  2 35 testify with respect to the issues of standard of care, breach
  3  1 of standard of care, or causation. All expert witnesses must
  3  2 meet the qualifying standards of section 147.139.
  3  3    b.  A certificate of merit affidavit must be signed by the
  3  4 expert witness and certify the purpose for calling the expert
  3  5 witness by providing under the oath of the expert witness all
  3  6 of the following:
  3  7    (1)  The expert witness's statement of familiarity with the
  3  8 applicable standard of care.
  3  9    (2)  The expert witness's statement that the standard of care
  3 10 was breached by the health care provider named in the petition.
  3 11    (3)  The expert witness's statement of the actions that the
  3 12 health care provider failed to take or should have taken to
  3 13 comply with the standard of care.
  3 14    (4)  The expert witness's statement of the manner by which
  3 15 the breach of the standard of care was the cause of the injury
  3 16 alleged in the petition.
  3 17    c.  A plaintiff shall serve a separate certificate of merit
  3 18 affidavit on each defendant named in the petition.
  3 19    d.  Answers to interrogatories may serve as an expert
  3 20 witness's certificate of merit affidavit in lieu of a
  3 21 separately executed affidavit if the interrogatories satisfy
  3 22 the requirements of this subsection and are signed by the
  3 23 plaintiff's attorney and by each expert witness listed in the
  3 24 answers to interrogatories and served upon the defendant within
  3 25 ninety days of the defendant's answer.
  3 26    2.  An expert witness's certificate of merit affidavit does
  3 27 not preclude additional discovery and supplementation of the
  3 28 expert witness's opinions in accordance with the rules of civil
  3 29 procedure.
  3 30    3.  The parties by agreement or the court for good cause
  3 31 shown and in response to a motion filed prior to the expiration
  3 32 of the time limits specified in subsection 1 may provide for
  3 33 extensions of the time limits. Good cause shall include
  3 34 but not be limited to the inability to timely obtain the
  3 35 plaintiff's medical records from health care providers when
  4  1 requested prior to filing the petition.
  4  2    4.  If the plaintiff is acting pro se, the plaintiff
  4  3 shall sign the certificate of merit affidavit or answers to
  4  4 interrogatories referred to in this section and shall be bound
  4  5 by those provisions as if represented by an attorney.
  4  6    5.  a.  Failure to substantially comply with subsection
  4  7 1 shall result, upon motion, in dismissal with prejudice of
  4  8 each cause of action as to which expert witness testimony is
  4  9 necessary to establish a prima facie case.
  4 10    b.  A written notice of deficiency may be served upon the
  4 11 plaintiff for failure to comply with subsection 1 because of
  4 12 deficiencies in the certificate of merit affidavit or answers
  4 13 to interrogatories. The notice shall state with particularity
  4 14 each deficiency of the affidavit or answers to interrogatories.
  4 15 The plaintiff shall have twenty days to cure the deficiency.
  4 16 Failure to comply within the twenty days shall result, upon
  4 17 motion, in mandatory dismissal with prejudice of each action
  4 18 as to which expert witness testimony is necessary to establish
  4 19 a prima facie case. A party resisting a motion for mandatory
  4 20 dismissal pursuant to this section shall have the right to
  4 21 request a hearing on the motion.
  4 22    6.  For purposes of this section, "health care provider"
  4 23 means the same as defined in section 147.139.
  4 24    Sec. 4.  NEW SECTION.  622.31A  Evidence=based medical
  4 25 practice guidelines ==== affirmative defense.
  4 26    1.  For purposes of this section:
  4 27    a.  "Evidence=based medical practice guidelines" means
  4 28 voluntary medical practice parameters or protocols established
  4 29 and released through a recognized physician consensus=building
  4 30 organization approved by the United States department of
  4 31 health and human services, the American medical association's
  4 32 physician consortium for performance improvement or similar
  4 33 activity, or a recognized national medical specialty society.
  4 34    b.  "Health care provider" means the same as defined in
  4 35 section 147.139.
  5  1    2.  In an action for personal injury or wrongful death
  5  2 against a health care provider based upon the alleged
  5  3 negligence in the practice of that profession or occupation or
  5  4 in patient care, the health care provider may establish as an
  5  5 affirmative defense that the health care provider complied with
  5  6 evidence=based medical practice guidelines in the diagnosis and
  5  7 treatment of the patient.
  5  8    3.  The court shall admit evidence=based medical practice
  5  9 guidelines into evidence if introduced by a health care
  5 10 provider or the health care provider's employer and if the
  5 11 health care provider or the health care provider's employer
  5 12 submits evidence that the evidence=based medical practice
  5 13 guidelines were appropriate for the patient and that the
  5 14 health care provider complied with such evidence=based
  5 15 medical practice guidelines. Evidence of departure from an
  5 16 evidence=based medical practice guideline is admissible only on
  5 17 the issue of whether the health care provider is entitled to
  5 18 establish an affirmative defense under this section.
  5 19    4.  This section shall not apply to any of the following:
  5 20    a.  The health care provider's mistaken determination that
  5 21 an evidence=based medical practice guideline applied to a
  5 22 particular patient where such mistake was caused by the health
  5 23 care provider's negligence or intentional misconduct.
  5 24    b.  The health care provider's failure to properly follow
  5 25 an evidence=based medical practice guideline where such
  5 26 failure was caused by the health care provider's negligence or
  5 27 intentional misconduct.
  5 28    5.  There shall be no presumption of negligence if a health
  5 29 care provider did not adhere to an evidence=based medical
  5 30 practice guideline.
  5 31                           EXPLANATION
  5 32 The inclusion of this explanation does not constitute agreement with
  5 33 the explanation's substance by the members of the general assembly.
  5 34    This bill relates to medical malpractice claims, including
  5 35 expert witnesses and defenses.
  6  1 ADVERSE HEALTH CARE INCIDENTS.  Under Code chapter 135P, if
  6  2 an adverse health care incident occurs, a health care provider
  6  3 may offer to engage in an open discussion with the patient. If
  6  4 the patient agrees, the health care provider may investigate
  6  5 the incident, disclose the results to the patient, and discuss
  6  6 steps the health care provider will take to prevent similar
  6  7 incidents. The health care provider may also communicate to
  6  8 the patient whether the health care provider believes that
  6  9 an offer of compensation is warranted. All communications
  6 10 made related to the open discussion are privileged and
  6 11 confidential, are not subject to discovery or subpoena, and
  6 12 are not admissible in evidence in a judicial, administrative,
  6 13 or arbitration proceeding. Under current Code chapter 135P,
  6 14 "health care provider" is defined as a physician licensed under
  6 15 Code chapter 148, a physician assistant licensed under Code
  6 16 chapter 148C, a podiatrist licensed under Code chapter 149, or
  6 17 an advanced registered nurse practitioner licensed pursuant
  6 18 to Code chapter 152 or 152E.  The bill redefines "health
  6 19 care provider" to mean a physician or osteopathic physician
  6 20 licensed under chapter 148, a physician assistant licensed  and
  6 21 practicing under a supervising physician pursuant to chapter
  6 22 148C, a podiatrist licensed under chapter 149, a chiropractor
  6 23 licensed under chapter 151, a licensed practical nurse, a
  6 24 registered nurse, or an advanced registered nurse practitioner
  6 25 licensed  under chapter 152 or 152E, a dentist licensed under
  6 26 chapter 153, an optometrist licensed under chapter 154, a
  6 27 pharmacist licensed under chapter 155A, or any other person who
  6 28 is licensed, certified, or otherwise authorized or permitted by
  6 29 the law of this state to administer health care in the ordinary
  6 30 course of business or in the practice of a profession.
  6 31    EXPERT WITNESSES IN MEDICAL MALPRACTICE CASES.  The
  6 32 bill provides standards for an expert witness in a medical
  6 33 malpractice case. The bill provides that a person is
  6 34 only qualified to serve as an expert witness in a medical
  6 35 malpractice case if the person is a licensed health care
  7  1 provider, is in good standing in each state of licensure, and
  7  2 in the five years preceding the act or omission alleged to
  7  3 be negligent, has not had a license in any state revoked or
  7  4 suspended; in the five years preceding the act or omission
  7  5 alleged to be negligent, actively practiced in the same field
  7  6 as the defendant or was a qualified instructor at an accredited
  7  7 university in the same field as the defendant; practiced or
  7  8 provided instruction in the same or substantially similar
  7  9 specialty as the defendant; is trained and experienced in the
  7 10 same discipline or school of practice as the defendant or
  7 11 has specialty expertise in the disease process or procedure
  7 12 performed in the case; and, if the defendant is board=certified
  7 13 in a specialty, the person is certified in the same specialty.
  7 14    The bill establishes a requirement for a certificate of
  7 15 merit affidavit for expert witnesses in medical malpractice
  7 16 cases. In an action for personal injury or wrongful death
  7 17 against a health care provider based upon alleged negligence
  7 18 in the practice of that profession or in patient care, the
  7 19 bill requires the plaintiff, within 90 days of the defendant's
  7 20 answer, to serve upon the defendant a certificate of merit
  7 21 affidavit for each expert witness who will testify with respect
  7 22 to the issues of standard of care, breach of standard of care,
  7 23 or causation.  A certificate of merit affidavit must be signed
  7 24 by the expert witness and certify the purpose for calling
  7 25 the expert witness by providing under the oath of the expert
  7 26 witness the expert witness's statement of familiarity with the
  7 27 applicable standard of care; statement that the standard of
  7 28 care was breached by the health care provider; statement of the
  7 29 actions that the health care provider failed to take or should
  7 30 have taken; and statement of the manner by which the breach of
  7 31 the standard of care was the cause of the injury.
  7 32    The bill provides that answers to interrogatories may
  7 33 serve as an expert witness's certificate of merit affidavit
  7 34 if the interrogatories satisfy the requirements of the bill.
  7 35 The bill provides that the expert witness's certificate of
  8  1 merit affidavit does not preclude additional discovery and
  8  2 supplementation of the expert witness's opinions.
  8  3    The bill provides that failure to substantially comply with
  8  4 the new requirements shall result, upon motion, in dismissal
  8  5 with prejudice of each cause of action as to which expert
  8  6 witness testimony is necessary to establish a prima facie
  8  7 case. A written notice of deficiency may be served upon the
  8  8 plaintiff for failure to comply with the bill requirements
  8  9 because of deficiencies in the certificate of merit affidavit
  8 10 or answers to interrogatories, and the plaintiff shall have 20
  8 11 days to cure the deficiency. Failure to comply within the 20
  8 12 days shall result, upon motion, in mandatory dismissal with
  8 13 prejudice of each action as to which expert witness testimony
  8 14 is necessary to establish a prima facie case.
  8 15    EVIDENCE=BASED MEDICAL PRACTICE GUIDELINES.  The bill
  8 16 defines "evidence=based medical practice guidelines" as
  8 17 voluntary medical practice parameters or protocols established
  8 18 and released through a recognized physician consensus=building
  8 19 organization.
  8 20    The bill provides that in any action for personal injury
  8 21 or wrongful death against a health care provider based
  8 22 upon the alleged negligence of the health care provider in
  8 23 patient care, the health care provider may establish as an
  8 24 affirmative defense that the health care provider complied with
  8 25 evidence=based medical practice guidelines in the diagnosis and
  8 26 treatment of the patient.
  8 27    The bill provides that the court shall admit evidence=based
  8 28 medical practice guidelines into evidence if introduced by a
  8 29 health care provider or the health care provider's employer
  8 30 and if the health care provider or the health care provider's
  8 31 employer submits evidence that the evidence=based medical
  8 32 practice guideline was appropriate for the patient and that
  8 33 the health care provider complied with such evidence=based
  8 34 medical practice guidelines. Evidence of departure from a
  8 35 guideline is admissible only on the issue of whether the health
  9  1 care provider is entitled to establish an affirmative defense
  9  2 under the bill. There shall be no presumption of negligence
  9  3 if a health care provider did not adhere to an evidence=based
  9  4 medical practice guideline.
       LSB 1987HV (2) 87
       jh/nh