Bill Text: IA SF206 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to medical malpractice liability and insurance coverage in the state and including applicability provisions.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-02-08 - Subcommittee: Schneider, Boulton, and Zaun. S.J. 244. [SF206 Detail]
Download: Iowa-2017-SF206-Introduced.html
Senate File 206 - Introduced SENATE FILE BY ZAUN A BILL FOR 1 An Act relating to medical malpractice liability and insurance 2 coverage in the state and including applicability 3 provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1663XS (6) 87 av/nh PAG LIN 1 1 Section 1. NEW SECTION. 519B.1 Definitions. 1 2 As used in this chapter, unless the context otherwise 1 3 requires: 1 4 1. "Commissioner" means the commissioner of insurance or a 1 5 designee. 1 6 2. "Cost of the periodic payments agreement" means the amount 1 7 expended by a health care provider, the health care provider's 1 8 medical malpractice insurer, the commissioner, or a combination 1 9 thereof, at the time the periodic payments agreement is 1 10 made, to obtain a commitment from a third party to make money 1 11 available for use as future payment, the total of which may 1 12 exceed the limits provided in section 519B.14. 1 13 3. "Health care provider" means and includes a physician and 1 14 surgeon, osteopathic physician and surgeon, dentist, podiatric 1 15 physician, optometrist, pharmacist, chiropractor, or nurse 1 16 licensed pursuant to chapter 147, a hospital licensed pursuant 1 17 to chapter 135B, and a health care facility licensed pursuant 1 18 to chapter 135C. 1 19 4. "Medical malpractice insurance" means insurance coverage 1 20 against the legal liability of the insured and against loss, 1 21 damage, or expense incident to a claim arising out of the 1 22 death or injury of any person as the result of negligence or 1 23 malpractice in rendering professional service by any licensed 1 24 health care provider. 1 25 5. "Net direct premiums" means gross direct premiums 1 26 written on liability insurance as reported in the annual 1 27 statements filed by insurers with the commissioner, including 1 28 the liability component of multiple peril package policies as 1 29 computed by the commissioner, less return premiums for the 1 30 unused or unabsorbed portions of premium deposits. 1 31 6. "Patient" means an individual who receives or should 1 32 have received health care from a health care provider under a 1 33 contract, express or implied, and includes a person having a 1 34 claim of any kind, whether derivative or otherwise, as a result 1 35 of alleged malpractice on the part of a health care provider. 2 1 For purposes of this subsection, "derivative" claims include 2 2 the claim of a parent or parents, guardian, trustee, child, 2 3 relative, attorney, or any other representative of a patient, 2 4 including claims for loss of services, loss of consortium, 2 5 expenses, and other similar claims. 2 6 7. "Periodic payments agreement" means a contract between 2 7 a health care provider or the health care provider's medical 2 8 malpractice insurer and the patient or the patient's estate, 2 9 under which the health care provider is relieved from possible 2 10 liability, whether or not some or all of the payments are 2 11 contingent upon the patient's survival to the proposed date of 2 12 payment, in consideration of any of the following: 2 13 a. A present payment of moneys to the patient or the 2 14 patient's estate. 2 15 b. One or more payments to the patient or the patient's 2 16 estate in the future. 2 17 Sec. 2. NEW SECTION. 519B.2 Application of chapter. 2 18 A health care provider who fails to qualify under this 2 19 chapter is not covered by this chapter and is subject to 2 20 liability under the law without regard to this chapter. If 2 21 a health care provider does not qualify, a patient's remedy 2 22 against the health care provider is not affected by this 2 23 chapter. 2 24 Sec. 3. NEW SECTION. 519B.3 Qualification of health care 2 25 providers. 2 26 1. A health care provider qualifies under and is subject to 2 27 the application of this chapter by doing both of the following: 2 28 a. Establishing financial responsibility as provided in 2 29 section 519B.4. 2 30 b. Paying the surcharge assessed as provided in section 2 31 519B.5. 2 32 2. A health care provider shall establish financial 2 33 responsibility and pay the surcharge not later than ninety 2 34 days after the effective date of the medical malpractice 2 35 insurance policy issued to the provider. Notwithstanding this 3 1 requirement, the commissioner may accept a late filing and 3 2 payment if the filing is accompanied by a penalty amount as set 3 3 forth by the commissioner by rules adopted pursuant to chapter 3 4 17A. 3 5 3. Within five business days after the commissioner 3 6 receives the information and payment required under subsection 3 7 1 for the qualification of a health care provider, the 3 8 commissioner shall notify the health care provider whether the 3 9 provider is qualified and if the provider is qualified, the 3 10 date of qualification. 3 11 Sec. 4. NEW SECTION. 519B.4 Establishment of financial 3 12 responsibility. 3 13 A health care provider may establish the financial 3 14 responsibility of the health care provider and the provider's 3 15 officers, agents, and employees while acting in the course and 3 16 scope of their employment with the health care provider in any 3 17 of the following ways: 3 18 1. By filing proof with the commissioner that the health 3 19 care provider is insured by a policy of medical malpractice 3 20 insurance in the amount of at least two hundred fifty thousand 3 21 dollars per occurrence and seven hundred fifty thousand dollars 3 22 in the annual aggregate, except for the following: 3 23 a. If the health care provider is a hospital licensed 3 24 pursuant to chapter 135B, the minimum annual aggregate amount 3 25 is as follows: 3 26 (1) For hospitals of not more than one hundred beds, five 3 27 million dollars. 3 28 (2) For hospitals of more than one hundred beds, seven 3 29 million five hundred thousand dollars. 3 30 b. If the health care provider is a health care facility 3 31 licensed pursuant to chapter 135C, the minimum annual aggregate 3 32 amount is as follows: 3 33 (1) For health care facilities with not more than one 3 34 hundred beds, seven hundred fifty thousand dollars. 3 35 (2) For health care facilities with more than one hundred 4 1 beds, one million two hundred fifty thousand dollars. 4 2 2. By filing and maintaining with the commissioner cash or 4 3 a surety bond approved by the commissioner in the amounts set 4 4 forth in subsection 1. 4 5 3. a. If the health care provider is a hospital, by 4 6 annually submitting a verified financial statement that, in the 4 7 discretion of the commissioner, adequately demonstrates that 4 8 the current and future financial responsibility of the hospital 4 9 is sufficient to satisfy all potential malpractice claims 4 10 incurred by the hospital or the hospital's officers, agents, 4 11 and employees while acting in the course and scope of their 4 12 employment up to a total of two hundred fifty thousand dollars 4 13 per occurrence and annual aggregates as follows: 4 14 (1) For hospitals of not more than one hundred beds, five 4 15 million dollars. 4 16 (2) For hospitals of more than one hundred beds, seven 4 17 million five hundred thousand dollars. 4 18 b. The commissioner may also require the deposit of security 4 19 to assure continued financial responsibility under this 4 20 subsection. 4 21 Sec. 5. NEW SECTION. 519B.5 Surcharge. 4 22 1. Beginning January 1, 2018, the commissioner shall assess 4 23 an annual surcharge on all health care providers in the state 4 24 who seek to qualify under this chapter, to create a source of 4 25 moneys for the patient compensation fund. 4 26 2. Beginning January 1, 2018, the amount of the annual 4 27 surcharge shall be one hundred percent of the annual cost 4 28 to each health care provider of maintaining financial 4 29 responsibility. 4 30 3. Notwithstanding subsection 2, beginning January 1, 4 31 2018, the surcharge for a health care provider licensed as a 4 32 physician under chapter 148 who seeks to qualify under this 4 33 chapter, shall be calculated as follows: 4 34 a. The commissioner shall contract with an actuary who 4 35 has experience in calculating the actuarial risks posed by 5 1 physicians. Not later than July 1 of each year, the actuary 5 2 shall calculate the median of the premiums paid for medical 5 3 malpractice insurance to the three malpractice insurance 5 4 carriers in the state that have underwritten the most 5 5 malpractice insurance policies for all physicians practicing 5 6 in the same specialty class in the state during the previous 5 7 twelve=month period. In calculating the median, the actuary 5 8 shall consider the following: 5 9 (1) The manual rates of the three leading malpractice 5 10 insurance carriers in the state. 5 11 (2) The aggregate credits or debits to the manual rates 5 12 given during the previous twelve=month period. 5 13 b. After making the calculation described in paragraph 5 14 "a", the actuary shall establish a uniform surcharge for 5 15 all licensed physicians practicing in the same specialty 5 16 class. The surcharge shall be based on a percentage of the 5 17 median calculated in paragraph "a" for all licensed physicians 5 18 practicing in the same specialty class under rules adopted by 5 19 the commissioner pursuant to chapter 17A. The surcharge shall 5 20 be sufficient to cover, but not exceed, the actuarial risk 5 21 posed to the patient compensation fund by physicians practicing 5 22 in the specialty class. 5 23 4. a. Notwithstanding subsection 2, beginning January 5 24 1, 2018, the surcharge for a health care provider that is a 5 25 hospital licensed under chapter 135B that seeks to qualify 5 26 under this chapter shall be established by the commissioner 5 27 through the use of an actuarial program in an amount that is 5 28 sufficient to cover, but not exceed, the actuarial risk posed 5 29 to the patient compensation fund by the hospital. 5 30 b. As used in this subsection, "actuarial program" means a 5 31 program used or created by the commissioner to determine the 5 32 actuarial risk posed to the patient compensation fund by a 5 33 hospital. The program must be all of the following: 5 34 (1) Developed to calculate actuarial risk posed by a 5 35 hospital, taking into consideration risk management programs 6 1 used by the hospital. 6 2 (2) An efficient and accurate means of calculating a 6 3 hospital's malpractice actuarial risk. 6 4 (3) Publicly identified by the commissioner by January 1 of 6 5 each year. 6 6 (4) Made available to a hospital's malpractice insurance 6 7 carrier for purposes of calculating the hospital's surcharge 6 8 under this subsection. 6 9 5. The surcharge shall be collected on the same basis as 6 10 premiums by each medical malpractice insurer. 6 11 6. The surcharges collected shall be remitted to the 6 12 commissioner for deposit into the patient compensation fund 6 13 within thirty days after a premium for medical malpractice 6 14 insurance has been received by an insurer from a health care 6 15 provider. If a surcharge is not paid as required by this 6 16 section, the insurer responsible for the delinquency is liable 6 17 for the surcharge plus a penalty equal to ten percent of the 6 18 amount of the surcharge, which penalty shall also be deposited 6 19 into the patient compensation fund. 6 20 7. a. The commissioner may adopt rules pursuant to chapter 6 21 17A establishing all of the following: 6 22 (1) The manner of determination of the surcharge for a 6 23 health care provider who establishes financial responsibility 6 24 in a manner other than by a policy of medical malpractice 6 25 insurance. 6 26 (2) The manner of payment of the surcharge by such a health 6 27 care provider. 6 28 b. The surcharge calculation established under paragraph 6 29 "a" shall provide comparability in rates for insured and 6 30 self=insured hospitals. The surcharge shall not exceed the 6 31 surcharge that would be charged by a medical malpractice 6 32 insurer if the health care provider electing to establish 6 33 financial responsibility in this manner had applied to a 6 34 malpractice insurer for insurance. 6 35 8. Beginning July 1, 2020, the annual surcharge shall be set 7 1 by rules adopted by the commissioner pursuant to chapter 17A 7 2 that meet the following requirements: 7 3 a. The amount of the surcharge shall be determined based 7 4 upon actuarial principles and actuarial studies and must be 7 5 adequate for the payment of claims and expenses from the 7 6 patient compensation fund. 7 7 b. The annual surcharge for qualified health care providers 7 8 other than physicians licensed under chapter 148 and hospitals 7 9 licensed under chapter 135B shall not exceed the actuarial risk 7 10 posed to the patient compensation fund by qualified health care 7 11 providers and shall not be less than one hundred dollars. 7 12 Sec. 6. NEW SECTION. 519B.6 Patient compensation fund. 7 13 1. A patient compensation fund is established under the 7 14 custody of the treasurer of state and shall consist of payments 7 15 to the fund as provided by this chapter and any accumulated 7 16 interest and earnings in the patient compensation fund. 7 17 2. The treasurer of state is charged with conservation 7 18 of the assets of the patient compensation fund. Moneys 7 19 collected in the fund shall be disbursed only for the 7 20 purposes stated in this chapter and shall not at any time be 7 21 appropriated or diverted to any other use or purpose. Except 7 22 for reimbursements to the attorney general provided for in 7 23 subsection 4, disbursements from the fund shall be paid by 7 24 the treasurer of state only upon the written order of the 7 25 commissioner. The treasurer of state shall invest any surplus 7 26 moneys of the fund in securities which constitute legal 7 27 investments for state funds under the laws of this state, and 7 28 may sell any of the securities in which the fund is invested, 7 29 if necessary, for the proper administration or in the best 7 30 interests of the fund. 7 31 3. The treasurer of state shall quarterly prepare a 7 32 statement of the fund, setting forth the balance of moneys in 7 33 the fund, the income of the fund, specifying the source of all 7 34 income, the payments out of the fund, specifying the various 7 35 items of payments, and setting forth the balance of the fund 8 1 remaining to its credit. The statement shall be open to public 8 2 inspection in the office of the treasurer of state. 8 3 4. a. The attorney general shall appoint a staff member to 8 4 represent the treasurer of state and the patient compensation 8 5 fund in all proceedings and matters arising under this chapter. 8 6 The attorney general shall be reimbursed up to two hundred 8 7 fifteen thousand dollars annually from the fund for services 8 8 provided related to the fund. The commissioner of insurance 8 9 shall consider the reimbursement to the attorney general as an 8 10 outstanding liability when making a determination of the amount 8 11 of the surcharge under section 519B.5. 8 12 b. The attorney general shall represent the fund when a 8 13 trial court determination is necessary to resolve a claim 8 14 against the patient compensation fund. 8 15 5. a. Claims for payment from the patient compensation fund 8 16 shall be computed and paid not later than sixty days after the 8 17 issuance of a court=approved settlement or final nonappealable 8 18 judgment. 8 19 b. If the balance in the fund is insufficient to pay in full 8 20 all claims that have become final during a three=month period, 8 21 the amount to each claimant shall be prorated. Any amount 8 22 left unpaid as a result of the proration shall be paid before 8 23 the payment of claims that become final during the following 8 24 three=month period. 8 25 c. The treasurer of state shall issue a warrant in the 8 26 amount of each claim submitted to the treasurer against 8 27 the fund not later than sixty days after the issuance of a 8 28 court=approved settlement or final nonappealable judgment. 8 29 The only claim against the fund shall be a voucher or other 8 30 appropriate request by the commissioner after the commissioner 8 31 receives one of the following: 8 32 (1) A certified copy of a final nonappealable judgment 8 33 against a health care provider qualified under this chapter. 8 34 (2) A certified copy of a court=approved settlement against 8 35 a health care provider qualified under this chapter. 9 1 Sec. 7. NEW SECTION. 519B.7 Statute of limitations. 9 2 1. a. This section applies to all persons regardless of 9 3 minority or other legal disability, except as provided in 9 4 subsection 3. 9 5 b. Notwithstanding section 614.1, subsection 9, or any other 9 6 provision of law to the contrary, a claim, whether in contract 9 7 or tort, shall not be brought against a health care provider 9 8 qualified under this chapter based upon professional services 9 9 or health care that was provided or that should have been 9 10 provided unless the claim is brought within two years after the 9 11 date of the alleged act, omission, or neglect, except that a 9 12 minor less than six years of age has until the minor's eighth 9 13 birthday to bring such claim. 9 14 c. If a patient meets the criteria stated in section 519B.8, 9 15 subsection 5, paragraph "c", the applicable limitations period 9 16 is equal to the period that would otherwise apply to the person 9 17 under subsection 2 plus one hundred eighty days. 9 18 2. Notwithstanding section 614.1, subsection 9, section 9 19 519B.2, or any other provision of law to the contrary, any 9 20 claim, whether in contract or tort, by a minor or other person 9 21 under legal disability against a health care provider qualified 9 22 under this chapter stemming from professional services or 9 23 health care provided based on an alleged act, omission, or 9 24 neglect that occurred before January 1, 2018, shall be brought 9 25 only within the longer of either of the following: 9 26 a. Two years after January 1, 2018. 9 27 b. The period described in subsection 1. 9 28 3. a. The filing of a proposed complaint under section 9 29 519B.8 tolls the applicable statute of limitations to and 9 30 including a period of ninety days following receipt of the 9 31 opinion of the medical review panel by the claimant. 9 32 b. A proposed complaint under section 519B.8, subsection 5, 9 33 paragraph "c", is considered filed when a copy of the proposed 9 34 complaint is delivered or mailed by registered or certified 9 35 mail to the commissioner. 10 1 Sec. 8. NEW SECTION. 519B.8 Medical malpractice action == 10 2 commencement. 10 3 1. A patient or a representative of a patient who has a 10 4 claim against a health care provider qualified under this 10 5 chapter for bodily injury or death on account of medical 10 6 malpractice may file a complaint in any court of law having 10 7 requisite jurisdiction and may, by demand, exercise the right 10 8 to a trial by jury. 10 9 2. A demand in such a medical malpractice complaint shall 10 10 not include a dollar amount, but the prayer shall be for such 10 11 damages as are reasonable in the circumstances. 10 12 3. Notwithstanding subsection 1, an action for medical 10 13 malpractice against a health care provider qualified under 10 14 this chapter shall not be commenced in a court in this state 10 15 until the claimant's proposed complaint has been filed with 10 16 the commissioner and presented to a medical review panel 10 17 established under section 519B.10 and an opinion on the 10 18 complaint has been rendered by the panel. 10 19 4. Notwithstanding subsection 3, a claimant may commence 10 20 an action in court for medical malpractice against a health 10 21 care provider qualified under this chapter without presentation 10 22 of the claim to a medical review panel if the claimant and 10 23 all parties named as defendants in the action agree that the 10 24 claim is not to be presented to a medical review panel. The 10 25 agreement shall be in writing and shall be signed by each party 10 26 or an authorized agent of the party. The claimant shall attach 10 27 a copy of the agreement to the complaint filed with the court 10 28 in which the action is commenced. 10 29 5. a. Notwithstanding subsection 3, a patient may commence 10 30 an action against a health care provider qualified under 10 31 this chapter for medical malpractice without submitting a 10 32 proposed complaint to a medical review panel if the patient's 10 33 pleadings include a declaration that the patient seeks damages 10 34 from the health care provider in an amount not greater than 10 35 fifteen thousand dollars. In an action commenced under this 11 1 subsection, the patient is barred from recovering any amount 11 2 greater than fifteen thousand dollars except as provided in 11 3 paragraph "b". 11 4 b. A patient who commences an action under paragraph 11 5 "a" in the reasonable belief that damages in an amount not 11 6 greater than fifteen thousand dollars are adequate compensation 11 7 for the bodily injury allegedly caused by the health care 11 8 provider's medical malpractice and later learns, during the 11 9 pendency of the action, that the bodily injury is more serious 11 10 than previously believed and that fifteen thousand dollars 11 11 is insufficient compensation for the bodily injury, may move 11 12 that the action be dismissed without prejudice, and upon 11 13 dismissal of the action, may file a proposed complaint subject 11 14 to subsection 3 based upon the same allegations of medical 11 15 malpractice that were asserted in the action dismissed under 11 16 this paragraph. However, a patient may move for dismissal 11 17 without prejudice and, if dismissal without prejudice is 11 18 granted, may commence a second action under this paragraph only 11 19 if the patient's motion for dismissal is filed within two years 11 20 after commencement of the original action under paragraph "a". 11 21 c. If a patient commences an action under paragraph "a", 11 22 moves for dismissal of that action under paragraph "b", files a 11 23 proposed complaint subject to subsection 3 based on the same 11 24 allegations of malpractice as were asserted in the action 11 25 dismissed under paragraph "b", and commences a second action 11 26 following the medical review panel proceeding on the proposed 11 27 complaint, the timeliness of the second action is governed by 11 28 the provisions of section 519B.7. 11 29 d. A medical malpractice insurer of a health care provider 11 30 against whom an action has been filed under paragraph "a" shall 11 31 provide written notice to the commissioner. 11 32 6. If action has not been taken in a case before the 11 33 commissioner for a period of at least two years, the 11 34 commissioner may, on the motion of a party or on the 11 35 commissioner's own initiative, file a motion in the Polk county 12 1 district court to dismiss the case. 12 2 Sec. 9. NEW SECTION. 519B.9 Reporting and review of claims. 12 3 1. Within ten days after receiving a proposed complaint 12 4 under section 519B.8, the commissioner shall forward a copy of 12 5 the complaint by registered or certified mail to each health 12 6 care provider qualified under this chapter who is named as a 12 7 defendant, at the defendant's last and usual place of residence 12 8 or the defendant's office. 12 9 2. A medical malpractice insurer of a health care provider 12 10 qualified under this chapter against whom an action has been 12 11 filed pursuant to section 519B.8, subsection 5, shall provide 12 12 written notice to the commissioner within thirty days after 12 13 both of the following: 12 14 a. The filing of the action. 12 15 b. The final disposition of the action. 12 16 3. a. A medical malpractice insurer shall notify the 12 17 commissioner of any malpractice case upon which the insurer has 12 18 placed a reserve of at least one hundred twenty=five thousand 12 19 dollars, immediately after placing the reserve. The notice and 12 20 all communications and correspondence relating to the notice 12 21 are confidential and shall not be made available to any person 12 22 or any other public or private agency. 12 23 b. All malpractice claims settled or adjudicated to final 12 24 judgment against a health care provider qualified under 12 25 this chapter shall be reported to the commissioner by the 12 26 plaintiff's attorney and by the health care provider or the 12 27 health care provider's medical malpractice insurer within 12 28 sixty days following final disposition of the claim. The 12 29 report to the commissioner shall include all of the following 12 30 information: 12 31 (1) The nature of the claim. 12 32 (2) The damages asserted and the alleged injury. 12 33 (3) The attorney fees and expenses incurred in connection 12 34 with the claim or defense. 12 35 (4) The amount of the settlement or judgment. 13 1 4. a. A medical review panel established pursuant to 13 2 section 519B.10 shall make a separate determination, at the 13 3 time the panel renders an opinion, as to whether the name 13 4 of the defendant health care provider should be forwarded 13 5 to the appropriate board of professional regulation for 13 6 review of the health care provider's fitness to practice the 13 7 health care provider's profession. The commissioner shall 13 8 forward the name of the defendant health care provider if the 13 9 medical review panel unanimously determines that the name 13 10 should be forwarded. The medical review panel determination 13 11 concerning the forwarding of the name of a defendant health 13 12 care provider is not admissible as evidence in a civil action. 13 13 In each case involving review of a health care provider's 13 14 fitness to practice that is forwarded under this subsection, 13 15 the appropriate board of professional regulation may, in 13 16 appropriate cases, take any disciplinary actions within the 13 17 authority of that board against the health care provider. 13 18 b. The appropriate board of professional regulation shall 13 19 report to the commissioner the board's findings, the action 13 20 taken, and the final disposition of each case involving review 13 21 of a health care provider's fitness to practice forwarded under 13 22 this subsection. 13 23 Sec. 10. NEW SECTION. 519B.10 Medical review panel. 13 24 1. A medical review panel may be established for the purpose 13 25 of reviewing a proposed malpractice complaint against a health 13 26 care provider qualified under this chapter. 13 27 2. Not earlier than twenty days after the filing of a 13 28 proposed complaint under section 519B.8, either party to the 13 29 complaint may request the formation of a medical review panel 13 30 by serving a request by registered or certified mail upon all 13 31 parties and the commissioner. 13 32 3. A medical review panel established pursuant to this 13 33 section shall consist of one attorney and three health care 13 34 providers. 13 35 a. The attorney member of the medical review panel shall 14 1 act as the chair of the panel and in an advisory capacity as a 14 2 nonvoting member. 14 3 b. The chair of the medical review panel shall expedite the 14 4 selection of the other panel members, convene the panel, and 14 5 expedite the panel's review of the proposed complaint. The 14 6 chair shall establish a reasonable schedule for submission of 14 7 evidence to the medical review panel that allows sufficient 14 8 time for the parties to make full and adequate presentation of 14 9 related facts and authorities. 14 10 4. A medical review panel chair shall be selected as 14 11 follows: 14 12 a. Within fifteen days after the filing of a request 14 13 for formation of a medical review panel under subsection 2, 14 14 the parties shall select a panel chair by agreement. If no 14 15 agreement on a panel chair can be reached, either party may 14 16 request the clerk of the supreme court to draw at random a list 14 17 of five names of attorneys who meet the following requirements: 14 18 (1) Are qualified to practice. 14 19 (2) Are presently licensed to practice in the state. 14 20 (3) Maintain offices in the county of venue designated in 14 21 the proposed complaint or in a contiguous county. 14 22 b. Before selecting the random list, the clerk shall collect 14 23 a fee, as provided by rules adopted under chapter 17A, from the 14 24 party making the request for the formation of the random list. 14 25 c. The clerk shall notify the parties, and the parties shall 14 26 then strike names alternately, with the plaintiff striking 14 27 first, until one name remains. The remaining attorney shall be 14 28 the chair of the panel. 14 29 d. After the striking procedure, the plaintiff shall notify 14 30 the chair and all other parties of the name of the chair 14 31 selected. 14 32 e. If a party does not strike a name from the list within 14 33 five days after receiving notice from the clerk, the opposing 14 34 party shall, in writing, request the clerk to strike for the 14 35 party and the clerk shall strike for the party. 15 1 f. When one name remains, the clerk shall within five days 15 2 notify the chair and all other parties of the name of the 15 3 chair. 15 4 g. Within fifteen days after being notified by the clerk 15 5 of being selected as chair, the chair shall do one of the 15 6 following: 15 7 (1) Send a written acknowledgment of appointment to the 15 8 clerk. 15 9 (2) Show good cause for relief from serving as provided in 15 10 subsection 7. 15 11 5. Health care providers shall be selected for a medical 15 12 review panel as follows: 15 13 a. Except for health care providers who are health facility 15 14 administrators, all health care providers in the state, whether 15 15 in the teaching profession or otherwise, shall be available 15 16 for selection as members of a medical review panel. A health 15 17 facility administrator shall not be a member of a medical 15 18 review panel. 15 19 b. Each party to the action has the right to select one 15 20 health care provider, and upon selection, the two health care 15 21 providers selected shall select a third health care provider 15 22 to be a panelist. 15 23 c. If there are multiple plaintiffs or defendants, only 15 24 one health care provider shall be selected per side. The 15 25 plaintiff, whether single or multiple, has the right to select 15 26 one health care provider, and the defendant, whether single or 15 27 multiple, has the right to select one health care provider. 15 28 d. Notwithstanding paragraph "c", if there is only one 15 29 party defendant and that defendant is an individual, two of the 15 30 panelists selected shall be members of the profession of which 15 31 the defendant is a member. If the individual defendant is a 15 32 health care provider who specializes in a limited area, two 15 33 of the panelists selected shall be health care providers who 15 34 specialize in the same area as the defendant. 15 35 e. Within fifteen days after the chair of the panel is 16 1 selected, both parties shall select a health care provider and 16 2 the parties shall notify the other party and the chair of their 16 3 selection. If a party fails to make a selection within the 16 4 time provided, the chair shall make the selection and notify 16 5 both parties. Within fifteen days after their selection, the 16 6 health care provider members shall select the third member 16 7 within the time provided and notify the chair and the parties. 16 8 If the providers fail to make a selection, the chair shall make 16 9 the selection and notify both parties. 16 10 f. Within ten days after the selection of a panel member, 16 11 written challenge without cause may be made to the panel 16 12 member. Upon challenge or excuse, the party whose appointee 16 13 was challenged or dismissed shall select another panelist. 16 14 If the challenged or dismissed member was selected by the 16 15 other two panel members, the panel members shall make a new 16 16 selection. If two such challenges are made and submitted, 16 17 the chair shall within ten days appoint a panel consisting of 16 18 three qualified panelists and each side shall, within ten days 16 19 after the appointment, strike one panelist. The party whose 16 20 appointment was challenged shall strike last, and the remaining 16 21 member shall serve. 16 22 6. When a medical review panel is formed, the chair shall, 16 23 within five days, notify the commissioner and the parties by 16 24 registered or certified mail of the names and addresses of 16 25 the panel members and the date on which the last member was 16 26 selected. 16 27 7. a. A member of a medical review panel who is selected 16 28 under this chapter shall serve unless either of the following 16 29 occurs: 16 30 (1) The parties by agreement excuse the panelist. 16 31 (2) The panelist is excused as provided in this subsection 16 32 for good cause shown. 16 33 b. To show good cause for relief from serving, the attorney 16 34 selected as chair of the medical review panel shall serve an 16 35 affidavit upon the clerk of the supreme court that sets out the 17 1 facts showing that service would constitute an unreasonable 17 2 burden or undue hardship. Upon such a showing, the clerk shall 17 3 excuse the attorney from serving. The attorney shall notify 17 4 all parties that the attorney is excused and the parties shall 17 5 then select a new chair as provided in subsection 4. 17 6 c. To show good cause for relief from serving, a health 17 7 care provider member of a medical review panel shall serve an 17 8 affidavit upon the panel chair. The affidavit shall set out 17 9 the facts showing that service would constitute an unreasonable 17 10 burden or undue hardship. Upon such a showing, the chair shall 17 11 excuse the member from serving. The chair shall notify all 17 12 parties that the member is excused and the parties shall select 17 13 a new member as provided in subsection 5. 17 14 8. a. The panel shall render its expert opinion within 17 15 one hundred eighty days after the selection of the last member 17 16 of the initial panel. However, the panel has ninety days 17 17 after the selection of a new panel member to render its expert 17 18 opinion if either of the following occurs: 17 19 (1) The chair of the panel is removed under subsection 10, 17 20 another member of the panel is removed under subsection 11, or 17 21 any member of the panel, including the chair, is removed by a 17 22 court order. 17 23 (2) A new member is selected to replace the removed member 17 24 more than ninety days after the last member of the initial 17 25 panel is selected. 17 26 b. If the panel does not render an opinion within the time 17 27 allowed under paragraph "a", the panel shall submit a report to 17 28 the commissioner, stating the reasons for the delay. 17 29 9. A party, attorney, or panelist who fails to act as 17 30 required by this section without good cause is subject to 17 31 mandate or appropriate sanctions upon application to the court 17 32 designated in the proposed complaint as having jurisdiction. 17 33 10. The commissioner may remove the chair of the panel if 17 34 the commissioner determines that the chair is not fulfilling 17 35 the duties imposed upon the chair by this section. If the 18 1 chair is removed under this subsection, a new chair shall be 18 2 selected as required in this section. 18 3 11. The chair of the panel may remove a member of the panel 18 4 if the chair determines that the member is not fulfilling the 18 5 duties imposed upon a panel member by this chapter. If a 18 6 member is removed under this subsection, a new member shall be 18 7 selected as required in this section. 18 8 12. a. The evidence in written form to be considered by 18 9 the medical review panel shall be promptly submitted by the 18 10 respective parties. 18 11 (1) The evidence may consist of medical charts, x=rays, 18 12 lab tests, excerpts of treatises, depositions of witnesses 18 13 including parties, and any other form of evidence allowed by 18 14 the medical review panel. 18 15 (2) Depositions of parties and witnesses may be taken before 18 16 the convening of the panel. 18 17 b. The chair shall ensure that before the panel renders its 18 18 expert opinion under subsection 17, each panel member has the 18 19 opportunity to review every item of evidence submitted by the 18 20 parties. 18 21 c. Before considering any evidence or deliberating with 18 22 other panel members, each member of the medical review panel 18 23 shall take an oath in writing on a form provided by the panel 18 24 chair which shall read as follows: 18 25 "I swear under penalty of perjury that I will well and 18 26 truly consider the evidence submitted by the parties; that I 18 27 will render my opinion without bias, based upon the evidence 18 28 submitted by the parties; and that I have not and will not 18 29 communicate with any party or representative of a party before 18 30 rendering my opinion, except as authorized by law." 18 31 13. A party, a party's agent, a party's attorney, or a 18 32 party's malpractice insurer shall not communicate with any 18 33 member of the panel, except as authorized by law, before the 18 34 panel renders an expert opinion under subsection 17. 18 35 14. The chair of the panel shall advise the panel relative 19 1 to any legal question involved in the review proceeding 19 2 and shall prepare the opinion of the panel as provided in 19 3 subsection 17. 19 4 15. Either party, after submission of all evidence and 19 5 upon ten days' notice to the other side, has the right to 19 6 convene the panel at a time and place agreeable to the members 19 7 of the panel. Either party may question the panel concerning 19 8 any matters relevant to issues to be decided by the panel 19 9 before the issuance of the panel's report. The chair of the 19 10 panel shall preside at all meetings convened pursuant to this 19 11 subsection and the meetings shall be informal. 19 12 16. a. The panel has the right and duty to request all 19 13 necessary information. 19 14 b. The panel may consult with medical authorities. 19 15 c. The panel may examine reports of other health care 19 16 providers necessary to fully inform the panel regarding the 19 17 issue to be decided. 19 18 d. Both parties shall have full access to any material 19 19 submitted to the panel. 19 20 17. a. The panel has the sole duty to express the panel's 19 21 expert opinion as to whether or not the evidence supports the 19 22 conclusion that the defendant or defendants acted or failed to 19 23 act within the appropriate standards of care as charged in the 19 24 proposed complaint. 19 25 b. After reviewing all evidence and after any examination 19 26 of the panel by counsel representing either party, the panel 19 27 shall, within thirty days, render one or more of the following 19 28 expert opinions, which shall be in writing and signed by the 19 29 panelists: 19 30 (1) The evidence supports the conclusion that the defendant 19 31 or defendants failed to comply with the appropriate standard of 19 32 care as charged in the proposed complaint. 19 33 (2) The evidence does not support the conclusion that the 19 34 defendant or defendants failed to comply with the appropriate 19 35 standard of care as charged in the proposed complaint. 20 1 (3) There is a material issue of fact, not requiring expert 20 2 opinion, bearing on liability for consideration by the court 20 3 or jury. 20 4 (4) The conduct complained of was or was not a factor in the 20 5 resultant damages, and if so, whether the plaintiff suffered 20 6 either of the following: 20 7 (a) Any disability and the extent and duration of the 20 8 disability. 20 9 (b) Any permanent impairment and the percentage of 20 10 impairment. 20 11 18. A report of the expert opinion rendered by the 20 12 medical review panel is admissible as evidence in any action 20 13 subsequently brought by the plaintiff in a court of law. 20 14 However, the expert opinion is not conclusive, and either 20 15 party, at the party's cost, has the right to call any member of 20 16 the medical review panel as a witness. If called as a witness, 20 17 the member shall appear and testify. 20 18 19. A panelist has absolute immunity from civil liability 20 19 for all communications, findings, opinions, and conclusions 20 20 made in the course and scope of duties prescribed by this 20 21 chapter. 20 22 20. a. Each health care provider member of the medical 20 23 review panel is entitled to be paid the following: 20 24 (1) Up to three hundred fifty dollars for all work performed 20 25 as a member of the panel, exclusive of time involved if called 20 26 as a witness to testify in court. 20 27 (2) Reasonable travel expenses. 20 28 b. The chair of the panel is entitled to be paid the 20 29 following: 20 30 (1) The rate of two hundred fifty dollars per diem, not to 20 31 exceed two thousand dollars. 20 32 (2) Reasonable travel expenses. 20 33 c. The chair shall keep an accurate record of the time and 20 34 expenses of all members of the panel. The records shall be 20 35 submitted to the parties for payment with the panel's report. 21 1 d. Fees of the panel, including travel expenses and other 21 2 expenses of the review, shall be paid by the side in whose 21 3 favor the majority opinion is rendered. If there is not a 21 4 majority opinion, each side shall pay fifty percent of the 21 5 fees. 21 6 21. The chair shall submit a copy of the panel's report to 21 7 the commissioner and to all parties and attorneys by registered 21 8 or certified mail within five days after the panel renders its 21 9 opinion. 21 10 Sec. 11. NEW SECTION. 519B.11 Preliminary determination of 21 11 affirmative defense or issue of law or fact == discovery. 21 12 1. a. A court having jurisdiction over the subject 21 13 matter and the parties to a proposed complaint filed with the 21 14 commissioner under this chapter may, upon the filing of a copy 21 15 of the proposed complaint and a written motion made under this 21 16 section, do any of the following: 21 17 (1) Preliminarily determine an affirmative defense or issue 21 18 of law or fact that may be preliminarily determined under the 21 19 Iowa rules of civil procedure. 21 20 (2) Compel discovery in accordance with the Iowa rules of 21 21 civil procedure. 21 22 b. The court has no jurisdiction to rule preliminarily 21 23 upon any affirmative defense or issue of law or fact reserved 21 24 for written expert opinion by the medical review panel under 21 25 section 519B.10, subsection 17, paragraph "b", subparagraph 21 26 (1), (2), or (4). 21 27 c. The court has jurisdiction to entertain a motion filed 21 28 under this subsection only during that time after a proposed 21 29 complaint is filed with the commissioner under section 519B.8, 21 30 but before the medical review panel renders the panel's opinion 21 31 under section 519B.10, subsection 17. 21 32 d. The failure of any party to move for a preliminary 21 33 determination or to compel discovery under this subsection 21 34 before the medical review panel renders the panel's written 21 35 opinion under section 519B.10, subsection 17, does not 22 1 constitute the waiver of any affirmative defense or issue of 22 2 law or fact. 22 3 2. a. A party to a proceeding commenced under this chapter, 22 4 the commissioner, or the chair of a medical review panel, if 22 5 any, may invoke the jurisdiction of the court by paying the 22 6 required filing fee to the clerk and filing a copy of the 22 7 proposed complaint and motion with the clerk. 22 8 b. The filing of a copy of the proposed complaint and 22 9 motion with the clerk confers jurisdiction upon the court over 22 10 the subject matter and the parties to the proceeding for the 22 11 limited purposes stated in this section, including the taxation 22 12 and assessment of costs or the allowance of expenses, including 22 13 reasonable attorney fees, or both. 22 14 c. The moving party or the moving party's attorney shall 22 15 cause as many summonses as are necessary to be issued by the 22 16 clerk and served on the commissioner, each nonmoving party to 22 17 the proceedings, and the chair of the medical review panel, if 22 18 any, unless the commissioner or the chair is the moving party, 22 19 together with a copy of the proposed complaint and a copy of 22 20 the motion pursuant to the Iowa rules of civil procedure. 22 21 3. a. Each nonmoving party to the proceeding, including 22 22 the commissioner and the chair of the medical review panel, if 22 23 any, shall have a period of twenty days after service to appear 22 24 and file and serve a written response to the motion, unless the 22 25 court, for cause shown, orders the period enlarged. 22 26 b. The court shall enter a ruling on the motion as follows: 22 27 (1) Within thirty days after the motion is heard. 22 28 (2) If no hearing is requested, granted, or ordered, within 22 29 thirty days after the date on which the last written response 22 30 to the motion is filed. 22 31 c. The court shall order the clerk to serve a copy of 22 32 the proposed complaint and motion by ordinary mail on the 22 33 commissioner, each party to the proceeding, and the chair of 22 34 the medical review panel. 22 35 4. Upon the filing of a copy of the proposed complaint and 23 1 motion with the clerk of court, all further proceedings before 23 2 the medical review panel shall be automatically stayed until 23 3 the court has entered a ruling on the motion. 23 4 5. The court may enforce its ruling on any motion filed 23 5 under this section in accordance with the Iowa rules of civil 23 6 procedure. 23 7 Sec. 12. NEW SECTION. 519B.12 Liability based on breach of 23 8 contract == informed consent. 23 9 1. Liability shall not be imposed on a health care provider 23 10 qualified under this chapter on the basis of an alleged 23 11 breach of contract, express or implied, assuring results to be 23 12 obtained from any treatment, procedure, examination, or test 23 13 undertaken in the course of health care, unless the contract 23 14 is in writing and signed by that health care provider or by an 23 15 authorized agent of the health care provider. 23 16 2. For purposes of this chapter, a rebuttable presumption is 23 17 created that consent to any treatment, procedure, examination, 23 18 or test undertaken in the course of health care is informed 23 19 consent if a patient's written consent meets all of the 23 20 following requirements: 23 21 a. Is signed by the patient or the patient's authorized 23 22 representative. 23 23 b. Is witnessed by an individual at least eighteen years of 23 24 age. 23 25 c. Is explained, orally or in the written consent, to the 23 26 patient or the patient's authorized representative before a 23 27 treatment, procedure, examination, or test is undertaken. 23 28 3. The explanation required in subsection 2, paragraph "c", 23 29 shall include all of the following information: 23 30 a. The general nature of the patient's condition. 23 31 b. The proposed treatment, procedure, examination, or test. 23 32 c. The expected outcome of the treatment, procedure, 23 33 examination, or test. 23 34 d. The reasonable alternatives to the treatment, procedure, 23 35 examination, or test. 24 1 4. This section does not do any of the following: 24 2 a. Relieve a health care provider qualified under this 24 3 chapter of the duty to obtain an informed consent. 24 4 b. Prevent a patient, after having signed a consent, from 24 5 withdrawing that consent. 24 6 c. Require that a patient's consent or the information 24 7 described in subsection 3 be in writing in all cases. 24 8 5. Compliance with this chapter is not required to create an 24 9 informed consent. 24 10 6. A patient may refuse to receive some or all of the 24 11 information described in subsection 3. 24 12 7. Subsections 2 and 3 do not apply to a person who is 24 13 mentally incapable of understanding the information required 24 14 to be provided in subsection 3. 24 15 8. This section does not require consent to health care in 24 16 an emergency. 24 17 Sec. 13. NEW SECTION. 519B.13 Malpractice coverage. 24 18 1. The liability of a health care provider qualified under 24 19 this chapter and the health care provider's medical malpractice 24 20 insurer to a patient or the patient's representative for 24 21 malpractice is limited to the extent and in the manner 24 22 specified in this chapter only while medical malpractice 24 23 insurance remains in force. 24 24 2. The establishment of financial responsibility with the 24 25 commissioner pursuant to section 519B.4 constitutes, on the 24 26 part of the medical malpractice insurer, a conclusive and 24 27 unqualified acceptance of the provisions of this chapter. 24 28 3. A provision in a medical malpractice insurance policy 24 29 that attempts to limit or modify the liability of an insurer 24 30 contrary to the provisions of this chapter is void. 24 31 4. Every policy of medical malpractice insurance issued 24 32 pursuant to this chapter is deemed to include the following 24 33 provisions, and any changes made by legislation adopted by the 24 34 general assembly, as fully as if the provision or change were 24 35 written in the policy: 25 1 a. The insurer assumes all obligations to pay an award 25 2 imposed against its insured under this chapter. 25 3 b. A termination of a medical malpractice insurance policy 25 4 by cancellation initiated by the insurer is not effective 25 5 for patients claiming against the insured covered by the 25 6 policy unless at least thirty days before the cancellation 25 7 takes effect, a written notice giving the date upon which the 25 8 termination becomes effective has been received by the insured 25 9 and the commissioner at their offices. 25 10 c. A termination of a medical malpractice insurance policy 25 11 by cancellation initiated by the insured is not effective 25 12 for patients claiming against the insured covered by the 25 13 policy unless at least thirty days before the cancellation 25 14 takes effect, a written notice giving the date upon which 25 15 the termination becomes effective has been received by the 25 16 commissioner at the commissioner's offices. 25 17 5. If a medical malpractice insurer fails or refuses to pay 25 18 a final judgment, except during the pendency of an appeal, or 25 19 fails or refuses to comply with the provisions of this chapter, 25 20 in addition to any other legal remedy, the commissioner may 25 21 also revoke the approval of the insurer's policy form until the 25 22 insurer pays the award or judgment or has complied with any 25 23 other provision of this chapter and has resubmitted its policy 25 24 form and received the approval of the commissioner. 25 25 Sec. 14. NEW SECTION. 519B.14 Limits on damages. 25 26 1. a. The total amount recoverable in an action under this 25 27 chapter for an injury to or death of a patient shall not exceed 25 28 one million two hundred fifty thousand dollars for an act of 25 29 malpractice that occurs after January 1, 2018. 25 30 b. A health care provider qualified under this chapter 25 31 is not liable for an amount in excess of two hundred fifty 25 32 thousand dollars for an occurrence of malpractice. 25 33 c. Any amount due from a judgment or settlement that is 25 34 in excess of the total liability of all liable health care 25 35 providers, subject to paragraph "a", "b", or "d", shall be paid 26 1 from the patient compensation fund under section 519B.6. 26 2 d. If a health care provider qualified under this chapter 26 3 admits liability or is adjudicated liable solely by reason of 26 4 the conduct of another health care provider who is an officer, 26 5 agent, or employee of the health care provider acting in 26 6 the course and scope of employment and qualified under this 26 7 chapter, the total amount that shall be paid to the claimant 26 8 on behalf of the officer, agent, or employee and the health 26 9 care provider by the health care provider or the provider's 26 10 medical malpractice insurer is two hundred fifty thousand 26 11 dollars. The balance of an adjudicated amount to which the 26 12 claimant is entitled shall be paid by the other liable health 26 13 care providers or from the patient compensation fund, or both. 26 14 2. a. If the possible liability of a health care provider 26 15 to a patient is discharged solely through an immediate payment, 26 16 the limitations on recovery from a health care provider 26 17 stated in subsection 1, paragraphs "b" and "d", apply without 26 18 adjustment. 26 19 b. If the health care provider agrees to discharge its 26 20 possible liability for the patient through a periodic payments 26 21 agreement, the amount of the patient's recovery from a health 26 22 care provider in a case under this subsection is the amount of 26 23 any immediate payment made by the health care provider or the 26 24 health care provider's insurer to the patient, plus the cost 26 25 of the periodic payments agreement to the health care provider 26 26 or the health care provider's insurer. For the purpose of 26 27 determining the limitations on recovery stated in subsection 26 28 1, paragraphs "b" and "d", and for the purpose of determining 26 29 the question under section 519B.15 of whether the health care 26 30 provider or the health care provider's insurer has agreed to 26 31 settle its liability by payment of its policy limits, the sum 26 32 of both of the following must exceed one hundred eighty=seven 26 33 thousand dollars: 26 34 (1) The present payment of moneys to the patient or the 26 35 patient's estate by the health care provider or the health care 27 1 provider's insurer. 27 2 (2) The cost of the periodic payments agreement expended by 27 3 the health care provider or the health care provider's insurer. 27 4 c. More than one health care provider may contribute to 27 5 the cost of a periodic payments agreement, and in such an 27 6 instance the sum of the amounts expended by each health care 27 7 provider for immediate payment and for the cost of the periodic 27 8 payments agreement shall be used to determine whether the one 27 9 hundred eighty=seven thousand dollar requirement in paragraph 27 10 "b" has been satisfied. However, one health care provider or 27 11 the health care provider's insurer must be liable for at least 27 12 fifty thousand dollars. 27 13 3. a. If the possible liability of the patient compensation 27 14 fund to the patient is discharged solely through a direct 27 15 payment made under section 519B.15, the limitations on recovery 27 16 from the patient compensation fund apply without adjustment. 27 17 b. If an agreement is made to discharge the fund's possible 27 18 liability to the patient through a periodic payments agreement, 27 19 the amount of the patient's recovery from the fund for the 27 20 purpose of the limitation on recovery from the fund is the sum 27 21 of the following: 27 22 (1) The amount of any immediate payment made directly to the 27 23 patient from the fund. 27 24 (2) The cost of the periodic payments agreement paid by the 27 25 commissioner on behalf of the fund. 27 26 Sec. 15. NEW SECTION. 519B.15 Payment from patient 27 27 compensation fund. 27 28 1. An obligation to pay an amount from the patient 27 29 compensation fund may be discharged as follows: 27 30 a. Payment in one lump amount. 27 31 b. An agreement requiring periodic payments from the fund 27 32 over a period of years. 27 33 c. The purchase of an annuity payable to the patient. 27 34 d. Any combination of payments made pursuant to paragraph 27 35 "a", "b", or "c". 28 1 2. The commissioner may contract with approved insurers to 28 2 ensure the ability of the fund to make periodic payments under 28 3 subsection 1, paragraph "b". 28 4 3. Notwithstanding section 519B.16, the commissioner may 28 5 do any of the following: 28 6 a. Discharge the possible liability of the patient 28 7 compensation fund to a patient through a periodic payments 28 8 agreement. 28 9 b. Combine moneys from the patient compensation fund with 28 10 moneys of the health care provider or the provider's insurer 28 11 to pay the cost of the periodic payments agreement with the 28 12 patient or the patient's estate. However, the amount provided 28 13 by the commissioner shall not exceed eighty percent of the 28 14 total amount expended for the agreement. 28 15 4. If a health care provider or the provider's insurer has 28 16 agreed to settle the provider's liability on a claim by payment 28 17 of the policy limits of two hundred fifty thousand dollars, and 28 18 the claimant is demanding an amount in excess of that amount, 28 19 the following procedure shall be followed: 28 20 a. A petition shall be filed by the claimant in the 28 21 court named in the proposed complaint, seeking either of the 28 22 following: 28 23 (1) Approval of an agreed settlement, if any. 28 24 (2) Payment of a demand for damages from the patient 28 25 compensation fund. 28 26 b. A copy of the petition with summons shall be served on 28 27 the commissioner, the health care provider, and the health care 28 28 provider's insurer, and shall contain sufficient information to 28 29 inform the other parties about the nature of the claim and the 28 30 additional amount demanded. 28 31 c. The commissioner and either the health care provider 28 32 or the provider's insurer may agree to a settlement with 28 33 the claimant from the patient compensation fund, or the 28 34 commissioner, the health care provider, or the provider's 28 35 insurer may file written objections to payment of the amount 29 1 demanded. The agreement or objections to the payment demanded 29 2 shall be filed within twenty days after service of a summons 29 3 with a copy of the petition attached. 29 4 d. The judge of the court in which the petition is filed 29 5 shall set the petition for approval or, if objections have been 29 6 filed, for hearing as soon as practicable. The court shall 29 7 give notice of the hearing to the claimant, the health care 29 8 provider, the provider's insurer, and the commissioner. 29 9 e. At the hearing, the commissioner, the claimant, the 29 10 health care provider, and the provider's insurer may introduce 29 11 relevant evidence to enable the court to determine whether 29 12 or not the petition should be approved if the evidence 29 13 is submitted on agreement without objections. If the 29 14 commissioner, the health care provider, the provider's insurer, 29 15 and the claimant cannot agree on the amount, if any, to be paid 29 16 out of the patient compensation fund, the court shall, after 29 17 hearing any relevant evidence on the issue of the claimant's 29 18 damages submitted by any of the parties described in this 29 19 paragraph, determine the amount of the claimant's damages, 29 20 if any, in excess of the two hundred fifty thousand dollars 29 21 already paid by the insurer of the health care provider. The 29 22 court shall determine the amount for which the fund is liable 29 23 and make a finding and judgment accordingly. In approving 29 24 a settlement or determining the amount, if any, to be paid 29 25 from the patient compensation fund, the court shall consider 29 26 the liability of the health care provider as admitted and 29 27 established. 29 28 f. A settlement approved by the court is not subject to 29 29 appeal. A judgment of the court fixing damages recoverable 29 30 in a contested proceeding is appealable pursuant to the rules 29 31 governing appeals in any other civil case tried by the court. 29 32 g. A release executed between the parties does not bar 29 33 access to the patient compensation fund unless the release 29 34 specifically provides otherwise. 29 35 5. If a health care provider or the health care provider's 30 1 surety or liability insurance carrier fails to pay any agreed 30 2 settlement or final judgment within ninety days, the agreed 30 3 settlement or final judgment shall be paid from the patient 30 4 compensation fund, and the fund shall be subrogated to any and 30 5 all of the claimant's rights against the health care provider, 30 6 the health care provider's surety or liability insurance 30 7 carrier, or both, with interest, reasonable costs, and attorney 30 8 fees. 30 9 Sec. 16. NEW SECTION. 519B.16 Evidence of advance payment 30 10 == assignability of claim. 30 11 1. Except as provided in section 519B.15, any advance 30 12 payment made by the defendant health care provider or the 30 13 health care provider's insurer to or for the plaintiff or 30 14 any other person shall not be construed as an admission of 30 15 liability for injuries or damages suffered by the plaintiff or 30 16 anyone else in an action brought for medical malpractice. 30 17 2. a. Evidence of an advance payment is not admissible 30 18 until there is a final judgment in favor of the plaintiff. 30 19 In this case, the court shall reduce the judgment to the 30 20 plaintiff to the extent of the advance payment. The advance 30 21 payment inures to the exclusive benefit of the defendant or the 30 22 defendant's insurer making the payment. 30 23 b. If the advance payment exceeds the liability of the 30 24 defendant or the insurer making the advance payment, the court 30 25 shall order any adjustment necessary to equalize the amount 30 26 that each defendant is obligated to pay, exclusive of costs. 30 27 An advance payment in excess of an award is not repayable by 30 28 the person receiving the advance payment. 30 29 3. A patient's claim for compensation under this chapter is 30 30 not assignable. 30 31 Sec. 17. NEW SECTION. 519B.17 Attorney fees. 30 32 1. When a plaintiff is represented by an attorney in the 30 33 prosecution of the plaintiff's claim, the plaintiff's attorney 30 34 fees from any award made from the patient compensation fund 30 35 shall not exceed fifteen percent of any recovery from the fund. 31 1 2. A patient has the right to elect to pay for an attorney's 31 2 services on a mutually satisfactory per diem basis. The 31 3 election, however, shall be exercised in written form at the 31 4 time of employment of the attorney. 31 5 EXPLANATION 31 6 The inclusion of this explanation does not constitute agreement with 31 7 the explanation's substance by the members of the general assembly. 31 8 This bill creates new Code chapter 519B relating to medical 31 9 malpractice liability and insurance coverage in the state. 31 10 The bill applies to health care providers, including 31 11 individuals, hospitals, and health care facilities, that 31 12 qualify under the new Code chapter by establishing financial 31 13 responsibility and paying a surcharge. A health care provider 31 14 establishes financial responsibility by filing proof with 31 15 the commissioner of insurance that the provider has medical 31 16 malpractice insurance coverage of at least $250,000 per 31 17 occurrence and $750,000 in the annual aggregate. Health care 31 18 providers that are hospitals or health care facilities are 31 19 subject to different amounts based on the number of beds. 31 20 Financial responsibility can also be established by filing and 31 21 maintaining a surety bond, or if the provider is a hospital, by 31 22 submitting a verified financial statement. 31 23 Beginning January 1, 2018, the bill provides that an annual 31 24 surcharge shall be assessed on all health care providers that 31 25 seek to qualify under new Code chapter 519B in the state to 31 26 create a source of moneys for a patient compensation fund. 31 27 Beginning January 1, 2018, the amount of the annual surcharge 31 28 is 100 percent of the cost to each provider of maintaining 31 29 financial responsibility except that surcharges assessed 31 30 against physicians and hospitals are based on calculations 31 31 of actuarial risk. Beginning January 1, 2020, the annual 31 32 surcharge is to be set by rules adopted by the commissioner 31 33 that meet specified requirements. The surcharge is collected 31 34 on the same basis as premiums by each medical malpractice 31 35 insurer and remitted by each insurer to the commissioner for 32 1 deposit into the patient compensation fund. 32 2 The patient compensation fund is established under the 32 3 custody of the treasurer of state and consists of payments to 32 4 the fund as well as accumulated interest and earnings. Moneys 32 5 in the fund shall be disbursed only for the purposes set forth 32 6 in the bill, including reimbursements to the attorney general 32 7 for representing the fund. 32 8 The bill provides that a patient must file a malpractice 32 9 claim within two years from the alleged act of malpractice 32 10 against a health care provider that has qualified under the 32 11 bill's provisions. However, minors under the age of six have 32 12 until their eighth birthday to file. 32 13 An action for medical malpractice against a health care 32 14 provider who has qualified under the provisions of the bill 32 15 cannot be commenced in court until the claimant's proposed 32 16 complaint has been presented to a medical review panel and 32 17 an opinion on the complaint has been rendered by the panel. 32 18 However, the parties can commence an action in court if the 32 19 parties agree to forgo submission to a medical review panel or 32 20 the claimant seeks damages of $15,000 or less. 32 21 Within 10 days after receiving a proposed complaint, the 32 22 commissioner must forward a copy of the complaint to each 32 23 health care provider named as a defendant. A medical review 32 24 panel may be established for the purpose of reviewing a 32 25 proposed malpractice complaint against a health care provider 32 26 qualified under the new Code chapter. Either party to the 32 27 proposed complaint can request the formation of a medical 32 28 review panel. 32 29 A medical review panel consists of one attorney, who acts 32 30 as the chair and is a nonvoting member, and three health care 32 31 providers. The attorney member is selected by the parties, 32 32 but if they cannot agree, then the clerk of the supreme court 32 33 generates a random list of five attorneys from which the 32 34 parties strike names alternately until one name remains. 32 35 All health care providers in the state, except health care 33 1 facility administrators, must be available for selection 33 2 as panel members. Each party to the action is entitled to 33 3 select one health care provider, and upon selection, the two 33 4 health care providers select a third health care provider to 33 5 complete the panel. If there is a single defendant, two of the 33 6 panelists must be in the same health care profession as the 33 7 defendant. If the defendant specializes in a limited area, two 33 8 of the panelists must be specialists in that area. 33 9 The medical review panel is required to render an expert 33 10 opinion within 180 days after the selection of the last member 33 11 of the initial panel, or submit a report to the commissioner 33 12 stating the reason for the delay. Evidence that may be 33 13 submitted to the panel includes medical charts, x=rays, 33 14 lab tests, excerpts of treatises, depositions of witnesses, 33 15 including parties, and any other form of evidence allowed by 33 16 the panel. The panel may consult with medical authorities and 33 17 examine reports of other health care providers for information. 33 18 The chair of the panel provides advice on any legal questions 33 19 involved in the review and prepares the panel's opinion. Any 33 20 party may informally convene the panel to question the panel 33 21 about issues to be decided. 33 22 Thirty days after completing its review, the panel must 33 23 render one or more of the following expert opinions: (1) the 33 24 evidence supports the conclusion that the defendant failed 33 25 to comply with the appropriate standard of care; (2) the 33 26 evidence does not support the conclusion that the defendant 33 27 failed to meet the appropriate standard of care; (3) there is a 33 28 material issue of fact not requiring expert opinion, bearing on 33 29 liability, for consideration by the court or jury; or (4) the 33 30 conduct complained of was or was not a factor in the resultant 33 31 damages and if so, any disability and its extent and duration, 33 32 and any permanent impairment and its percentage. 33 33 A report of the medical review panel is admissible in 33 34 evidence in any action subsequently brought by the plaintiff 33 35 in a court of law, although the expert opinion rendered is not 34 1 conclusive. Panelists have absolute immunity from liability 34 2 for performing their duties. The bill specifies payment for 34 3 panelists and the chair. 34 4 The bill provides that a health care provider qualified 34 5 under the new Code chapter is not liable for an amount in 34 6 excess of $250,000 for an occurrence of malpractice. The total 34 7 amount recoverable for an injury or death of a patient cannot 34 8 exceed $1.25 million for an act of malpractice that occurs 34 9 after January 1, 2018. Any amount due against a health care 34 10 provider in excess of $250,000 and up to the capped amount is 34 11 paid from the patient compensation fund. Payments from the 34 12 patient compensation fund can be made in one lump sum, by an 34 13 agreement to make periodic payments over a period of years, 34 14 by purchase of an annuity payable to the patient, or by any 34 15 combination of the above. When a patient is represented by 34 16 an attorney in the prosecution of the patient's claim, that 34 17 attorney's fees from any award from the patient compensation 34 18 fund cannot exceed 15 percent of the recovery. A patient may 34 19 elect to pay the attorney on a mutually satisfactory per diem 34 20 basis pursuant to a written agreement. LSB 1663XS (6) 87 av/nh
