Iowa Tightens Qualifications for Medical Expert Witnesses

Under new tort reforms in Iowa, seen as a win for physicians, any health care expert witness in a malpractice case must be licensed in the same or substantially similar speciality as the defendant and be in active practice or in academia in the five years before the incident, as well as other siginificant changes to expert witness requirements.

The new law, which takes effect July 1, 2017, requries expert witnesses to provide a signed certificate of merit affidavit for each defenant name in the petition, stating the expert's familiarity with the applicable standard of care and that the standard of care was breached by the health care provide named in the petition. These affidavits must be served on defendants before discovery and within sixty days fof the defendant's answer. If the deadline is missed, the lawsuit must be dismissed and cannot be refilled.

The legislation also expands on Iowa's Candor protections. Initially enacted in 2015 to shield physicians from having their discussions of adverse outcomes later used in court, the law cover only physicians' discussions involving a patient's death or serious physical injury. That has expanded to now include "any physical injury" and it now can be used to protect any discussions by any member of the health care team.

While the direct impact of the legislation on health care expert witnesses may not be all negative — some cases may now require more experts — the number of malpractice cases is expected to drop due to the most critical aspect of the tort reform: limiting noneconomic damage-awards (eg. pain and suffering) to $250,000, except in cases where the jury concludes that the malpractice resulted in "substantial or permanent loss or impairment of bodily function, substantial disfigurement or death."

Senate File 465 — Enrolled

SENATE FILE
BY COMMITTEE ON JUDICIARY

(SUCCESSOR TO SSB
1087)
\5
A BILL FOR
\1
Senate File 465

AN ACT
RELATING TO MEDICAL MALPRACTICE CLAIMS, INCLUDING
NONECONOMIC DAMAGE AWARDS AND EXPERT WITNESSES, AND
INCLUDING APPLICABILITY PROVISIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. Section 135P.1, subsections 1 and 2, Code 2017,
are amended to read as follows:
1. "Adverse health care incident" means an objective and
definable outcome arising from or related to patient care that
results in the death or serious physical injury of a patient.
2. "Health care provider" means a physician or osteopathic
physician licensed under chapter 148, a physician assistant
licensed under and practicing under a supervising physician
pursuant to chapter 148C, a podiatrist licensed under chapter
149, or a chiropractor licensed under chapter 151, a licensed
practical nurse, a registered nurse, or an advanced registered
nurse practitioner licensed pursuant to under chapter 152 or
152E, a dentist licensed under chapter 153, an optometrist
licensed under chapter 154, a pharmacist licensed under chapter
155A, or any other person who is licensed, certified, or
otherwise authorized or permitted by the law of this state to
administer health care in the ordinary course of business or in
the practice of a profession.
Sec. 2. NEW SECTION. 147.136A Noneconomic damage awards
against health care providers.
1. For purposes of this section:
a. "Health care provider" means a physician or an
osteopathic physician licensed under chapter 148, a
chiropractor licensed under chapter 151, a podiatrist
licensed under chapter 149, a physician assistant licensed and
practicing under a supervising physician under chapter 148C, a
licensed practical nurse, a registered nurse, or an advanced
registered nurse practitioner licensed under chapter 152 or
152E, a dentist licensed under chapter 153, an optometrist
licensed under chapter 154, a pharmacist licensed under chapter
155A, a hospital as defined in section 135B.1, a health care
facility as defined in section 135C.1, a health facility as
defined in section 135P.1, a professional corporation under
chapter 496C that is owned by persons licensed to practice a
profession listed in this paragraph, or any other person or
entity who is licensed, certified, or otherwise authorized or
permitted by the law of this state to administer health care
in the ordinary course of business or in the practice of a
profession.
b. "Noneconomic damages" means damages arising from
pain, suffering, inconvenience, physical impairment, mental
anguish, emotional pain and suffering, loss of chance, loss of
consortium, or any other nonpecuniary damages.
c. "Occurrence" means the event, incident, or happening,
and the acts or omissions incident thereto, which proximately
caused injuries or damages for which recovery is claimed by the
patient or the patient's representative.
2. The total amount recoverable in any civil action for
noneconomic damages for personal injury or death, whether in
tort, contract, or otherwise, against a health care provider
shall be limited to two hundred fifty thousand dollars for any
occurrence resulting in injury or death of a patient regardless
of the number of plaintiffs, derivative claims, theories of
liability, or defendants in the civil action, unless the jury
determines that there is a substantial or permanent loss or
impairment of a bodily function, substantial disfigurement,
or death, which warrants a finding that imposition of such a
limitation would deprive the plaintiff of just compensation for
the injuries sustained.
3. The limitation on damages contained in this section
shall not apply as to a defendant if that defendant's actions
constituted actual malice.
Sec. 3. Section 147.139, Code 2017, is amended to read as
follows:
147.139 Expert witness standards.
If the standard of care given by a physician and surgeon
or an osteopathic physician and surgeon licensed pursuant
to chapter 148, or a dentist licensed pursuant to chapter
153 health care provider, as defined in section 147.136A, is
at issue, the court shall only allow a person the plaintiff
designates as an expert witness to qualify as an expert witness
and to testify on the issue of the appropriate standard of
care if the person's medical or dental qualifications relate
directly to the medical problem or problems at issue and the
type of treatment administered in the case. or breach of the
standard of care if all of the following are established by the
evidence:
1. The person is licensed to practice in the same or a
substantially similar field as the defendant, is in good
standing in each state of licensure, and in the five years
preceding the act or omission alleged to be negligent, has not
had a license in any state revoked or suspended.
2. In the five years preceding the act or omission alleged
to be negligent, the person actively practiced in the same or a
substantially similar field as the defendant or was a qualified
instructor at an accredited university in the same field as the
defendant.
3. If the defendant is board=certified in a specialty, the
person is certified in the same or a substantially similar
specialty by a board recognized by the American board of
medical specialties or the American osteopathic association.
4. If the defendant is a licensed physician or osteopathic
physician under chapter 148, the person is a physician or
osteopathic physician licensed in this state or another state.
Sec. 4. NEW SECTION. 147.140 Expert witness ==== certificate
of merit affidavit.
1. a. In any action for personal injury or wrongful
death against a health care provider based upon the alleged
negligence in the practice of that profession or occupation or
in patient care, which includes a cause of action for which
expert testimony is necessary to establish a prima facie case,
the plaintiff shall, prior to the commencement of discovery in
the case and within sixty days of the defendant's answer, serve
upon the defendant a certificate of merit affidavit signed by
an expert witness with respect to the issue of standard of care
and an alleged breach of the standard of care. The expert
witness must meet the qualifying standards of section 147.139.
b. A certificate of merit affidavit must be signed by the
expert witness and certify the purpose for calling the expert
witness by providing under the oath of the expert witness all
of the following:
(1) The expert witness's statement of familiarity with the
applicable standard of care.
(2) The expert witness's statement that the standard of care
was breached by the health care provider named in the petition.
c. A plaintiff shall serve a separate certificate of merit
affidavit on each defendant named in the petition.
2. An expert witness's certificate of merit affidavit does
not preclude additional discovery and supplementation of the
expert witness's opinions in accordance with the rules of civil
procedure.
3. The parties shall comply with the requirements of section
668.11 and all other applicable law governing certification and
disclosure of expert witnesses.
4. The parties by agreement or the court for good cause
shown and in response to a motion filed prior to the expiration
of the time limits specified in subsection 1 may provide for
extensions of the time limits. Good cause shall include
but not be limited to the inability to timely obtain the
plaintiff's medical records from health care providers when
requested prior to filing the petition.
5. If the plaintiff is acting pro se, the plaintiff shall
have the expert witness sign the certificate of merit affidavit
or answers to interrogatories referred to in this section
and the plaintiff shall be bound by those provisions as if
represented by an attorney.
6. Failure to substantially comply with subsection 1 shall
result, upon motion, in dismissal with prejudice of each cause
of action as to which expert witness testimony is necessary to
establish a prima facie case.
7. For purposes of this section, "health care provider"
means the same as defined in section 147.136A.
Sec. 5. APPLICABILITY. This Act applies to causes of action
that accrue on or after the effective date of this Act.


JACK WHITVER


LINDA UPMEYER


W. CHARLES SMITH


TERRY E. BRANSTA