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Legal Update – Medical Malpractice Legislation

• Apr 25, 2017

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Legal Update by Attorney Clarissa Bierstedt

Both the Iowa House and the Iowa Senate have approved legislation that would cap financial awards in medical malpractice lawsuits except in severe cases. The bill passed the Senate on a 37-12 vote and the House on a 65-32 vote. The bill added a new section regarding medical malpractice claims which provides a $250,000 cap on noneconomic damage awards against health care providers in most cases. There is an exception provided for cases when a jury determines there is a substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or death. There is also an exception for when the defendant’s actions constitute actual malice.

The section provides, in pertinent part:

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 Senate File 465, p. 3 26 shall not apply as to a defendant if that defendant’s actions constituted actual malice.

The bill also includes a provision which requires the plaintiff serve a "certificate of merit" signed by an expert witness with respect to the issue standard of care. The certificate must be served upon the defendant prior to the commencement of discovery and within 60 days of the defendant’s answer. The certificate must include the expert’s statement of familiarity with the applicable standard of care and statement that the standard of care was breached by the health care provider named in the petition. Failure to serve a certificate will result in

dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie case. This provision is intended to screen out and discourage frivolous litigation.

The bill also revises the provision establishing standards for expert witnesses. It provides that the plaintiff’s expert witness must be licensed to practice in the same or substantially similar field as the defendant, is in good standing, and in the five years preceding the act alleged to be negligent, has not had a license revoked. Further, the expert must have actively practiced in the field during the five years preceding the act. Finally, if the defendant is board certified in a specialty, the expert must be certified in the same or substantially similar specialty.

Governor Terry Branstad is expected to sign the bill.

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Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2017 Peddicord Wharton. All Rights Reserved.