Medical malpractice-use of expert witnesses.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0487

HOUSE BILL
NO.
HB0106

Medical malpractice-use of expert witnesses.

Sponsored by:
Representative(s) Gingery

A BILL

for

AN ACT relating to medical malpractice actions; providing for filing of affidavits as specified; providing for expert testimony as specified; providing definitions; providing penalties; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.
W.S. 1
‑
1
‑
131 through 1
‑
1
‑
133 are created to read:

1
‑
1
‑
131.

Medical malpractice actions; certification of expert review.

(a)

For purposes of this act:

(i)

"Expert witness" means a person authorized to give expert testimony pursuant to W.S. 1
‑
1
‑
133;

(ii)

"Health care provider" means a physician, surgeon, dentist, or other health care professional or hospital, or health care professional employed by or providing services as an independent contractor in a hospital;

(iii)

"Malpractice action" means any action alleging malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider, which includes a cause of action for which expert testimony is necessary to establish a prima facie case;

(iv)

"This act" means W.S. 1
‑
1
‑
131 through 1
‑
1
‑
133.

(b)

In any malpractice action, the plaintiff shall:

(i)

At the time of service of a complaint and summons, serve upon the defendant an affidavit, signed by the plaintiff's attorney, stating:

(A)

That the facts of the case have been reviewed by the plaintiff's attorney with an expert witness whose qualifications provide a reasonable expectation that the expert witness' opinions could be admissible at trial;

(B)

That, in the opinion of the expert witness, one (1) or more defendants deviated from the applicable standard of care; and

(C)

That, in the opinion of the expert witness, the defendant's deviation from the applicable standard of care caused injury to the plaintiff; or

(ii)

At the time of service of a complaint and summons, serve upon the defendant an affidavit, signed by the plaintiff's attorney, stating the expert witness review required by paragraph (i) of this subsection could not reasonably be obtained before the action was commenced because the applicable statute of limitations required the filing of the complaint prior to obtaining the expert witness review. If an affidavit is executed pursuant to this paragraph, the affidavit provided in paragraph (i) of this subsection shall be served on the defendant or the defendant's counsel within ninety (90) days after service of the summons and complaint; and

(iii)

Within one hundred eighty (180) days after commencement of an action, serve upon the defendant an affidavit, signed by each expert witness and by the plaintiff's attorney which states:

(A)

The identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of malpractice or causation;

(B)

The substance of the facts and opinions to which the expert witness is expected to testify;

(C)

A summary of the grounds for each opinion;

(D)

The factual basis of the claim;

(E)

The applicable standard of practice or care alleged by the claimant;

(F)

The manner in which the expert witness claims that the applicable standard of practice or care was breached by the health professional or health facility;

(G)

The alleged action that the expert witness asserts should have been taken to achieve compliance with the standard of practice or care; and

(H)

The manner in which the expert witness asserts that the breach of the standard of practice or care was the proximate cause of the injury claimed.

(c)

Answers to interrogatories that state the information required by paragraph (b)(iii) of this section shall satisfy the requirements of paragraph (b)(iii) of this section if they are signed by the plaintiff's attorney and by each expert witness listed in the answers to interrogatories and they are served upon the defendant within one hundred eighty (180) days after commencement of the action.

(d)

The parties or the court for good cause shown, may by agreement, provide for extensions of the time limits specified in subsection (b) of this section. Nothing in this section may be construed to prevent either party from calling additional expert witnesses or substituting other expert witnesses prior to the deadline provided in subsection (e) of this section.

(e)

In any malpractice action, all expert witness interrogatory answers must be signed by the attorney for the party responding to the interrogatory and by each expert witness listed in the answers. The court shall include in a scheduling order a deadline prior to the close of discovery for all parties to answer expert witness interrogatories for all expert witnesses to be called at trial. No additional expert witnesses may be called by any party without agreement of the parties or by leave of the court for good cause shown.

(f)

If the plaintiff is acting pro se, the plaintiff shall sign the affidavits and answers to interrogatories referred to in this section and is bound by those provisions as if represented by an attorney.

(g)

Failure to comply with paragraph (b)(i) or (ii) of this section within sixty (60) days after demand for the affidavit shall result, upon motion, in dismissal with prejudice of each cause of action as for which expert witness testimony is necessary to establish a prima facie case.

(h)

Failure to comply with paragraph (b)(iii) or subsection (c) of this section due to deficiencies in the affidavit or answers to interrogatories shall result, upon motion, in dismissal with prejudice of each action as to which expert witness testimony is necessary to establish a prima facie case, provided that:

(i)

The motion to dismiss the action identifies the claimed deficiencies in the affidavit or answers to interrogatories;

(ii)

The time for hearing the motion is at least forty-five (45) days from the date of service of the motion; and

(iii)

Before the hearing on the motion, the plaintiff does not serve upon the defendant an amended affidavit or answers to interrogatories that correct the claimed deficiencies.

(j)

The signature of the plaintiff or the plaintiff's attorney shall constitute a certification that the person has read the affidavit or answers to interrogatories, and that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry, it is true, accurate and made in good faith. An attorney or plaintiff who signs a certification in violation of this subsection shall be subject to reasonable attorney's fees, costs and disbursements.

1
‑
1
‑
132.

Medical malpractice actions; duty of defendant to furnish affidavit.

(a)

In any malpractice action, a defendant shall file within ninety (90) days after the plaintiff has filed the affidavit required under W.S. 1
‑
1
‑
132(b)(i), an affidavit of meritorious defense signed by an expert witness. The affidavit of meritorious defense shall certify that the expert witness has reviewed the complaint and all medical records supplied to him by the defendant's attorney concerning the allegations contained in the complaint and shall contain a statement of each of the following:

(i)

The factual basis for each defense to the claims made against the defendant in the complaint;

(ii)

The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to be applicable to the action and that the health professional or health facility complied with that standard;

(iii)

The manner in which the expert witness asserts that there was compliance with the applicable standard of practice or care; and

(iv)

The manner in which the expert witness asserts that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered.

1
‑
1
‑
133.

Medical malpractice actions; expert witness criteria.

(a)

In any malpractice action, a person shall not give expert testimony or execute an affidavit on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

(i)

If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

(A)

A physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

(B)

A specialist or subspecialist recognized by the American Board Of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board Of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:

(I)

The active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(II)

The instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association.

(ii)

If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:

(A)

Active clinical practice as a general practitioner or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or
(B)

The instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed.

(b)

A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.

(c)

Nothing in this section shall limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.

(d)

In any malpractice action, an expert witness shall not testify on a contingency fee basis.

(e)

An individual or entity who threatens to take or takes adverse action against a person in retaliation for that person providing or agreeing to provide expert testimony, or for that person executing an affidavit pursuant to the provisions of W.S. 1
‑
1
‑
131 or 1
‑
1
‑
132, which adverse action relates to that person's employment, accreditation, certification, credentialing or licensure, shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000.00) and other damages incurred by the person and the party for whom the person was testifying as an expert.

Section 2.
This act is effective July 1, 2005.

(END)

1
HB0106