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2005 General Session
HB 106 would have required that affidavits containing specific information be filed by both plaintiffs and defendants within specified time periods in medical malpractice cases.
When a medical malpractice complaint was served on a defendant, an affidavit from the plaintiff’s attorney would have been required that stated the complaint had been reviewed by a qualified expert witness who was of the opinion that the defendant’s deviation from the standard of care caused injury to the patient.
Within 6 months of initiating a medical malpractice action, the plaintiff would have had to provide to the defendant the identity of all expert witnesses expected to testify, the facts and opinions the witnesses were expected to provide, the factual basis of the claim, and how the expert witnesses thought the standard of care was breached and led to injury of the patient.
Within 90 days of receiving the plaintiff’s affidavit, the defendant would have had to file an affidavit of defense signed by an expert witness, containing the factual basis for each defense to the claims and on what basis the expert witness asserts that the alleged injury or damage is not related to the care and treatment given by the defendant.
HB 106 also contained certain criteria that would have been required to qualify expert witnesses, including being licensed as a physician or health care professional in the United States, and having experience in the same specialty or health care area as the person against whom or on whose behalf the witness was testifying.
HB 106 would have prohibited expert witnesses in medical malpractice cases from testifying on a contingency fee basis.
Proponents of HB 106 noted that requiring initial review by expert witnesses would help weed out medical malpractice cases that were without merit, and that a strict time frame in which these affidavits must be filed would prevent cases from dragging out too long.
Opponents thought it was not necessary to provide this degree of statutory oversight and detail, since this is not common practice for other types of legal actions. They noted that witnesses presently do not typically testify on a contingency fee basis, and that this really isn’t a problem that needs to be statutorily remedied.
HB 106 was tabled by the House Labor, Health and Human Services Committee without a vote.