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PLAN B
"Balanced and Better for doctors and patients"
MEDICAL MALPRACTICE ALTERNATIVE
(HB 2292 and SB 6087)
March 14, 2005
Items in bold are new to this year’s package
I. Patient Safety
Encouraging Patient Safety through Communications with Patients (2SHB 1291
--Cody)
Protects apologies and expressions of regret by health care
providers to their patient from use in a lawsuit.
Encouraging Reports of Unprofessional Conduct (HB 1548 – Clibborn)
Provides liability protection to a health care provider who reports
another provider's unprofessional conduct or lack of capacity to
practice safely.
Medical Quality Assurance Commission Consumer Membership (§ 201 of I-336)
Expands the number of consumers on the commission that regulates
physicians and physician’s assistants from four to six.
Health Care Provider Discipline (§§ 3-5 of SHB 1071 -- Campbell and SB 5636
– Keiser)
"Three strikes" for health care providers that are found to have
committed certain serious acts of unprofessional conduct – three such
findings within a 10 year period result in the automatic revocation of
a health care provider's license, absent the presence of mitigating
circumstances.
When a health professions disciplining authority has found
unprofessional conduct and is deciding what sanction to impose, they
can take prior findings of unprofessional conduct into account.
Increasing Patient Safety through Disclosure of Adverse Events (SHB 1243
– Green)
Health care facilities must report unanticipated serious injuries or
deaths to the Department of Health, and may also report "near misses".
The Department of Health will develop recommendations to improve
patient safety, based upon these reports of adverse events.
Coordinated Quality Improvement Programs (2SHB 1291 (originally HB
1782 – Schual-Berke)
Individual physicians can collaborate to establish a coordinated
quality improvement program, so that they can improve the quality of
their practices without fear of disclosure or litigation.
Prescription Legibility (2SHB 1291 [originally HB 1780 – Schual-Berke])
Prescriptions for legend drugs must either be hand-printed,
typewritten, or generated electronically.
II. Insurance Reform
Medical Malpractice Closed Claim Reporting (SHB 1933 – Schual-Berke)
Based upon reports and recommendations of the Government
Accountability Office and the National Association of Insurance
Commissioners, requires medical malpractice insurers, and self-insured
health care providers to report detailed information on all closed
medical malpractice claims.
Underwriting Standards (HB 1223 – Schual-Berke)
Requires medical malpractice insurers to file the rules they use to
determine which health care providers they will insure and prevents
malpractice insurers from cancelling coverage based upon reports of
potential medical malpractice claims, or claims that did not result in
a payment.
Cancellation/Nonrenewal of Liability Insurance Policies (HB 1225 –
Schual-Berke)
Requires medical malpractice insurers to provide at least 90 days
notice, rather than 45 days under current law, when they are canceling
or not renewing a health care provider’s medical malpractice insurance
coverage.
Prior Approval of Medical Malpractice Insurance Rates
Requires that medical malpractice insurance rates be scrutinized and
approved by the Insurance Commissioner before a medical malpractice
insurer can change the rates they charge health care providers. Under
current law, insurers can begin to use new rates before they are
approved by the Insurance Commissioner.
III. Civil Justice Reform
Statutes of Limitations and Repose (HB 1858 – Lantz)
Requires that medical malpractice actions be brought within eight
years after the act or omission that resulted in injury.
Expert Witnesses (SHB 1224 – Schual-Berke and SHB 1860 – Lantz)
Establishes qualifications for expert witnesses in medical
malpractice actions.
Limits the number of expert witnesses in a medical malpractice
action to two per party on each issue, unless there is good cause for
additional experts.
Requires pretrial expert reports and prohibits expert depositions in
medical malpractice actions.
Certificate of Merit (SHB 1860 – Lantz)
Requires a plaintiff to file a certificate of merit when commencing
a medical malpractice action. A medical expert must certify that the
lawsuit has a legitimate basis and is not frivolous.
Encouraging Offers of Settlement (HB 1861 – Lantz)
In a medical malpractice action where a party makes an offer of
settlement that is not accepted by the opposing party, the court may,
in its discretion, award attorneys' fees to the party who made an offer
of settlement that was not accepted by the opposing party and who
improved his or her position at trial relative to his or her offer of
settlement. Factors that the court should consider in deciding whether
to award attorneys fees are set out.
A defendant health care provider cannot get an award of attorneys
fees under this section unless he or she disclosed information about
the unanticipated outcome to his or her patient shortly after learning
about it, apologized or expressed sympathy with the patient and
provided assurances that steps would be taken to prevent similar
outcomes in the future.
Voluntary Arbitration
A new and innovative option is created resolve medical malpractice
cases more quickly and with less cost.
An injured person and a health care provider they’re suing can agree
to submit a medical malpractice claim to binding arbitration under the
act. All parties must choose arbitration in order for this
option to apply.
Special rules apply to cases arbitrated under this act:
The parties choose their abitrator.
There are limits on the number of experts witnesses.
Specific limits on discovery, e.g. interrogatories and
depositions apply, unless exceptional circumstances require
additional discovery.
A hospital or another health care facility will only be held
liable for the acts of its employees or agents; known as
"ostensible agency".
Specific time limits are set out so that most cases can be
resolved within a year, rather than 3 to 4 years .
The arbitrator may not award more than a total of $1 million for
both economic and non-economic damages.
The losing party pays the arbitrator’s fees and expenses.
The arbitrator’s decision is final, unless there has been fraud or
corruption in the arbitration.
Collateral Sources (HB 1862 – Lantz)
A defendant can tell the court or jury that the injured person has
sources of payments or benefits available that are totally independent
of the medical malpractice lawsuit. The injured person, however, may
let the court know that they had to pay for the collateral source
payments (e.g., premiums), in addition to introducing evidence of an
obligation to repay the collateral source compensation.
IV. Miscellaneous Provisions
- Chapter Designations
- Severability
- Designation as an Alternative to Initiatives 330 and 336
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