H.F. _____ Section 1. NEW SECTION . 135P.1 Definitions. 1 For the purposes of this chapter, unless the context 2 otherwise requires: 3 1. “Adverse health care incident” means an objective, 4 definable, and unanticipated consequence of a medical treatment 5 or procedure which differs from the intended outcome and 6 results in the death or serious physical injury of a patient. 7 2. “Health facility” means an institutional health facility 8 as defined in section 135.61, hospice licensed under chapter 9 135J, home health agency as defined in section 144D.1, clinic, 10 or community health center, and includes any corporation, 11 professional corporation, partnership, limited liability 12 company, limited liability partnership, or other entity 13 comprised of such health facilities. 14 3. “Open discussion” means all communications that are 15 made under section 135P.3, and includes all memoranda, work 16 products, documents, and other materials that are prepared 17 for or submitted in the course of or in connection with 18 communications under section 135P.3. 19 4. “Patient” means a person who receives medical care 20 from a physician, or if the person is a minor, deceased, or 21 incapacitated, the person’s legal representative. 22 5. “Physician” means a person licensed under chapter 148. 23 Sec. 2. NEW SECTION . 135P.2 Confidentiality of open 24 discussions. 25 1. Open discussion communications and offers of 26 compensation made under section 135P.3: 27 a. Do not constitute an admission of liability. 28 b. Are privileged, confidential, and shall not be disclosed. 29 c. Are not admissible as evidence in any subsequent 30 judicial, administrative, or arbitration proceeding and are 31 not subject to discovery, subpoena, or other means of legal 32 compulsion for release and shall not be disclosed by any party 33 in any subsequent judicial, administrative, or arbitration 34 proceeding. 35 -1- LSB 1640YC (2) 86 jh/rj 1/ 5

H.F. _____ 2. Communications, memoranda, work products, documents, and 1 other materials, otherwise subject to discovery, that were not 2 prepared specifically for use in a discussion under section 3 135P.3, are not confidential. 4 3. The limitation on disclosure imposed by this section 5 includes disclosure during any discovery conducted as part of 6 a subsequent adjudicatory proceeding, and a court or other 7 adjudicatory body shall not compel any person who engages in 8 an open discussion under this chapter to disclose confidential 9 communications or agreements made under section 135P.3. 10 4. This section does not affect any other law, regulation, 11 or requirement with respect to confidentiality. 12 Sec. 3. NEW SECTION . 135P.3 Engaging in an open discussion. 13 1. If an adverse health care incident occurs in a health 14 facility, the physician, or the physician jointly with the 15 health facility, may provide the patient with notice of the 16 desire of the physician, or of the physician jointly with the 17 health facility, to enter into an open discussion under this 18 chapter. If the physician or health facility provides such 19 notice, such notice must be sent within one hundred eighty days 20 of the adverse health care incident and include all of the 21 following: 22 a. Notice of the desire of the physician, or of the 23 physician jointly with the health facility, to proceed with an 24 open discussion under this chapter. 25 b. Notice of the patient’s right to receive a copy or 26 authorize the release of the patient’s medical records related 27 to the adverse health care incident to any third party. 28 c. Notice of the patient’s right to seek legal counsel. 29 d. Notice that if the patient chooses to engage in an open 30 discussion with the physician or health facility, that all 31 communications made in the course of such a discussion under 32 this chapter, including communications regarding the initiation 33 of an open discussion, are privileged and confidential, are 34 not subject to discovery, subpoena, or other means of legal 35 -2- LSB 1640YC (2) 86 jh/rj 2/ 5

H.F. _____ compulsion for release, and are not admissible in evidence in a 1 judicial, administrative, or arbitration proceeding. 2 2. If the patient agrees to engage in an open discussion, 3 the patient, physician, or health facility engaged in an open 4 discussion under this chapter may include other persons in 5 the open discussion. All additional parties shall also be 6 advised in writing prior to the discussion that discussions 7 are privileged and confidential, are not subject to discovery, 8 subpoena, or other means of legal compulsion for release, and 9 are not admissible in evidence in a judicial, administrative, 10 or arbitration proceeding. 11 3. The physician or health facility that agrees to engage in 12 an open discussion may do all of the following: 13 a. Investigate how the adverse health care incident occurred 14 and gather information regarding the medical care or treatment 15 provided. 16 b. Disclose the results of the investigation to the patient. 17 c. Openly communicate to the patient the steps the physician 18 or health facility will take to prevent future occurrences of 19 the adverse health care incident. 20 d. Determine either of the following: 21 (1) That no offer of compensation for the adverse health 22 care incident is warranted and orally communicates that 23 determination to the patient. 24 (2) That an offer of compensation for the adverse health 25 care incident is warranted and extends such an offer in writing 26 to the patient. 27 4. If a physician or health facility makes an offer 28 of compensation under subsection 3 and the patient is not 29 represented by legal counsel, the physician or health facility 30 shall advise the patient of the patient’s right to seek legal 31 counsel regarding the offer of compensation. 32 5. Except for offers of compensation under subsection 3, 33 discussions between the physician or health facility and the 34 patient about the compensation offered under subsection 3 shall 35 -3- LSB 1640YC (2) 86 jh/rj 3/ 5

H.F. _____ remain oral. 1 Sec. 4. NEW SECTION . 135P.4 Payment and resolution. 2 1. A payment made to a patient pursuant to section 135P.3 is 3 not a payment resulting from any of the following: 4 a. A written claim or demand for payment. 5 b. A claim for purposes of section 272C.9. 6 c. A claim for purposes of section 505.27. 7 2. A physician or health facility may require the patient, 8 as a condition of an offer of compensation under section 9 135P.3, to execute all documents and obtain any necessary court 10 approval to resolve an adverse health care incident. The 11 parties shall negotiate the form of such documents or obtain 12 court approval as necessary. 13 EXPLANATION 14 The inclusion of this explanation does not constitute agreement with 15 the explanation’s substance by the members of the general assembly. 16 This bill allows a physician, or a physician jointly with a 17 health facility, to engage in an open, confidential discussion 18 with a patient related to an adverse health care incident. 19 The bill defines “adverse health care incident” as an 20 objective, definable, and unanticipated consequence of a 21 medical treatment or procedure which differs from the intended 22 outcome and results in the death or serious physical injury of 23 a patient. The bill defines “physician” as a person licensed 24 under Code chapter 148 (medicine and surgery and osteopathic 25 medicine and surgery). The bill defines “patient” as a 26 person who receives medical care from a physician, or if the 27 person is a minor, deceased, or incapacitated, the person’s 28 legal representative. The bill defines “health facility” as 29 an institutional health facility as defined in Code section 30 135.61, a hospice licensed under Code chapter 135J, home health 31 agency as defined in Code section 144D.1, clinic, or community 32 health center, and includes any corporation, professional 33 corporation, partnership, limited liability company, limited 34 liability partnership, or other entity comprised of such 35 -4- LSB 1640YC (2) 86 jh/rj 4/ 5

H.F. _____ facilities. 1 If an adverse health care incident occurs, the bill allows a 2 physician, or a physician jointly with a health facility, to 3 offer to engage in an open discussion with the patient. The 4 notice of an offer to engage in an open discussion must be 5 sent to the patient within 180 days after the adverse health 6 care incident. If the patient agrees to proceed with an open 7 discussion, the physician or health facility may investigate 8 the adverse health care incident, disclose the results to the 9 patient, and discuss steps the physician or health facility 10 will take to prevent similar adverse health care incidents. 11 The physician or health facility may also communicate to the 12 patient that either the physician or health facility has 13 determined that an offer of compensation is not warranted 14 or that an offer of compensation is warranted. An offer of 15 compensation may be conditioned upon the patient executing 16 a release of future liability as to the adverse health care 17 incident. All communications made under the Code chapter are 18 privileged and confidential, are not subject to discovery, 19 subpoena, or other means of legal compulsion for release, and 20 are not admissible in evidence in a judicial, administrative, 21 or arbitration proceeding. 22 The bill provides that a payment made under the Code chapter 23 is not a written claim or demand for payment, a claim that must 24 be submitted to a licensing board under Code section 272C.9, or 25 a medical malpractice insurance claim that must be reported to 26 the commissioner of insurance under Code section 505.27. 27 -5- LSB 1640YC (2) 86 jh/rj 5/ 5