House
Study
Bill
143
-
Introduced
HOUSE
FILE
_____
BY
(PROPOSED
COMMITTEE
ON
JUDICIARY
BILL
BY
CHAIRPERSON
BALTIMORE)
A
BILL
FOR
An
Act
relating
to
privileged
communications
between
a
1
physician
or
health
facility
and
a
patient
following
an
2
adverse
health
care
incident.
3
BE
IT
ENACTED
BY
THE
GENERAL
ASSEMBLY
OF
THE
STATE
OF
IOWA:
4
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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.
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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
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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
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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
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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.
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