SSB 1176 (LSB 1640XC (5) 86)

SENATE FILE _____

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON SODDERS)

A BILL FOR

An Act relating to privileged communications between a physician or health facility and a patient following an adverse health care incident.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  135P.1  Definitions.

   For the purposes of this chapter, unless the context otherwise requires:

   1.  “Adverse health care incident” means an objective, definable, and unanticipated consequence of a medical treatment or procedure which differs from the intended outcome and results in the death or serious physical injury of a patient.
   2.  “Health facility” means an institutional health facility as defined in section 135.61, hospice licensed under chapter 135J, home health agency as defined in section 144D.1, clinic, or community health center, and includes any corporation, professional corporation, partnership, limited liability company, limited liability partnership, or other entity comprised of such health facilities.
   3.  “Open discussion” means all communications that are made under section 135P.3, and includes all memoranda, work products, documents, and other materials that are prepared for or submitted in the course of or in connection with communications under section 135P.3.
   4.  “Patient” means a person who receives medical care from a physician, or if the person is a minor, deceased, or incapacitated, the person’s legal representative.
   5.  “Physician” means a person licensed under chapter 148.
    Sec. 2.  NEW SECTION.  135P.2  Confidentiality of open discussions.
   1.  Open discussion communications and offers of compensation made under section 135P.3:
   a.  Do not constitute an admission of liability.
   b.  Are privileged, confidential, and shall not be disclosed.
   c.  Are not admissible as evidence in any subsequent judicial, administrative, or arbitration proceeding and are not subject to discovery, subpoena, or other means of legal compulsion for release and shall not be disclosed by any party in any subsequent judicial, administrative, or arbitration proceeding.
   2.  Communications, memoranda, work products, documents, and other materials, otherwise subject to discovery, that were not prepared specifically for use in a discussion under section 135P.3, are not confidential.
   3.  The limitation on disclosure imposed by this section includes disclosure during any discovery conducted as part of a subsequent adjudicatory proceeding, and a court or other adjudicatory body shall not compel any person who engages in an open discussion under this chapter to disclose confidential communications or agreements made under section 135P.3.
   4.  This section does not affect any other law, regulation, or requirement with respect to confidentiality.
    Sec. 3.  NEW SECTION.  135P.3  Engaging in an open discussion.
   1.  If an adverse health care incident occurs in a health facility, the physician, or the physician jointly with the health facility, may provide the patient with notice of the desire of the physician, or of the physician jointly with the health facility, to enter into an open discussion under this chapter. If the physician or health facility provides such notice, such notice must be sent within one hundred eighty days of the adverse health care incident and include all of the following:
   a.  Notice of the desire of the physician, or of the physician jointly with the health facility, to proceed with an open discussion under this chapter.
   b.  Notice of the patient’s right to receive a copy or authorize the release of the patient’s medical records related to the adverse health care incident to any third party.
   c.  Notice of the patient’s right to seek legal counsel.
   d.  Notice that if the patient chooses to engage in an open discussion with the physician or health facility, that all communications made in the course of such a discussion under this chapter, including communications regarding the initiation of an open discussion, are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
   2.  If the patient agrees to engage in an open discussion, the patient, physician, or health facility engaged in an open discussion under this chapter may include other persons in the open discussion. All additional parties shall also be advised in writing prior to the discussion that discussions are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
   3.  The physician or health facility that agrees to engage in an open discussion may do all of the following:
   a.  Investigate how the adverse health care incident occurred and gather information regarding the medical care or treatment provided.
   b.  Disclose the results of the investigation to the patient.
   c.  Openly communicate to the patient the steps the physician or health facility will take to prevent future occurrences of the adverse health care incident.
   d.  Determine either of the following:
   (1)  That no offer of compensation for the adverse health care incident is warranted and orally communicates that determination to the patient.
   (2)  That an offer of compensation for the adverse health care incident is warranted and extends such an offer in writing to the patient.
   4.  If a physician or health facility makes an offer of compensation under subsection 3 and the patient is not represented by legal counsel, the physician or health facility shall advise the patient of the patient’s right to seek legal counsel regarding the offer of compensation.
   5.  Except for offers of compensation under subsection 3, discussions between the physician or health facility and the patient about the compensation offered under subsection 3 shall remain oral.
    Sec. 4.  NEW SECTION.  135P.4  Payment and resolution.
   1.  A payment made to a patient pursuant to section 135P.3 is not a payment resulting from any of the following:
   a.  A written claim or demand for payment.
   b.  A claim for purposes of section 272C.9.
   c.  A claim for purposes of section 505.27.
   2.  A physician or health facility may require the patient, as a condition of an offer of compensation under section 135P.3, to execute all documents and obtain any necessary court approval to resolve an adverse health care incident. The parties shall negotiate the form of such documents or obtain court approval as necessary.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
   The bill defines “adverse health care incident” as an objective, definable, and unanticipated consequence of a medical treatment or procedure which differs from the intended outcome and results in the death or serious physical injury of a patient. The bill defines “physician” as a person licensed under Code chapter 148 (medicine and surgery and osteopathic medicine and surgery). The bill defines “patient” as a person who receives medical care from a physician, or if the person is a minor, deceased, or incapacitated, the person’s legal representative. The bill defines “health facility” as an institutional health facility as defined in Code section 135.61, a hospice licensed under Code chapter 135J, home health agency as defined in Code section 144D.1, clinic, or community health center, and includes any corporation, professional corporation, partnership, limited liability company, limited liability partnership, or other entity comprised of such facilities.
   If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
   The bill provides that a payment made under the Code chapter is not a written claim or demand for payment, a claim that must be submitted to a licensing board under Code section 272C.9, or a medical malpractice insurance claim that must be reported to the commissioner of insurance under Code section 505.27.