BP BHEAD INT S [atlas:bill]

AN ACT Relating to health care liability reform; amending RCW 5.60.060, 70.02.050, 4.16.190, 4.16.350, 4.24.005, and 7.70.070; adding new sections to chapter 7.70 RCW; adding a new section to chapter 4.16 RCW; adding a new chapter to Title 4 RCW; and creating new sections.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

PART 1--CERTIFICATE OR MERIT

NEW SECTION. Sec. 1. A new section is added to chapter 7.70 RCW to read as follows:

(1) The claimant's attorney shall file the certificate specified in subsection (2) of this section within ninety days of filing or service, whichever occurs later, of any action for damages arising out of injuries occurring as a result of health care.

(2) The certificate issued by the claimant's attorney shall declare:

(a) That the attorney has reviewed the facts of the case;

(b) That the attorney has consulted with at least one qualified expert who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action and who:

(i) Holds a license, certificate, or registration issued by this state or another state in the same profession as that of the defendant and who practices in the same specialty or subspecialty as the defendant; or

(ii) Has expertise in those areas requiring expert testimony in an action against a health care facility;

(d) That the expert is willing and available to testify to admissible facts or opinions; and

(e) That the attorney has concluded on the basis of such review and consultation that there is reasonable and meritorious cause for the filing of such action.

(3) Where a certificate is required under this section, and where there are multiple defendants, the certificate or certificates must state the attorney's conclusion that on the basis of review and expert consultation, there is reasonable and meritorious cause for the filing of such action as to each defendant.

(4) The provisions of this section are not applicable to a pro se plaintiff until such a time as an attorney appears on the plaintiff's behalf.

(5) A violation of this section is grounds for either dismissal of the case or sanctions against the attorney, or both, as the court deems appropriate.

NEW SECTION. Sec. 2. Section 1 of this act applies to all actions for damages arising out of professional negligence filed on or after the effective date of this section.

PART 2--EQUAL ACCESS TO MEDICAL WITNESSES

Sec. 3. RCW 5.60.060 and 1996 c 156 s 1 are each amended to read as follows:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse if the marriage occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by ((~~said~~)) the husband or wife against any child of whom ((~~said~~)) the husband or wife is the parent or guardian, nor to a proceeding under chapter 70.96A or 71.05 RCW((~~: PROVIDED, That~~)). However, the spouse of a person sought to be detained under chapter 70.96A or 71.05 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness.

(2) An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.

(3) A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.

(4) Subject to the limitations under RCW 70.96A.140 or 71.05.250, a physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows:

(a) In any judicial proceedings regarding a child's injury, neglect, or sexual abuse or the cause thereof; and

(b) Ninety days after ((~~filing an action~~)) making a demand for compensation for personal injuries or wrongful death, the claimant shall be deemed to waive the physician-patient privilege. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules. Where the privilege has been waived under this section, ex parte interviews with such physicians may be conducted in the same manner as with any other witness.

(5) A public officer shall not be examined as a witness as to communications made to him or her in official confidence, when the public interest would suffer by the disclosure.

(6)(a) A peer support group counselor shall not, without consent of the law enforcement officer making the communication, be compelled to testify about any communication made to the counselor by the officer while receiving counseling. The counselor must be designated as such by the sheriff, police chief, or chief of the Washington state patrol, prior to the incident that results in counseling. The privilege only applies when the communication was made to the counselor while acting in his or her capacity as a peer support group counselor. The privilege does not apply if the counselor was an initial responding officer, a witness, or a party to the incident which prompted the delivery of peer support group counseling services to the law enforcement officer.

(b) For purposes of this section, "peer support group counselor" means a:

(i) Law enforcement officer, or civilian employee of a law enforcement agency, who has received training to provide emotional and moral support and counseling to an officer who needs those services as a result of an incident in which the officer was involved while acting in his or her official capacity; or

(ii) Nonemployee counselor who has been designated by the sheriff, police chief, or chief of the Washington state patrol to provide emotional and moral support and counseling to an officer who needs those services as a result of an incident in which the officer was involved while acting in his or her official capacity.

(7) A sexual assault advocate may not, without the consent of the victim, be examined as to any communication made by the victim to the sexual assault advocate.

(a) For purposes of this section, "sexual assault advocate" means the employee or volunteer from a rape crisis center, victim assistance unit, program, or association, that provides information, medical or legal advocacy, counseling, or support to victims of sexual assault, who is designated by the victim to accompany the victim to the hospital or other health care facility and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

(b) A sexual assault advocate may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person. Any sexual assault advocate participating in good faith in the disclosing of records and communications under this section shall have immunity from any liability, civil, criminal, or otherwise, that might result from the action. In any proceeding, civil or criminal, arising out of a disclosure under this section, the good faith of the sexual assault advocate who disclosed the confidential communication shall be presumed.

Sec. 4. RCW 70.02.050 and 1993 c 448 s 4 are each amended to read as follows:

(1) A health care provider may disclose health care information about a patient without the patient's authorization to the extent a recipient needs to know the information, if the disclosure is:

(a) To a person who the provider reasonably believes is providing health care to the patient;

(b) To any other person who requires health care information for health care education, or to provide planning, quality assurance, peer review, or administrative, legal, financial, or actuarial services to the health care provider; or for assisting the health care provider in the delivery of health care and the health care provider reasonably believes that the person:

(i) Will not use or disclose the health care information for any other purpose; and

(ii) Will take appropriate steps to protect the health care information;

(c) To any other health care provider reasonably believed to have previously provided health care to the patient, to the extent necessary to provide health care to the patient, unless the patient has instructed the health care provider in writing not to make the disclosure;

(d) To any person if the health care provider reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the patient or any other individual, however there is no obligation under this chapter on the part of the provider to so disclose;

(e) Oral, and made to immediate family members of the patient, or any other individual with whom the patient is known to have a close personal relationship, if made in accordance with good medical or other professional practice, unless the patient has instructed the health care provider in writing not to make the disclosure;

(f) To a health care provider who is the successor in interest to the health care provider maintaining the health care information;

(g) For use in a research project that an institutional review board has determined:

(i) Is of sufficient importance to outweigh the intrusion into the privacy of the patient that would result from the disclosure;

(ii) Is impracticable without the use or disclosure of the health care information in individually identifiable form;

(iii) Contains reasonable safeguards to protect the information from redisclosure;

(iv) Contains reasonable safeguards to protect against identifying, directly or indirectly, any patient in any report of the research project; and

(v) Contains procedures to remove or destroy at the earliest opportunity, consistent with the purposes of the project, information that would enable the patient to be identified, unless an institutional review board authorizes retention of identifying information for purposes of another research project;

(h) To a person who obtains information for purposes of an audit, if that person agrees in writing to:

(i) Remove or destroy, at the earliest opportunity consistent with the purpose of the audit, information that would enable the patient to be identified; and

(ii) Not to disclose the information further, except to accomplish the audit or report unlawful or improper conduct involving fraud in payment for health care by a health care provider or patient, or other unlawful conduct by the health care provider;

(i) To an official of a penal or other custodial institution in which the patient is detained;

(j) To provide directory information, unless the patient has instructed the health care provider not to make the disclosure;

(k) In the case of a hospital or health care provider to provide, in cases reported by fire, police, sheriff, or other public authority, name, residence, sex, age, occupation, condition, diagnosis, or extent and location of injuries as determined by a physician, and whether the patient was conscious when admitted; or

(l) Made after a deemed waiver of the physician-patient privilege under RCW 5.60.060(4)(b).

(2) A health care provider shall disclose health care information about a patient without the patient's authorization if the disclosure is:

(a) To federal, state, or local public health authorities, to the extent the health care provider is required by law to report health care information; when needed to determine compliance with state or federal licensure, certification or registration rules or laws; or when needed to protect the public health;

(b) To federal, state, or local law enforcement authorities to the extent the health care provider is required by law;

(3) All state or local agencies obtaining patient health care information pursuant to this section shall adopt rules establishing their record acquisition, retention, and security policies that are consistent with this chapter.

NEW SECTION. Sec. 5. RCW 5.60.060 and 70.02.050 do not apply to claims, hearings, appeals, or any other proceedings under Title 51 RCW.

PART 3--LIMITATION OF ACTIONS

Sec. 6. RCW 4.16.190 and 1993 c 232 s 1 are each amended to read as follows:

If a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge prior to sentencing, the time of such disability shall not be a part of the time limited for the commencement of action.

This section does not apply to any civil action for damages for injury occurring as a result of health care that is provided after June 25, 1976.

NEW SECTION. Sec. 7. A new section is added to chapter 4.16 RCW to read as follows:

Any civil action for damages for injury occurring as a result of health care provided after June 25, 1976, and before the effective date of this act that has not accrued before the effective date of this act and that was previously tolled by RCW 4.16.190 accrues on the effective date of this act.

Sec. 8. RCW 4.16.350 and 1988 c 144 s 2 are each amended to read as follows:

Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:

(1) A person licensed by this state to provide health care or related services, including, but not limited to, a physician, osteopathic physician, dentist, nurse, optometrist, ((~~podiatrist~~)) podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his estate or personal representative;

(2) An employee or agent of a person described in subsection (1) of this section, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his estate or personal representative; or

(3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subsection (1) of this section, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his employment, including, in the event such officer, director, employee, or agent is deceased, his estate or personal representative;

based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission((~~: PROVIDED, That~~)). However, the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect.

((For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred.

For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.))

This section does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this section by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in RCW 4.16.340(5).

PART 4‑-EARLY DISPUTE RESOLUTION

NEW SECTION. Sec. 9. (1) An attorney who represents a claimant who has accepted an early settlement offer shall not collect a contingent fee that is greater than ten percent of the amount of the early settlement offer.

(2) An attorney who represents a claimant who has rejected or failed to accept an early settlement offer shall not collect a contingent fee that is greater than ten percent of the amount of the early settlement offer plus the percentage of the amount recovered in excess of the early settlement offer as was agreed to by the claimant and the attorney.

(3) A claimant's attorney who has failed to make a demand for compensation under section 10 of this act, or who has omitted from the demand information required under section 10 of this act of a material nature which the attorney had in his or her possession or which was readily available to him or her, shall not collect a contingent fee greater than ten percent of the amount recovered.

(4) A claimant's attorney who has failed to provide his or her client a true and complete copy of an early settlement offer received by the attorney, as required under section 11(3) of this act, shall not collect a contingent fee greater than ten percent of the amount recovered.

(5) Reasonable costs and expenses incurred by an attorney up to the time of receipt of an early settlement offer are deducted from that settlement offer for purposes of calculating the maximum permissible fee under subsections (1) and (2) of this section.

(6) An attorney shall disclose, plainly and in writing, to claimants whom the attorney proposes to represent on a contingent-fee basis: (a) The fee limitations imposed by this section; and (b) the fact that such limitations are maximum limits and that the attorney and claimant may negotiate a lower fee. The attorney shall also provide to each claimant a copy of chapter 4.-- RCW (sections 9 through 15 of this act).

(7) The fee limitations imposed by this section may not be waived.

(8) This section applies to all attorneys practicing in this state, including attorneys prosecuting claims filed in federal court, to the maximum extent permitted by federal law.

NEW SECTION. Sec. 10. (1) An attorney representing a claimant on a contingent-fee basis shall send a demand for compensation by certified mail to each allegedly responsible party. In the event that multiple allegedly responsible parties are known to the attorney, a demand must be sent on the same date to each party. The demand must specify the amount of compensation sought and must set forth the material facts, documentary evidence, and other information relevant to the demand, including:

(a) The name and address of the claimant or of the person on whose behalf the claim is being made;

(b) A brief description of how the injury or loss occurred;

(d) Copies of photographs in the claimant's possession which relate to the injury or loss;

(e) The basis for claiming that the party to whom the demand is addressed is responsible or partially responsible for the injury or loss;

(f) A description of the nature of the injury or loss, including the dates and nature of the care or services provided, and the names and addresses of all physicians and other health care providers that provided medical care or services to the claimant or injured party;

(g) Medical records relating to the injury, including those involving a prior injury or preexisting medical condition which would be discoverable by the allegedly responsible party during the course of litigation or, in lieu thereof, executed releases authorizing the allegedly responsible party to obtain the records directly from those health care providers who provided treatment to the claimant; and

(h) Documentation of any medical expenses, lost wages, personal losses, and other economic and noneconomic losses suffered as a consequence of the injury or loss.

(2) The attorney shall mail copies of each demand to the claimant and to each and every allegedly responsible party.

(3) A claimant's attorney who learns of an additional allegedly responsible party after making a demand for compensation under subsection (1) of this section shall send a demand for compensation to the newly discovered allegedly responsible party and simultaneously mail a copy of the demand to each of the other allegedly responsible parties and to the claimant.

(4) In the event that a claimant's attorney learns of an additional allegedly responsible party more than ninety days after making a demand for compensation under subsection (1) of this section, the attorney shall not be required to send a demand to that party nor do the fee limitations imposed under section 9 (1) and (2) of this act apply with regard to an amount recovered from that party, except as provided by this subsection. An attorney who fails as a result of a breach of the standard of care to learn of an additional allegedly responsible party within ninety days of sending a demand for compensation to another allegedly responsible party shall not collect a fee in excess of that allowed under section 9 (1) and (2) of this act with respect to an amount recovered from the additional allegedly responsible party.

NEW SECTION. Sec. 11. (1) An offer by an allegedly responsible party to settle a claim constitutes an early settlement offer if the allegedly responsible party:

(a) Makes the settlement offer within sixty days of receipt of a demand for compensation;

(b) Communicates the offer in writing and by certified mail to the claimant's attorney; and

(c) Leaves the offer open for acceptance for a minimum of thirty days from the date of its receipt by the claimant's attorney.

(2) An allegedly responsible party may amend or issue an additional early settlement offer during the sixty-day period set forth in subsection (1) of this section. An amended or additional early settlement offer shall be subject to the requirements set forth in subsection (1) of this section.

(3) A settlement offer that is made to a claimant prior to receipt of a demand for compensation, and that conforms to the requirements of subsection (1) of this section is deemed an early settlement offer and has the same effect as if it were a response to a demand for compensation.

(4) An allegedly responsible party is under no obligation to issue a response to a demand for compensation. The fact that a demand for compensation was or was not made, the fact that an early settlement offer was or was not made, and the amount of any demand or settlement offer made are inadmissible at a trial arising from the injury or loss.

(5) An attorney who receives an early settlement offer shall provide a true and complete copy of the offer to his or her client.

NEW SECTION. Sec. 12. The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION. Sec. 13. A fiduciary relationship applies with respect to a fee agreement between an attorney and a claimant.

NEW SECTION. Sec. 14. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Allegedly responsible party" means a person, partnership, or corporation alleged by a claimant to be responsible for at least some portion of an injury or loss alleged by that claimant.

(2) "Amount recovered" means the total compensation, including the reasonable value of nonmonetary compensation, that an attorney has obtained on behalf of a claimant through settlement, arbitration, or judgment, minus the reasonable costs and expenses incurred by the attorney in prosecuting or settling the claim.

(3) "Claimant" means any natural person or persons seeking compensation in connection with a claim for personal injury or wrongful death, but does not include a claim for workers' compensation benefits, or a case in which a court has certified the existence of a class action pursuant to state or federal law.

(4) "Contingent fee" means compensation, however calculated, that is payable only if an amount is recovered.

(5) "Early settlement offer" means a settlement offer made in accordance with section 11 of this act.

NEW SECTION. Sec. 15. Sections 9 through 14 of this act apply to all civil actions for damages for injury occurring as a result of health care.

Sec. 16. RCW 4.24.005 and 1987 c 212 s 1601 are each amended to read as follows:

Any party charged with the payment of attorney's fees in any tort action may petition the court not later than forty-five days of receipt of a final billing or accounting for a determination of the reasonableness of that party's attorneys' fees. The court shall make such a determination and shall take into consideration the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) Whether the fee is fixed or contingent;

(9) Whether the fixed or contingent fee agreement was in writing and whether the client was aware of his or her right to petition the court under this section;

(10) The terms of the fee agreement.

However, an attorney's contingency fee is limited to the maximum permissible fee allowed under chapter 4.-- RCW (sections 9 through 15 of this act).

Sec. 17. RCW 7.70.070 and 1975-'76 2nd ex.s. c 56 s 12 are each amended to read as follows:

The court shall, in any action under this chapter, determine the reasonableness of each party's attorneys fees. The court shall take into consideration the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) Whether the fee is fixed or contingent.

However, an attorney's contingency fee is limited to the maximum permissible fee allowed under chapter 4.-- RCW (sections 9 through 15 of this act).

PART 5‑-HEALTH PLAN LIABILITY

NEW SECTION. Sec. 18. A new section is added to chapter 7.70 RCW to read as follows:

A health care provider, as defined in RCW 48.43.005, is not liable for liability assumed under contract for the decision of a third-party payer or others not to pay for or provide reimbursement for health care services recommended by the health care provider when:

(1) The health care provider complies with any formal or informal avenues of appeal made available by the third-party payer or others under a health plan, as defined in RCW 48.43.005, or under any other contract or policy providing or paying for health care benefits or services; and

(2) The health care provider advises the patient to obtain the recommended care, even if not covered by the third-party payer, and informs the patient of the potential risks in not obtaining the recommended health care services.

PART 6--MISCELLANEOUS

NEW SECTION. Sec. 19. Sections 9 through 15 of this act constitute a new chapter in Title 4 RCW.

NEW SECTION. Sec. 20. Part headings used in this act do not constitute any part of the law.

NEW SECTION. Sec. 21. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.