BILL REQ. #: S-3588.3
| State of Washington | 58th Legislature | 2004 Regular Session |
Read first time 01/22/2004. Referred to Committee on Judiciary.
AN ACT Relating to civil liability reform; amending RCW 4.22.070, 4.22.015, 4.56.115, 4.56.110, 19.52.025, 4.56.250, 7.70.070, 7.70.100, 4.16.350, 7.70.080, 7.70.060, 4.24.250, 43.70.510, 70.41.200, 43.70.110, 43.70.250, 51.24.035, 4.16.300, 46.61.688, 4.92.005, 4.96.010, 4.92.040, 4.92.090, and 4.92.130; adding new sections to chapter 4.24 RCW; adding new sections to chapter 4.56 RCW; adding a new section to chapter 7.04 RCW; adding new sections to chapter 7.70 RCW; adding new sections to chapter 43.70 RCW; adding new sections to chapter 7.72 RCW; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 101 The legislature finds that counties,
cities, other governmental entities, professionals, health care
providers, businesses, individuals, and nonprofit organizations are
finding it increasingly difficult to find affordable liability
insurance. One of the drivers increasing the cost of liability
insurance is the potential liability beyond one's proportionate share
of fault that a defendant must be insured against. Therefore, it is
the intent of the legislature to enact reforms that create a more
equitable distribution of liability based upon one's proportionate
share of fault.
The legislature also finds, notwithstanding the tort reform
measures it has enacted in the past, that in many instances defendants
continue to pay more than their proportionate share of a claimant's
total damages. The legislature in the 1986 tort reform act adopted as
the policy of this state that several, or proportionate, liability is
the general rule, subject to certain limited exceptions. This policy
has been consistently recognized by the Washington state supreme court
and most recently in Tegman v. Accident & Medical Investigations, 75
P.3d 497 (2003) when the court correctly stated "As we have
consistently recognized, RCW 4.22.070 provides that several, or
proportionate, liability is now intended to be the general rule."
Tegman, 75 P.3d 499 (2003). The legislature now intends to limit
further the exceptions to the general rule of several or proportionate
liability.
Sec. 102 RCW 4.22.070 and 1993 c 496 s 1 are each amended to read
as follows:
(1) In all actions involving fault of more than one entity, the
trier of fact shall determine the percentage of the total fault which
is attributable to every entity which caused the claimant's damages
except entities immune from liability to the claimant under Title 51
RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose
fault shall be determined include the claimant or person suffering
personal injury or incurring property damage, defendants, third-party
defendants, entities ((released by)) who have entered into a release,
covenant not to sue, covenant not to enforce judgment, or similar
agreement with the claimant, entities with any other individual defense
against the claimant, and entities immune from liability to the
claimant, but shall not include those entities immune from liability to
the claimant under Title 51 RCW. Judgment shall be entered against
each defendant except those entities who have ((been released by))
entered into a release, covenant not to sue, covenant not to enforce
judgment, or similar agreement with the claimant or are immune from
liability to the claimant or have prevailed on any other individual
defense against the claimant in an amount which represents that party's
proportionate share of the claimant's total damages. The liability of
each defendant shall be several only and shall not be joint except((:)) a party shall be responsible for the fault of another person
or for payment of the proportionate share of another party where both
were acting in concert or when a person was acting as an agent or
servant of the party.
(a)
(((b) If the trier of fact determines that the claimant or party
suffering bodily injury or incurring property damages was not at fault,
the defendants against whom judgment is entered shall be jointly and
severally liable for the sum of their proportionate shares of the
claimants [claimant's] total damages.))
(2) If a defendant is jointly and severally liable under ((one of))
the exception((s)) listed in subsection((s)) (1)(((a) or (1)(b))) of
this section, such defendant's rights to contribution against another
jointly and severally liable defendant, and the effect of settlement by
either such defendant, shall be determined under RCW 4.22.040,
4.22.050, and 4.22.060.
(3)(a) Nothing in this section affects any cause of action relating
to hazardous wastes or substances or solid waste disposal sites.
(b) Nothing in this section shall affect a cause of action arising
from the tortious interference with contracts or business relations.
(c) Nothing in this section shall affect any cause of action
arising from the manufacture or marketing of a fungible product in a
generic form which contains no clearly identifiable shape, color, or
marking.
Sec. 103 RCW 4.22.015 and 1981 c 27 s 9 are each amended to read
as follows:
"Fault" includes acts or omissions, including misuse of a product,
that are in any measure negligent or reckless toward the person or
property of the actor or others, or that subject a person to strict
tort liability or liability on a product liability claim. The term
also includes breach of warranty, unreasonable assumption of risk, and
unreasonable failure to avoid an injury or to mitigate damages. Legal
requirements of causal relation apply both to fault as the basis for
liability and to contributory fault.
A comparison of fault for any purpose under RCW 4.22.005 through
((4.22.060)) 4.22.070 shall involve consideration of both the nature of
the conduct of the parties to the action and the extent of the causal
relation between such conduct and the damages.
NEW SECTION. Sec. 201 The legislature finds that employers are
becoming increasingly discouraged from disclosing job reference
information by unclear laws and uncertain standards of liability. The
legislature further finds that full good faith disclosure of job
reference information will increase productivity, enhance the safety of
the workplace, and provide greater opportunities to disadvantaged
groups who may not have the educational background or resumes of other
workers.
NEW SECTION. Sec. 202 A new section is added to chapter 4.24 RCW
to read as follows:
(1) An employer who discloses information about a former or current
employee's job performance, conduct, or other work-related information
to a prospective employer, or employment agency as defined by RCW
49.60.040, at the specific request of that individual employer or
employment agency, is immune from civil liability for such disclosure
or its consequences when such disclosure is made in good faith. For
purposes of this section, an employer's disclosure of work-related
information at the specific request of another employer or employment
agency is presumed to be made in good faith. However, the presumption
of good faith may be rebutted upon a showing of clear, cogent, and
convincing evidence that the information disclosed by the employer was
knowingly false or deliberately misleading.
(2) For the purposes of this section, "employer" means a
corporation, firm, organization, or any other entity with one or more
employees and the employees and agents of the corporation, firm,
organization, or other entity when acting within the scope of their
employment or agency.
Sec. 301 RCW 4.56.115 and 1983 c 147 s 2 are each amended to read
as follows:
Judgments founded on the tortious conduct of the state of
Washington or of the political subdivisions, municipal corporations,
and quasi municipal corporations of the state, whether acting in their
governmental or proprietary capacities, shall bear interest from the
date of entry at two percentage points above the ((maximum rate
permitted under RCW 19.52.020 on)) equivalent coupon issue yield (as
published by the board of governors of the federal reserve system) of
the average bill rate for twenty-six week treasury bills as determined
at the first bill market auction conducted during the calendar month
immediately preceding the date of entry thereof((: PROVIDED, That)).
In any case where a court is directed on review to enter judgment on a
verdict or in any case where a judgment entered on a verdict is wholly
or partly affirmed on review, interest on the judgment or on that
portion of the judgment affirmed shall date back to and shall accrue
from the date the verdict was rendered. Interest does not accrue on
that portion of a judgment that is subject to appropriation by the
legislature under RCW 4.92.090 or by a local legislative authority
under RCW 4.96.010 until the appropriation has been made by the
legislature or local legislative authority.
Sec. 302 RCW 4.56.110 and 1989 c 360 s 19 are each amended to
read as follows:
Interest on judgments shall accrue as follows:
(1) Judgments founded on written contracts, providing for the
payment of interest until paid at a specified rate, shall bear interest
at the rate specified in the contracts: PROVIDED, That said interest
rate is set forth in the judgment.
(2) All judgments for unpaid child support that have accrued under
a superior court order or an order entered under the administrative
procedure act shall bear interest at the rate of twelve percent.
(3) Judgments founded on the tortious conduct of individuals or
other entities, whether acting in their personal or representative
capacities, shall bear interest from the date of entry at two
percentage points above the equivalent coupon issue yield, as published
by the board of governors of the federal reserve system, of the average
bill rate for twenty-six week treasury bills as determined at the first
bill market auction conducted during the calendar month immediately
preceding the date of entry. In any case where a court is directed on
review to enter judgment on a verdict or in any case where a judgment
entered on a verdict is wholly or partly affirmed on review, interest
on the judgment or on that portion of the judgment affirmed shall date
back to and shall accrue from the date the verdict was rendered.
(4) Except as provided under subsections (1) ((and)), (2), and (3)
of this section, judgments shall bear interest from the date of entry
at the maximum rate permitted under RCW 19.52.020 on the date of entry
thereof((: PROVIDED, That)). In any case where a court is directed on
review to enter judgment on a verdict or in any case where a judgment
entered on a verdict is wholly or partly affirmed on review, interest
on the judgment or on that portion of the judgment affirmed shall date
back to and shall accrue from the date the verdict was rendered. The
method for determining an interest rate prescribed by this subsection
is also the method for determining the "rate applicable to civil
judgments" for purposes of RCW 10.82.090.
NEW SECTION. Sec. 303 The rate of interest required by sections
301 and 302(3), chapter . . ., Laws of 2004 (sections 301 and 302(3) of
this act) applies to the accrual of interest as of the date of entry of
judgment with respect to a judgment that is entered on or after the
effective date of this section.
Sec. 304 RCW 19.52.025 and 1986 c 60 s 1 are each amended to read
as follows:
Each month the state treasurer shall compute the highest rate of
interest permissible under RCW 19.52.020(1), and the rate of interest
required by RCW 4.56.110(3) and 4.56.115, for the succeeding calendar
month. The treasurer shall file ((this rate)) these rates with the
state code reviser for publication in the next available issue of the
Washington State Register in compliance with RCW 34.08.020(8).
NEW SECTION. Sec. 401 The legislature finds that it is in the
best interest of the people of the state of Washington to contain the
significantly increasing costs of malpractice insurance for licensed
health care professionals and institutions and noninstitutional care
providers in order to ensure the continued availability and
affordability of health care services in this state by enacting further
reforms to the health care tort liability system.
The legislature finds that, notwithstanding the tort reform
measures it has enacted in the past, the amounts being paid out in
judgments and settlements have continued to increase inordinately, and
that as a result there have been dramatic increases in the cost of
health care professional liability insurance coverage. The legislature
further finds that the upward pressures on already high malpractice
insurance premiums threaten the publics' health by discouraging
physicians and other health care professionals from initiating or
continuing their practice in this state.
The legislature further finds that the state of California, largely
as a result of its enactment of the "medical injury compensation reform
act" in 1975, has been able to successfully stabilize the health care
professional liability insurance market, maintain access to affordable
quality health care services, and avert the kind of crisis now facing
the residents of Washington.
The legislature finds that such reforms are rationally related to
the legitimate goals of reducing the costs associated with the health
care tort liability system while ensuring adequate and appropriate
compensation for persons injured as a result of health care, ensuring
the continued availability and affordability of health care services in
this state, preventing the curtailment of health care services in this
state, stabilizing insurance and health care costs, preventing stale
health care liability claims, and protecting and preserving the public
health, safety, and welfare as a whole.
Sec. 402 RCW 4.56.250 and 1986 c 305 s 301 are each amended to
read as follows:
(1) As used in this section, the following terms have the meanings
indicated unless the context clearly requires otherwise.
(a) "Economic damages" means objectively verifiable monetary
losses, including medical expenses, loss of earnings, burial costs,
loss of use of property, cost of replacement or repair, cost of
obtaining substitute domestic services, loss of employment, and loss of
business or employment opportunities.
(b) "Noneconomic damages" means subjective, nonmonetary losses,
including((,)) but not limited to pain, suffering, inconvenience,
mental anguish, disability or disfigurement incurred by the injured
party, loss of ability to enjoy life, emotional distress, loss of
society and companionship, loss of consortium, injury to reputation and
humiliation, ((and)) destruction of the parent-child relationship, and
other nonpecuniary damages of any type.
(c) "Bodily injury" means physical injury, sickness, or disease,
including death.
(d) "Average annual wage" means the average annual wage in the
state of Washington as determined under RCW 50.04.355.
(2) In no action seeking damages for personal injury or death may
a claimant recover a judgment for noneconomic damages exceeding an
amount determined by multiplying 0.43 by the average annual wage and by
the life expectancy of the person incurring noneconomic damages, as the
life expectancy is determined by the life expectancy tables adopted by
the insurance commissioner. For purposes of determining the maximum
amount allowable for noneconomic damages, a claimant's life expectancy
shall not be less than fifteen years. The limitation contained in this
subsection applies to all claims for noneconomic damages made by a
claimant who incurred bodily injury. Claims for loss of consortium,
loss of society and companionship, destruction of the parent-child
relationship, and all other derivative claims asserted by persons who
did not sustain bodily injury are to be included within the limitation
on claims for noneconomic damages arising from the same bodily injury.
(3) If a case is tried to a jury, the jury shall not be informed of
the limitation contained in subsection (2) of this section.
NEW SECTION. Sec. 403 A new section is added to chapter 4.56 RCW
to read as follows:
(1) In an action or arbitration for damages for injury or death
occurring as a result of health care, or arranging for the provision of
health care, whether brought under chapter 7.70 RCW, or under RCW
4.20.010, 4.20.020, 4.20.046, 4.20.060, 4.24.010, or 48.43.545(1), or
any combination thereof, the total amount of noneconomic damages may
not exceed two hundred fifty thousand dollars.
(2) The limitation on noneconomic damages contained in subsection
(1) of this section includes all noneconomic damages claimed by or on
behalf of the person whose injury or death occurred as a result of
health care or arranging for the provision of health care, as well as
all claims for loss of consortium, loss of society and companionship,
destruction of the parent-child relationship, and other derivative
claims asserted by or on behalf of others arising from the same injury
or death. If the jury's assessment of noneconomic damages exceeds the
limitation contained in subsection (1) of this section, nothing in RCW
4.44.450 precludes the court from entering a judgment that limits the
total amount of noneconomic damages to those limits provided in
subsection (1) of this section.
Sec. 404 RCW 7.70.070 and 1975-'76 2nd ex.s. c 56 s 12 are each
amended to read as follows:
(1) Except as set forth in subsection (2) of this section, 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))) (a) The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to perform the legal
service properly;
(((2))) (b) The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other employment
by the lawyer;
(((3))) (c) The fee customarily charged in the locality for similar
legal services;
(((4))) (d) The amount involved and the results obtained;
(((5))) (e) The time limitations imposed by the client or by the
circumstances;
(((6))) (f) The nature and length of the professional relationship
with the client;
(((7))) (g) The experience, reputation, and ability of the lawyer
or lawyers performing the services;
(((8))) (h) Whether the fee is fixed or contingent.
(2)(a) An attorney may not contract for or collect a contingency
fee for representing a person in connection with an action for damages
against a health care provider based upon professional negligence in
excess of the following limits:
(i) Forty percent of the first fifty thousand dollars recovered;
(ii) Thirty-three and one-third percent of the next fifty thousand
dollars recovered;
(iii) Twenty-five percent of the next five hundred thousand dollars
recovered;
(iv) Fifteen percent of any amount in which the recovery exceeds
six hundred thousand dollars.
(b) The limitations in this section apply regardless of whether the
recovery is by judgment, settlement, arbitration, mediation, or other
form of alternative dispute resolution.
(c) If periodic payments are awarded to the plaintiff, the court
shall place a total value on these payments and include this amount in
computing the total award from which attorneys' fees are calculated
under this subsection.
(d) For purposes of this subsection, "recovered" means the net sum
recovered after deducting any disbursements or costs incurred in
connection with prosecution or settlement of the claim. Costs of
medical care incurred by the plaintiff and the attorneys' office
overhead costs or charges are not deductible disbursements or costs for
such purposes.
(3) This section applies to all agreements for attorneys' fees
entered into or modified after the effective date of this section.
Sec. 405 RCW 7.70.100 and 1993 c 492 s 419 are each amended to
read as follows:
(1) No action based upon a health care provider's professional
negligence may be commenced unless the defendant has been given at
least ninety days' notice of the intention to commence the action. If
the notice is served within ninety days of the expiration of the
applicable statute of limitations, the time for the commencement of the
action must be extended ninety days from the service of the notice.
(2) The provisions of subsection (1) of this section are not
applicable with respect to any defendant whose name is unknown to the
plaintiff at the time of filing the complaint and who is identified
therein by a fictitious name.
(3) After the filing of the ninety-day presuit notice, and before
a superior court trial, all causes of action, whether based in tort,
contract, or otherwise, for damages arising from injury occurring as a
result of health care provided after July 1, 1993, shall be subject to
mandatory mediation prior to trial.
(((2))) (4) The supreme court shall by rule adopt procedures to
implement mandatory mediation of actions under this chapter. The rules
shall require mandatory mediation without exception and address, at a
minimum:
(a) Procedures for the appointment of, and qualifications of,
mediators. A mediator shall have experience or expertise related to
actions arising from injury occurring as a result of health care, and
be a member of the state bar association who has been admitted to the
bar for a minimum of five years or who is a retired judge. The parties
may stipulate to a nonlawyer mediator. The court may prescribe
additional qualifications of mediators;
(b) Appropriate limits on the amount or manner of compensation of
mediators;
(c) The number of days following the filing of a claim under this
chapter within which a mediator must be selected;
(d) The method by which a mediator is selected. The rule shall
provide for designation of a mediator by the superior court if the
parties are unable to agree upon a mediator;
(e) The number of days following the selection of a mediator within
which a mediation conference must be held;
(f) A means by which mediation of an action under this chapter may
be waived by a mediator who has determined that the claim is not
appropriate for mediation; and
(g) Any other matters deemed necessary by the court.
(((3))) (5) Mediators shall not impose discovery schedules upon the
parties.
(6) The supreme court shall by rule also adopt procedures for the
parties to certify to the court the manner of mediation used by the
parties to comply with this section.
Sec. 406 RCW 4.16.350 and 1998 c 147 s 1 are each amended to read
as follows:
(1) Any civil action for damages for injury or death occurring as
a result of health care which is provided after June 25, 1976, against:
(((1))) (a) 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, 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))) (b) An employee or agent of a person described in (a) of
this subsection (((1) of this section)), acting in the course and scope
of his or her employment, including, in the event such employee or
agent is deceased, his or her estate or personal representative; or
(((3))) (c) An entity, whether or not incorporated, facility, or
institution employing one or more persons described in (a) of this
subsection (((1) of this section)), including, but not limited to, a
hospital, clinic, health maintenance organization, ((or)) nursing home,
or boarding home; or an officer, director, employee, or agent thereof
acting in the course and scope of his or her employment, including, in
the event such officer, director, employee, or agent is deceased, his
or her 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 or her
representative or custodial parent or guardian 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 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, until the date the patient or the patient's representative
has actual knowledge of the act of fraud or concealment, or of the
presence of the foreign body; the patient or the patient's
representative has one year from the date of the actual knowledge in
which to commence a civil action for damages.)) occurs first.
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
(2) In no event may an action be commenced more than three years
after the act or omission alleged to have caused the injury or
condition except:
(a) Upon proof of fraud, intentional concealment, or the presence
of a foreign body not intended to have a therapeutic or diagnostic
purpose or effect, in which case the patient or the patient's
representative has one year from the date the patient or the patient's
representative or custodial parent or guardian has actual knowledge of
the act of fraud or concealment or of the presence of the foreign body
in which to commence a civil action for damages.
(b) In the case of a minor, for any period during minority, but
only for such period during minority in which the minor's custodial
parent or guardian and the defendant or the defendant's insurer have
committed fraud or collusion in the failure to bring an action on
behalf of the minor.
(c) In the case of a minor under the full age of six years, in
which case the action on behalf of the minor must be commenced within
three years or prior to the minor's eighth birthday, whichever provides
a longer period.
(3) Any action not commenced in accordance with this section is
barred.
(4) For purposes of this section, the tolling provisions of RCW
4.16.190 do not apply.
(5) 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).
Sec. 407 RCW 7.70.080 and 1975-'76 2nd ex.s. c 56 s 13 are each
amended to read as follows:
(1) Any party may present evidence to the trier of fact that the
((patient)) plaintiff has already been, or will be, compensated for the
injury complained of from ((any source except the assets of the
patient, his representative, or his immediate family, or insurance
purchased with such assets. In the event such evidence is admitted,
the plaintiff may present evidence of an obligation to repay such
compensation. Insurance bargained for or provided on behalf of an
employee shall be considered insurance purchased with the assets of the
employee)) a collateral source. In the event the evidence is admitted,
the other party may present evidence of any amount that was paid or
contributed to secure the right to any compensation. Compensation as
used in this section shall mean payment of money or other property to
or on behalf of the patient, rendering of services to the patient free
of charge to the patient, or indemnification of expenses incurred by or
on behalf of the patient. Notwithstanding this section, evidence of
compensation by a defendant health care provider may be offered only by
that provider.
(2) Unless otherwise provided by statute, there is no right of
subrogation or reimbursement from a plaintiff's tort recovery with
respect to compensation covered in subsection (1) of this section.
NEW SECTION. Sec. 408 A new section is added to chapter 7.04 RCW
to read as follows:
(1) A contract for health care services that contains a provision
for arbitration of a dispute as to professional negligence of a health
care provider under chapter 7.70 RCW must have the provision as the
first article of the contract and must be expressed in the following
language:
"It is understood that any dispute as to medical malpractice that
is as to whether any medical services rendered under this contract were
unnecessary or unauthorized or were improperly, negligently, or
incompetently rendered, will be determined by submission to arbitration
as provided by Washington law, and not by a lawsuit or resort to court
process except as Washington law provides for judicial review of
arbitration proceedings. Both parties to this contract, by entering
into it, are giving up their constitutional right to have such a
dispute decided in a court of law before a jury, and instead are
accepting the use of arbitration."
(2) Immediately before the signature line provided for the
individual contracting for the medical services, there must appear the
following in at least ten-point bold red type:
"NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY
ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE
GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE ONE OF THIS
CONTRACT."
(3) Once signed, such a contract governs all subsequent open-book
account transactions for medical services for which the contract was
signed until or unless rescinded by written notice within thirty days
of signature. Written notice of such rescission may be given by a
guardian or other legal representative of the patient if the patient is
incapacitated or a minor.
(4) Where the contract is one for medical services to a minor, it
may not be disaffirmed if signed by the minor's parent or legal
guardian.
(5) Such a contract is not a contract of adhesion, nor
unconscionable, nor otherwise improper, where it complies with
subsections (1) through (3) of this section.
(6) Subsections (1) through (3) of this section do not apply to any
health benefit plan contract offered by an organization regulated under
Title 48 RCW that has been negotiated to contain an arbitration
agreement with subscribers and enrollees under such a contract.
NEW SECTION. Sec. 409 A new section is added to chapter 7.70 RCW
to read as follows:
RCW 7.70.100, 7.70.110, 7.70.120, and 7.70.130 do not apply if
there is a contract for binding arbitration under section 408 of this
act.
NEW SECTION. Sec. 410 A new section is added to chapter 7.70 RCW
to read as follows:
(1) The definitions in this subsection apply throughout this
section unless the context clearly requires otherwise.
(a) "Future damages" includes damages for future medical treatment,
care or custody, loss of future earnings, loss of bodily function, or
future pain and suffering of the judgment creditor.
(b) "Periodic payments" means the payment of money or delivery of
other property to the judgment creditor at regular intervals.
(2) In any action for damages for injury occurring as a result of
health care, the court shall, at the request of either party, enter a
judgment ordering that money damages or its equivalent for future
damages of the judgment creditor be paid in whole or in part by
periodic payments rather than by a lump-sum payment if the award equals
or exceeds fifty thousand dollars in future damages. In entering a
judgment ordering the payment of future damages by periodic payments,
the court shall make a specific finding as to the dollar amount of
periodic payments which will compensate the judgment creditor for such
future damages. As a condition to authorizing periodic payments of
future damages, the court shall require the judgment debtor who is not
adequately insured to post security adequate to ensure full payment of
such damages awarded by the judgment. Upon termination of periodic
payments of future damages, the court shall order the return of this
security, or so much as remains, to the judgment debtor.
(3)(a) The judgment ordering the payment of future damages by
periodic payments must specify the recipient or recipients of the
payments, the dollar amount of the payments, the interval between
payments, and the number of payments or the period of time over which
payments must be made. The payments are only subject to modification
in the event of the death of the judgment creditor.
(b) In the event that the court finds that the judgment debtor has
exhibited a continuing pattern of failing to make the payments, as
specified in (a) of this subsection, the court shall find the judgment
debtor in contempt of court and, in addition to the required periodic
payments, shall order the judgment debtor to pay the judgment creditor
all damages caused by the failure to make such periodic payments,
including court costs and attorneys' fees.
(4) However, money damages awarded for loss of future earnings may
not be reduced or payments terminated by reason of the death of the
judgment creditor, but must be paid to persons to whom the judgment
creditor owed a duty of support, as provided by law, immediately prior
to his or her death. In such cases the court that rendered the
original judgment, may, upon petition of any party in interest, modify
the judgment to award and apportion the unpaid future damages in
accordance with this subsection (4).
(5) Following the occurrence or expiration of all obligations
specified in the periodic payment judgment, any obligation of the
judgment debtor to make further payments ceases and any security given
under subsection (2) of this section reverts to the judgment debtor.
(6) For purposes of this section, the provisions of RCW 4.56.250 do
not apply.
(7) It is the intent of the legislature in enacting this section to
authorize, in actions for damages for injury occurring as a result of
health care, the entry of judgments that provide for the payment of
future damages through periodic payments rather than lump-sum payments.
By authorizing periodic payment judgments, it is the further intent of
the legislature that the courts will utilize such judgments to provide
compensation sufficient to meet the needs of an injured plaintiff and
those persons who are dependent on the plaintiff for whatever period is
necessary while eliminating the potential windfall from a lump-sum
recovery that was intended to provide for the care of an injured
plaintiff over an extended period who then dies shortly after the
judgment is paid, leaving the balance of the judgment award to persons
and purposes for which it was not intended. It is also the intent of
the legislature that all elements of the periodic payment program be
specified with certainty in the judgment ordering such payments and
that the judgment not be subject to modification at some future time
that might alter the specifications of the original judgment.
NEW SECTION. Sec. 411 A new section is added to chapter 4.56 RCW
to read as follows:
In the event that the Washington state supreme court or other court
of competent jurisdiction rules or affirms that section 403 of this act
is unconstitutional, then the prescribed cap on noneconomic damages
takes effect upon the ratification of a state constitutional amendment
that empowers the legislature to place limits on the amount of
noneconomic damages recoverable in any or all civil causes of action.
Sec. 412 RCW 7.70.060 and 1975-'76 2nd ex.s. c 56 s 11 are each
amended to read as follows:
If a patient while legally competent, or his or her representative
if he or she is not competent, signs a consent form which sets forth
the following, the signed consent form shall constitute prima facie
evidence that the patient gave his or her informed consent to the
treatment administered and the patient has the burden of rebutting this
by ((a preponderance of the)) clear, cogent, and convincing evidence:
(1) A description, in language the patient could reasonably be
expected to understand, of:
(a) The nature and character of the proposed treatment;
(b) The anticipated results of the proposed treatment;
(c) The recognized possible alternative forms of treatment; and
(d) The recognized serious possible risks, complications, and
anticipated benefits involved in the treatment and in the recognized
possible alternative forms of treatment, including nontreatment;
(2) Or as an alternative, a statement that the patient elects not
to be informed of the elements set forth in subsection (1) of this
section.
Failure to use a form shall not be admissible as evidence of
failure to obtain informed consent.
Sec. 413 RCW 4.24.250 and 1981 c 181 s 1 are each amended to read
as follows:
(1) Any health care provider as defined in RCW 7.70.020 (1) and (2)
as now existing or hereafter amended who, in good faith, files charges
or presents evidence against another member of their profession based
on the claimed incompetency or gross misconduct of such person before
a regularly constituted review committee or board of a professional
society or hospital whose duty it is to evaluate the competency and
qualifications of members of the profession, including limiting the
extent of practice of such person in a hospital or similar institution,
or before a regularly constituted committee or board of a hospital
whose duty it is to review and evaluate the quality of patient care,
shall be immune from civil action for damages arising out of such
activities. The proceedings, reports, and written records of such
committees or boards, or of a member, employee, staff person, or
investigator of such a committee or board, shall not be subject to
subpoena or discovery proceedings in any civil action, except actions
arising out of the recommendations of such committees or boards
involving the restriction or revocation of the clinical or staff
privileges of a health care provider as defined above.
(2) A coordinated quality improvement program maintained in
accordance with RCW 43.70.510 or 70.41.200 may share information and
documents, including complaints and incident reports, created
specifically for, and collected and maintained by a coordinated quality
improvement committee or committees or boards under subsection (1) of
this section, with one or more other coordinated quality improvement
programs for the improvement of the quality of health care services
rendered to patients and the identification and prevention of medical
malpractice. Information and documents disclosed by one coordinated
quality improvement program to another coordinated quality improvement
program and any information and documents created or maintained as a
result of the sharing of information and documents shall not be subject
to the discovery process and confidentiality shall be respected as
required by subsection (1) of this section and by RCW 43.70.510(4) and
70.41.200(3).
Sec. 414 RCW 43.70.510 and 1995 c 267 s 7 are each amended to
read as follows:
(1)(a) Health care institutions and medical facilities, other than
hospitals, that are licensed by the department, professional societies
or organizations, health care service contractors, health maintenance
organizations, health carriers approved pursuant to chapter 48.43 RCW,
and any other person or entity providing health care coverage under
chapter 48.42 RCW that is subject to the jurisdiction and regulation of
any state agency or any subdivision thereof may maintain a coordinated
quality improvement program for the improvement of the quality of
health care services rendered to patients and the identification and
prevention of medical malpractice as set forth in RCW 70.41.200.
(b) All such programs shall comply with the requirements of RCW
70.41.200(1)(a), (c), (d), (e), (f), (g), and (h) as modified to
reflect the structural organization of the institution, facility,
professional societies or organizations, health care service
contractors, health maintenance organizations, health carriers, or any
other person or entity providing health care coverage under chapter
48.42 RCW that is subject to the jurisdiction and regulation of any
state agency or any subdivision thereof, unless an alternative quality
improvement program substantially equivalent to RCW 70.41.200(1)(a) is
developed. All such programs, whether complying with the requirement
set forth in RCW 70.41.200(1)(a) or in the form of an alternative
program, must be approved by the department before the discovery
limitations provided in subsections (3) and (4) of this section and the
exemption under RCW 42.17.310(1)(hh) and subsection (5) of this section
shall apply. In reviewing plans submitted by licensed entities that
are associated with physicians' offices, the department shall ensure
that the exemption under RCW 42.17.310(1)(hh) and the discovery
limitations of this section are applied only to information and
documents related specifically to quality improvement activities
undertaken by the licensed entity.
(2) Health care provider groups of ((ten)) five or more providers
may maintain a coordinated quality improvement program for the
improvement of the quality of health care services rendered to patients
and the identification and prevention of medical malpractice as set
forth in RCW 70.41.200. All such programs shall comply with the
requirements of RCW 70.41.200(1)(a), (c), (d), (e), (f), (g), and (h)
as modified to reflect the structural organization of the health care
provider group. All such programs must be approved by the department
before the discovery limitations provided in subsections (3) and (4) of
this section and the exemption under RCW 42.17.310(1)(hh) and
subsection (5) of this section shall apply.
(3) Any person who, in substantial good faith, provides information
to further the purposes of the quality improvement and medical
malpractice prevention program or who, in substantial good faith,
participates on the quality improvement committee shall not be subject
to an action for civil damages or other relief as a result of such
activity.
(4) Information and documents, including complaints and incident
reports, created specifically for, and collected, and maintained by a
quality improvement committee are not subject to discovery or
introduction into evidence in any civil action, and no person who was
in attendance at a meeting of such committee or who participated in the
creation, collection, or maintenance of information or documents
specifically for the committee shall be permitted or required to
testify in any civil action as to the content of such proceedings or
the documents and information prepared specifically for the committee.
This subsection does not preclude: (a) In any civil action, the
discovery of the identity of persons involved in the medical care that
is the basis of the civil action whose involvement was independent of
any quality improvement activity; (b) in any civil action, the
testimony of any person concerning the facts that form the basis for
the institution of such proceedings of which the person had personal
knowledge acquired independently of such proceedings; (c) in any civil
action by a health care provider regarding the restriction or
revocation of that individual's clinical or staff privileges,
introduction into evidence information collected and maintained by
quality improvement committees regarding such health care provider; (d)
in any civil action challenging the termination of a contract by a
state agency with any entity maintaining a coordinated quality
improvement program under this section if the termination was on the
basis of quality of care concerns, introduction into evidence of
information created, collected, or maintained by the quality
improvement committees of the subject entity, which may be under terms
of a protective order as specified by the court; (e) in any civil
action, disclosure of the fact that staff privileges were terminated or
restricted, including the specific restrictions imposed, if any and the
reasons for the restrictions; or (f) in any civil action, discovery and
introduction into evidence of the patient's medical records required by
rule of the department of health to be made regarding the care and
treatment received.
(5) Information and documents created specifically for, and
collected and maintained by a quality improvement committee are exempt
from disclosure under chapter 42.17 RCW.
(6) A coordinated quality improvement program may share information
and documents, including complaints and incident reports, created
specifically for, and collected and maintained by a quality improvement
committee or a peer review committee under RCW 4.24.250 with one or
more other coordinated quality improvement programs maintained in
accordance with this section or with RCW 70.41.200, for the improvement
of the quality of health care services rendered to patients and the
identification and prevention of medical malpractice. Information and
documents disclosed by one coordinated quality improvement program to
another coordinated quality improvement program and any information and
documents created or maintained as a result of the sharing of
information and documents shall not be subject to the discovery process
and confidentiality shall be respected as required by subsection (4) of
this section and RCW 4.24.250.
(7) The department of health shall adopt rules as are necessary to
implement this section.
Sec. 415 RCW 70.41.200 and 2000 c 6 s 3 are each amended to read
as follows:
(1) Every hospital shall maintain a coordinated quality improvement
program for the improvement of the quality of health care services
rendered to patients and the identification and prevention of medical
malpractice. The program shall include at least the following:
(a) The establishment of a quality improvement committee with the
responsibility to review the services rendered in the hospital, both
retrospectively and prospectively, in order to improve the quality of
medical care of patients and to prevent medical malpractice. The
committee shall oversee and coordinate the quality improvement and
medical malpractice prevention program and shall ensure that
information gathered pursuant to the program is used to review and to
revise hospital policies and procedures;
(b) A medical staff privileges sanction procedure through which
credentials, physical and mental capacity, and competence in delivering
health care services are periodically reviewed as part of an evaluation
of staff privileges;
(c) The periodic review of the credentials, physical and mental
capacity, and competence in delivering health care services of all
persons who are employed or associated with the hospital;
(d) A procedure for the prompt resolution of grievances by patients
or their representatives related to accidents, injuries, treatment, and
other events that may result in claims of medical malpractice;
(e) The maintenance and continuous collection of information
concerning the hospital's experience with negative health care outcomes
and incidents injurious to patients, patient grievances, professional
liability premiums, settlements, awards, costs incurred by the hospital
for patient injury prevention, and safety improvement activities;
(f) The maintenance of relevant and appropriate information
gathered pursuant to (a) through (e) of this subsection concerning
individual physicians within the physician's personnel or credential
file maintained by the hospital;
(g) Education programs dealing with quality improvement, patient
safety, medication errors, injury prevention, staff responsibility to
report professional misconduct, the legal aspects of patient care,
improved communication with patients, and causes of malpractice claims
for staff personnel engaged in patient care activities; and
(h) Policies to ensure compliance with the reporting requirements
of this section.
(2) Any person who, in substantial good faith, provides information
to further the purposes of the quality improvement and medical
malpractice prevention program or who, in substantial good faith,
participates on the quality improvement committee shall not be subject
to an action for civil damages or other relief as a result of such
activity.
(3) Information and documents, including complaints and incident
reports, created specifically for, and collected, and maintained by a
quality improvement committee are not subject to discovery or
introduction into evidence in any civil action, and no person who was
in attendance at a meeting of such committee or who participated in the
creation, collection, or maintenance of information or documents
specifically for the committee shall be permitted or required to
testify in any civil action as to the content of such proceedings or
the documents and information prepared specifically for the committee.
This subsection does not preclude: (a) In any civil action, the
discovery of the identity of persons involved in the medical care that
is the basis of the civil action whose involvement was independent of
any quality improvement activity; (b) in any civil action, the
testimony of any person concerning the facts which form the basis for
the institution of such proceedings of which the person had personal
knowledge acquired independently of such proceedings; (c) in any civil
action by a health care provider regarding the restriction or
revocation of that individual's clinical or staff privileges,
introduction into evidence information collected and maintained by
quality improvement committees regarding such health care provider; (d)
in any civil action, disclosure of the fact that staff privileges were
terminated or restricted, including the specific restrictions imposed,
if any and the reasons for the restrictions; or (e) in any civil
action, discovery and introduction into evidence of the patient's
medical records required by regulation of the department of health to
be made regarding the care and treatment received.
(4) Each quality improvement committee shall, on at least a
semiannual basis, report to the governing board of the hospital in
which the committee is located. The report shall review the quality
improvement activities conducted by the committee, and any actions
taken as a result of those activities.
(5) The department of health shall adopt such rules as are deemed
appropriate to effectuate the purposes of this section.
(6) The medical quality assurance commission or the board of
osteopathic medicine and surgery, as appropriate, may review and audit
the records of committee decisions in which a physician's privileges
are terminated or restricted. Each hospital shall produce and make
accessible to the commission or board the appropriate records and
otherwise facilitate the review and audit. Information so gained shall
not be subject to the discovery process and confidentiality shall be
respected as required by subsection (3) of this section. Failure of a
hospital to comply with this subsection is punishable by a civil
penalty not to exceed two hundred fifty dollars.
(7) The department, the joint commission on accreditation of health
care organizations, and any other accrediting organization may review
and audit the records of a quality improvement committee or peer review
committee in connection with their inspection and review of hospitals.
Information so obtained shall not be subject to the discovery process,
and confidentiality shall be respected as required by subsection (3) of
this section. Each hospital shall produce and make accessible to the
department the appropriate records and otherwise facilitate the review
and audit.
(8) A coordinated quality improvement program may share information
and documents, including complaints and incident reports, created
specifically for, and collected and maintained by a quality improvement
committee or a peer review committee under RCW 4.24.250 with one or
more other coordinated quality improvement programs maintained in
accordance with this section or with RCW 43.70.510, for the improvement
of the quality of health care services rendered to patients and the
identification and prevention of medical malpractice. Information and
documents disclosed by one coordinated quality improvement program to
another coordinated quality improvement program and any information and
documents created or maintained as a result of the sharing of
information and documents shall not be subject to the discovery process
and confidentiality shall be respected as required by subsection (3) of
this section and RCW 4.24.250.
(9) Violation of this section shall not be considered negligence
per se.
Sec. 416 RCW 43.70.110 and 1993 sp.s. c 24 s 918 are each amended
to read as follows:
(1) The secretary shall charge fees to the licensee for obtaining
a license. After June 30, 1995, municipal corporations providing
emergency medical care and transportation services pursuant to chapter
18.73 RCW shall be exempt from such fees, provided that such other
emergency services shall only be charged for their pro rata share of
the cost of licensure and inspection, if appropriate. The secretary
may waive the fees when, in the discretion of the secretary, the fees
would not be in the best interest of public health and safety, or when
the fees would be to the financial disadvantage of the state.
(2) Except as provided in section 418 of this act, fees charged
shall be based on, but shall not exceed, the cost to the department for
the licensure of the activity or class of activities and may include
costs of necessary inspection.
(3) Department of health advisory committees may review fees
established by the secretary for licenses and comment upon the
appropriateness of the level of such fees.
Sec. 417 RCW 43.70.250 and 1996 c 191 s 1 are each amended to
read as follows:
It shall be the policy of the state of Washington that the cost of
each professional, occupational, or business licensing program be fully
borne by the members of that profession, occupation, or business. The
secretary shall from time to time establish the amount of all
application fees, license fees, registration fees, examination fees,
permit fees, renewal fees, and any other fee associated with licensing
or regulation of professions, occupations, or businesses administered
by the department. In fixing ((said)) such fees, the secretary shall
set the fees for each program at a sufficient level to defray the costs
of administering that program and the patient safety fee established in
section 418 of this act. All such fees shall be fixed by rule adopted
by the secretary in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
NEW SECTION. Sec. 418 A new section is added to chapter 43.70
RCW to read as follows:
(1) The secretary shall increase the licensing fee established
under RCW 43.70.110 by two dollars per year for the health care
professionals designated in subsection (2) of this section and by two
dollars per licensed bed per year for the health care facilities
designated in subsection (2) of this section. Proceeds of the patient
safety fee must be deposited into the patient safety account in section
422 of this act and dedicated to patient safety and medical error
reduction efforts that have been proven to improve, or have a
substantial likelihood of improving, the quality of care provided by
health care professionals and facilities.
(2) Health care professionals and facilities subject to the one
percent patient safety fee are:
(a) The following health care professionals licensed under Title 18
RCW:
(i) Advanced registered nurse practitioners, registered nurses, and
licensed practical nurses licensed under chapter 18.79 RCW;
(ii) Chiropractors licensed under chapter 18.25 RCW;
(iii) Dentists licensed under chapter 18.32 RCW;
(iv) Midwives licensed under chapter 18.50 RCW;
(v) Naturopaths licensed under chapter 18.36A RCW;
(vi) Nursing home administrators licensed under chapter 18.52 RCW;
(vii) Optometrists licensed under chapter 18.53 RCW;
(viii) Osteopathic physicians licensed under chapter 18.57 RCW;
(ix) Osteopathic physicians' assistants licensed under chapter
18.57A RCW;
(x) Pharmacists and pharmacies licensed under chapter 18.64 RCW;
(xi) Physicians licensed under chapter 18.71 RCW;
(xii) Physician assistants licensed under chapter 18.71A RCW;
(xiii) Podiatrists licensed under chapter 18.22 RCW; and
(xiv) Psychologists licensed under chapter 18.83 RCW; and
(b) Hospitals licensed under chapter 70.41 RCW and psychiatric
hospitals licensed under chapter 71.12 RCW.
NEW SECTION. Sec. 419 A new section is added to chapter 7.70 RCW
to read as follows:
(1) One percent of the present value of the settlement or verdict
in any action for damages based upon injuries resulting from health
care shall be deducted from the settlement or verdict as a patient
safety set aside. Proceeds of the patient safety set aside shall be
distributed by the department of health in the form of grants, loans,
or other appropriate arrangements to support strategies that have been
proven to reduce medical errors and enhance patient safety as provided
in section 418 of this act.
(2) Patient safety set asides shall be transmitted to the secretary
of the department of health for deposit into the patient safety account
established in section 422 of this act.
(3) The supreme court shall by rule adopt procedures to implement
this section.
NEW SECTION. Sec. 420 A new section is added to chapter 43.70
RCW to read as follows:
(1) Patient safety fee and set aside proceeds shall be administered
by the department, after seeking input from health care providers
engaged in direct patient care activities, health care facilities, and
other interested parties. In developing criteria for the award of
grants, loans, or other appropriate arrangements under this section,
the department shall rely primarily upon evidence-based practices to
improve patient safety that have been identified and recommended by
governmental and private organizations, including, but not limited to:
(a) The federal agency for health care quality and research;
(b) The federal institute of medicine;
(c) The joint commission on accreditation of health care
organizations; and
(d) The national quality forum.
(2) Projects that have been proven to reduce medical errors and
enhance patient safety shall receive priority for funding over those
that are not proven, but have a substantial likelihood of reducing
medical errors and enhancing patient safety. All project proposals
must include specific performance and outcome measures by which to
evaluate the effectiveness of the project. Project proposals that do
not propose to use a proven patient safety strategy must include, in
addition to performance and outcome measures, a detailed description of
the anticipated outcomes of the project based upon any available
related research and the steps for achieving those outcomes.
(3) The department may use a portion of the patient safety fee
proceeds for the costs of administering the program.
NEW SECTION. Sec. 421 A new section is added to chapter 43.70
RCW to read as follows:
The secretary may solicit and accept grants or other funds from
public and private sources to support patient safety and medical error
reduction efforts under this act. Any grants or funds received may be
used to enhance these activities as long as program standards
established by the secretary are maintained.
NEW SECTION. Sec. 422 A new section is added to chapter 43.70
RCW to read as follows:
The patient safety account is created in the custody of the state
treasurer. All receipts from contributions authorized in sections 418
and 419 of this act must be deposited into the account. Expenditures
from the account may be used only for the purposes of this act. Only
the secretary or the secretary's designee may authorize expenditures
from the account. The account is subject to allotment procedures under
chapter 43.88 RCW, but an appropriation is not required for
expenditures.
NEW SECTION. Sec. 423 A new section is added to chapter 43.70
RCW to read as follows:
By December 1, 2007, the department shall report the following
information to the governor and the health policy and fiscal committees
of the legislature:
(1) The amount of patient safety fees and set asides deposited to
date in the patient safety account;
(2) The criteria for distribution of grants, loans, or other
appropriate arrangements under this act; and
(3) A description of the medical error reduction and patient safety
grants and loans distributed to date, including the stated performance
measures, activities, timelines, and detailed information regarding
outcomes for each project.
NEW SECTION. Sec. 424 It is the intent of the legislature by
enacting sections 425 and 426 of this act that health care providers
should remain personally liable for their own negligent or wrongful
acts or omissions in connection with the provision of health care
services, but that their vicarious liability for the negligent or
wrongful acts or omissions of others should be curtailed. To that end,
it is the intent of the legislature that Adamski v. Tacoma General
Hospital, 20 Wn. App. 98, 579 P.2d 970 (1978), and its holding that
hospitals may be held liable for a physician's acts or omissions under
so-called "apparent agency" or "ostensible agency" theories should be
reversed, so that hospitals will not be liable for the act or omission
of a health care provider granted hospital privileges unless the health
care provider is an actual agent or employee of the hospital. It is
further the intent of the legislature that, notwithstanding any
generally applicable principle of vicarious liability to the contrary,
individual health care professionals will not be liable for the
negligent or wrongful acts of others, except those who were acting
under their direct supervision and control.
NEW SECTION. Sec. 425 A new section is added to chapter 7.70 RCW
to read as follows:
A public or private hospital shall be liable for an act or omission
of a health care provider granted privileges to provide health care at
the hospital only if the health care provider is an actual agent or
employee of the hospital and the act or omission of the health care
provider occurred while the health care provider was acting within the
course and scope of the health care provider's agency or employment
with the hospital.
NEW SECTION. Sec. 426 A new section is added to chapter 7.70 RCW
to read as follows:
A person who is a health care provider under RCW 7.70.020 (1) or
(2) shall not be personally liable for any act or omission of any other
health care provider who was not the person's actual agent or employee
or who was not acting under the person's direct supervision and control
at the time of the act or omission.
NEW SECTION. Sec. 427 Unless otherwise provided in sections 401
through 412 of this act, sections 401 through 412 of this act apply to
all causes of action filed on or after the effective date of this
section.
Sec. 501 RCW 51.24.035 and 1987 c 212 s 1801 are each amended to
read as follows:
(1) Notwithstanding RCW 51.24.030(1), the injured worker or
beneficiary may not seek damages ((against a design professional who is
a third person and who has been retained to perform professional
services on a construction project, or any employee of a design
professional who is assisting or representing the design professional
in the performance of professional services on the site of the
construction project, unless responsibility for safety practices is
specifically assumed by contract, the provisions of which were mutually
negotiated, or the design professional actually exercised control over
the portion of the premises where the worker was injured)) for an
injury or occupational disease occurring in the course of employment at
the site of a construction project, whether accomplished by a single
contract or by multiple contracts, against the owner or developer of
the project or against any person or entity performing work, furnishing
materials, or providing services to or for the construction project
including, but not limited to, design professionals, construction
managers, general or prime contractors, suppliers, subcontractors of
any tier, and any employee of a design professional, construction
manager, general or prime contractor, supplier, or subcontractor of any
tier.
(2) The immunity provided by this section does not extend to any
person or entity who injures a worker by deliberate intention as
defined in RCW 51.24.020, and it is against public policy to seek
indemnification in construction contracts against such liability. Such
contractual clauses are void and unenforceable.
(3) The immunity provided by this section does not extend to
manufacturers and product sellers for product liability actions as
defined in chapter 7.72 RCW.
(4) The immunity provided by this section does not apply to the
negligent preparation of design plans and specifications by a design
professional.
(((3))) (5) For the purposes of this section, "design professional"
means an architect, professional engineer, land surveyor, or landscape
architect, who is licensed or authorized by law to practice such
profession, or any corporation organized under chapter 18.100 RCW or
authorized under RCW 18.08.420 or 18.43.130 to render design services
through the practice of one or more of such professions.
Sec. 502 RCW 4.16.300 and 1986 c 305 s 703 are each amended to
read as follows:
RCW 4.16.300 through 4.16.320 shall apply to all claims or causes
of action of any kind against any person, arising from such person
having constructed, altered or repaired any improvement upon real
property, or having performed or furnished any design, planning,
surveying, architectural or construction or engineering services, or
supervision or observation of construction, or administration of
construction contracts for any construction, alteration or repair of
any improvement upon real property. This section is specifically
intended to benefit ((only those persons referenced herein)) persons
having performed work for which the persons must be registered or
licensed under RCW 18.08.310, 18.27.020, 18.43.040, 18.96.020, or
19.28.041, and shall not apply to claims or causes of action against
((manufacturers)) persons not required to be so registered or licensed.
Sec. 601 RCW 46.61.688 and 2003 c 353 s 4 are each amended to
read as follows:
(1) For the purposes of this section, the term "motor vehicle"
includes:
(a) "Buses," meaning motor vehicles with motive power, except
trailers, designed to carry more than ten passengers;
(b) "Multipurpose passenger vehicles," meaning motor vehicles with
motive power, except trailers, designed to carry ten persons or less
that are constructed either on a truck chassis or with special features
for occasional off-road operation;
(c) "Neighborhood electric vehicle," meaning a self-propelled,
electrically powered four-wheeled motor vehicle whose speed attainable
in one mile is more than twenty miles per hour and not more than
twenty-five miles per hour and conforms to federal regulations under
Title 49 C.F.R. Part 571.500;
(d) "Passenger cars," meaning motor vehicles with motive power,
except multipurpose passenger vehicles, motorcycles, or trailers,
designed for carrying ten passengers or less; and
(e) "Trucks," meaning motor vehicles with motive power, except
trailers, designed primarily for the transportation of property.
(2) This section only applies to motor vehicles that meet the
manual seat belt safety standards as set forth in federal motor vehicle
safety standard 208 and to neighborhood electric vehicles. This
section does not apply to a vehicle occupant for whom no safety belt is
available when all designated seating positions as required by federal
motor vehicle safety standard 208 are occupied.
(3) Every person sixteen years of age or older operating or riding
in a motor vehicle shall wear the safety belt assembly in a properly
adjusted and securely fastened manner.
(4) No person may operate a motor vehicle unless all child
passengers under the age of sixteen years are either: (a) Wearing a
safety belt assembly or (b) are securely fastened into an approved
child restraint device.
(5) A person violating this section shall be issued a notice of
traffic infraction under chapter 46.63 RCW. A finding that a person
has committed a traffic infraction under this section shall be
contained in the driver's abstract but shall not be available to
insurance companies or employers.
(6) Failure to comply with ((the)) any requirements of this section
((does not constitute negligence, nor may failure to wear a safety belt
assembly)) may be admissible as evidence of negligence in any civil
action.
(7) This section does not apply to an operator or passenger who
possesses written verification from a licensed physician that the
operator or passenger is unable to wear a safety belt for physical or
medical reasons.
(8) The state patrol may adopt rules exempting operators or
occupants of farm vehicles, construction equipment, and vehicles that
are required to make frequent stops from the requirement of wearing
safety belts.
NEW SECTION. Sec.701 While the common law doctrine of sovereign
immunity declares that the state is immune from liability for the
tortious conduct of its employees and officers, Article II, section 26
of the state Constitution allows the legislature to waive its immunity
and specify by statute "in what manner, and in what courts, suit may be
brought against the state." In the granting or withholding of
sovereign immunity, there are limitations, gradations, and competing
interests to be balanced by the legislature, including fairness to the
citizens of the state, the preservation of proper and essential
functions of government, and the conservation of scarce public
resources.
In balancing these competing interests, the legislature must also
balance the traditional role of the jury in determining damages in
civil cases and the legislature's constitutional mandate under Article
VIII, section 4 of the state Constitution to protect the state treasury
through the appropriation process.
The legislature finds that these constitutional principles are not
adequately served by either complete sovereign immunity or the complete
waiver of sovereign immunity. Pursuant to the express authority of
Article II, section 26 of the state Constitution, the purpose of
sections 701 through 707 of this act is to recognize and implement
these fundamental constitutional principles while providing a fair and
equitable means of recovery against governmental entities for the
negligent acts of their employees and officers.
The legislature further finds that government agencies administer
programs, in the exercise of their constitutional, statutory, and moral
obligations, that inherently create a significant risk of tort
liability in the absence of sovereign immunity. This potential
liability is unique to the governmental function. As a result, state
and local governments are not similarly situated to individual and
private organizations, who are not under legal or moral obligations to
provide for the public health, safety, and welfare. For these reasons,
the legislature finds it necessary and appropriate to distinguish
between the civil liability of private entities and governmental
agencies.
Sec. 702 RCW 4.92.005 and 1985 c 217 s 6 are each amended to read
as follows:
For the purposes of RCW 4.92.060, 4.92.070, 4.92.090, 4.92.130,
((4.92.140,)) and 4.92.150, volunteer is defined in RCW 51.12.035.
Sec. 703 RCW 4.96.010 and 2001 c 119 s 1 are each amended to read
as follows:
(1) All local governmental entities, whether acting in a
governmental or proprietary capacity, shall be liable for damages
arising out of their tortious conduct, or the tortious conduct of their
past or present officers, employees, or volunteers while performing or
in good faith purporting to perform their official duties, to the same
extent as if they were a private person or corporation, subject to the
limitations provided in subsection (2) of this section. Filing a claim
for damages within the time allowed by law shall be a condition
precedent to the commencement of any action claiming damages. The laws
specifying the content for such claims shall be liberally construed so
that substantial compliance therewith will be deemed satisfactory.
(2)(a) Neither local government entities, nor their officers,
employees, or volunteers are liable to pay a claim or a judgment for
noneconomic damages as defined in RCW 4.56.250 by any one person that
exceeds the sum of one million dollars or any claim or judgment, or
portions thereof, that, when totaled with all other claims or judgments
paid by the local government entities, officers, employees, or
volunteers arising out of the same incident or occurrence, exceeds the
sum of two million dollars. However, a judgment or judgments may be
claimed and rendered in excess of these amounts and may be settled and
paid under this section up to one million dollars or two million
dollars, as the case may be, and that portion of the judgment that
exceeds these amounts may be reported to the local legislative
authority, but may be paid in part or in whole only by further act of
the local legislative authority. Notwithstanding the limited waiver of
sovereign immunity provided in this section, the local government
entities, officers, employees, or volunteers may agree, within the
limits of insurance coverage provided, to settle a claim made or a
judgment rendered against it without further action by the local
legislative authority, but the local government entities, officers,
employees, or volunteers have not waived any defense of sovereign
immunity or increased the limits of its liability as a result of its
obtaining insurance coverage for tortious acts in excess of the waiver
provided in this section.
(b) The liability of the local government entities, officers,
employees, or volunteers is several only and is not joint.
(c) No attorney may charge, demand, receive, or collect, for
services rendered, fees in excess of twenty-five percent of any
judgment or settlement under this section.
(d) Subsection (2)(a) of this section does not apply in cases in
which the local government entity or its officers, employees, or
volunteers are held liable for civil damages resulting from any
negligent act or omission in the rendering of community placement,
community supervision, community custody, parole supervision, probation
supervision, or supervision of suspended sentences if (i) the offender
under supervision has ever been convicted of the crime of first or
second degree rape, first or second degree rape of a child, or first or
second degree homicide, and (ii) the civil damages resulted from the
subsequent commission of one of these specified offenses.
(3) Unless the context clearly requires otherwise, for the purposes
of this chapter, "local governmental entity" means a county, city,
town, special district, municipal corporation as defined in RCW
39.50.010, quasi- municipal corporation, or public hospital.
(((3))) (4) For the purposes of this chapter, "volunteer" is
defined according to RCW 51.12.035.
Sec. 704 RCW 4.92.040 and 2002 c 332 s 11 are each amended to
read as follows:
(1) No execution shall issue against the state on any judgment.
(2) Whenever a final judgment against the state is obtained in an
action on a claim arising out of tortious conduct, the claim shall be
paid from the liability account, subject to the limitations of RCW
4.92.090.
(3) Whenever a final judgment against the state shall have been
obtained in any other action, the clerk of the court shall make and
furnish to the risk management division a duly certified copy of such
judgment; the risk management division shall thereupon audit the amount
of damages and costs therein awarded, and the same shall be paid from
appropriations specifically provided for such purposes by law.
(4) Final judgments for which there are no provisions in state law
for payment shall be transmitted by the risk management division to the
senate and house of representatives committees on ways and means as
follows:
(a) On the first day of each session of the legislature, the risk
management division shall transmit judgments received and audited since
the adjournment of the previous session of the legislature.
(b) During each session of legislature, the risk management
division shall transmit judgments immediately upon completion of audit.
(5) All claims, other than judgments, made to the legislature
against the state of Washington for money or property, shall be
accompanied by a statement of the facts on which such claim is based
and such evidence as the claimant intends to offer in support of the
claim and shall be filed with the risk management division, which shall
retain the same as a record. All claims of two thousand dollars or
less shall be approved or rejected by the risk management division, and
if approved shall be paid from appropriations specifically provided for
such purpose by law. Such decision, if adverse to the claimant in
whole or part, shall not preclude the claimant from seeking relief from
the legislature. If the claimant accepts any part of his or her claim
which is approved for payment by the risk management division, such
acceptance shall constitute a waiver and release of the state from any
further claims relating to the damage or injury asserted in the claim
so accepted. The risk management division shall submit to the house
and senate committees on ways and means, at the beginning of each
regular session, a comprehensive list of all claims paid pursuant to
this subsection during the preceding year. For all claims not approved
by the risk management division, the risk management division shall
recommend to the legislature whether such claims should be approved or
rejected. Recommendations shall be submitted to the senate and house
of representatives committees on ways and means not later than the
thirtieth day of each regular session of the legislature. Claims which
cannot be processed for timely submission of recommendations shall be
held for submission during the following regular session of the
legislature. The recommendations shall include, but not be limited to:
(a) A summary of the facts alleged in the claim, and a statement as
to whether these facts can be verified by the risk management division;
(b) An estimate by the risk management division of the value of the
loss or damage which was alleged to have occurred;
(c) An analysis of the legal liability, if any, of the state for
the alleged loss or damage; and
(d) A summary of equitable or public policy arguments which might
be helpful in resolving the claim.
(6) The legislative committees to whom such claims are referred
shall make a transcript, recording, or statement of the substance of
the evidence given in support of such a claim. If the legislature
approves a claim the same shall be paid from appropriations
specifically provided for such purpose by law.
(7) Subsections (3) through (6) of this section do not apply to
judgments or claims against the state housing finance commission
created under chapter 43.180 RCW.
Sec. 705 RCW 4.92.090 and 1963 c 159 s 2 are each amended to read
as follows:
The state of Washington, whether acting in its governmental or
proprietary capacity, shall be liable for damages arising out of its
tortious conduct to the same extent as if it were a private person or
corporation, subject to the limitations provided in this section.
(1) Neither the state nor its agencies, institutions, officers,
employees, or volunteers are liable to pay a claim or a judgment for
noneconomic damages as defined in RCW 4.56.250 by any one person that
exceeds the sum of one million dollars or any claim or judgment, or
portions thereof, that, when totaled with all other claims or judgments
paid by the state or its agencies, institutions, officers, employees,
or volunteers arising out of the same incident or occurrence, exceeds
the sum of two million dollars. However, a judgment or judgments may
be claimed and rendered in excess of these amounts and may be settled
and paid under this section up to one million dollars or two million
dollars, as the case may be, and that portion of the judgment that
exceeds these amounts may be reported to the legislature, but may be
paid in part or in whole only by further act of the legislature.
Notwithstanding the limited waiver of sovereign immunity provided in
this section, the state or an agency, institution, or any officer,
employee, or volunteer may agree, within the limits of insurance
coverage provided, to settle a claim made or a judgment rendered
against it without further action by the legislature, but the state or
agency has not waived any defense of sovereign immunity or increased
the limits of its liability as a result of its obtaining insurance
coverage for tortious acts in excess of the waiver provided in this
section.
(2) The liability of the state, its agencies, and institutions is
several only and is not joint.
(3) No attorney may charge, demand, receive, or collect, for
services rendered, fees in excess of twenty-five percent of any
judgment or settlement under this section.
(4) Subsection (1) of this section does not apply in cases in which
the state or its agencies, institutions, officers, employees, or
volunteers are held liable for civil damages resulting from any
negligent act or omission in the rendering of community placement,
community supervision, community custody, parole supervision, probation
supervision, or supervision of suspended sentences if (a) the offender
under supervision has ever been convicted of the crime of first or
second degree rape, first or second degree rape of a child, or first or
second degree homicide, and (b) the civil damages resulted from the
subsequent commission of one of these specified offenses.
Sec. 706 RCW 4.92.130 and 2002 c 332 s 14 are each amended to
read as follows:
A liability account in the custody of the treasurer is hereby
created as a nonappropriated account to be used solely and exclusively
for the payment of liability settlements and judgments against the
state under 42 U.S.C. Sec. 1981 et seq. or for the tortious conduct of
its officers, employees, and volunteers and all related legal defense
costs. Legislative appropriation is required for expenditures from the
liability account to the extent specified in RCW 4.92.090.
(1) The purpose of the liability account is to: (a) Expeditiously
pay legal liabilities and defense costs of the state resulting from
tortious conduct; (b) promote risk control through a cost allocation
system which recognizes agency loss experience, levels of self-retention, and levels of risk exposure; and (c) establish an
actuarially sound system to pay incurred losses, within defined limits.
(2) The liability account shall be used to pay claims for injury
and property damages and legal defense costs exclusive of agency-retained expenses otherwise budgeted.
(3) No money shall be paid from the liability account, except for
defense costs, unless all proceeds available to the claimant from any
valid and collectible liability insurance shall have been exhausted and
unless:
(a) The claim shall have been reduced to final judgment in a court
of competent jurisdiction and legislative appropriation has been made
to the extent required by RCW 4.92.090; or
(b) The claim has been approved for payment.
(4) The liability account shall be financed through annual premiums
assessed to state agencies, based on sound actuarial principles, and
shall be for liability coverage in excess of agency-budgeted self-retention levels.
(5) Annual premium levels shall be determined by the risk manager,
with the consultation and advice of the risk management advisory
committee. An actuarial study shall be conducted to assist in
determining the appropriate level of funding.
(6) Disbursements for claims from the liability account shall be
made to the claimant, or to the clerk of the court for judgments, upon
written request to the state treasurer from the risk manager.
(7) The director may direct agencies to transfer moneys from other
funds and accounts to the liability account if premiums are delinquent.
(8) The liability account shall not exceed fifty percent of the
actuarial value of the outstanding liability as determined annually by
the risk management division. If the account exceeds the maximum
amount specified in this section, premiums may be adjusted by the risk
management division in order to maintain the account balance at the
maximum limits. If, after adjustment of premiums, the account balance
remains above the limits specified, the excess amount shall be prorated
back to the appropriate funds.
NEW SECTION. Sec. 707 Sections 701 through 706 of this act apply
to all claims that have not been reduced to judgment on the effective
date of this section.
NEW SECTION. Sec. 801 A new section is added to chapter 4.24 RCW
to read as follows:
(1) A certificate of merit shall be filed by the claimant's
attorney as specified in subsection (2) of this section within ninety
days of filing or service, whichever occurs later, of any action
asserting a claim, cross-claim, counter-claim, or third party claim for
damages arising out of: The failure to comply with the standard of
care by a person licensed, registered, or certified under Title 18 RCW;
the negligence of a health care facility as defined in RCW 48.43.005;
or a product liability claim under chapter 7.72 RCW. The court may,
for good cause shown, extend the period of time within which filing of
the certificate is required. In no event shall the period of time for
filing the certificate of merit exceed one hundred twenty days from the
date of filing or service, whichever occurs later.
(2) The certificate filed by the claimant's attorney shall consist
of the declaration of a qualified expert. The declaration shall
include:
(a) The name, address, and credentials of claimant's expert;
(b) The expert's statement that the expert has reviewed the facts
of the case, is knowledgeable of the relevant issues involved, and who:
(i) Holds a license, certificate, or registration issued by this
state or another state in the same profession as that of the person
against whom the claim is filed, and who practices in the same
specialty or subspecialty as the person against whom the claim is
filed; or
(ii) Has expertise in those areas requiring expert testimony in a
product liability claim or in an action against a health care facility;
(c) The expert's statement of willingness and availability to
testify to admissible facts, standard of care, or opinions regarding
the case; and
(d) The expert's statement that on the basis of preliminary review
and consultation, that there is reasonable and meritorious cause for
the filing of the action.
(3) Where a certificate is required under this section, and where
there are claims against multiple persons or entities, separate
certificates must be filed for each party qualified under subsection
(1) of this section. As appropriate, the same expert may file multiple
declarations provided that each declaration meets the requirements of
subsection (2) of this section.
(4) Persons identified in subsection (1) of this section against
whom a claim has been asserted are not required to file an answer to
that claim until thirty days after filing the certificate required in
subsection (2) of this section.
(5) The provisions of this section are not applicable to a pro se
claimant until such a time as an attorney appears on the claimant's
behalf.
(6) A violation of this section is grounds for dismissal of the
action; and a court of competent jurisdiction may sanction the claimant
or the claimant's attorney for violating this section.
NEW SECTION. Sec. 802 Section 801 of this act applies to all
actions for damages filed on or after July 1, 2004.
NEW SECTION. Sec. 901 A new section is added to chapter 7.70 RCW
to read as follows:
In a products liability action alleging that an injury was caused
by a failure to provide adequate warnings or information with regard to
a pharmaceutical product, the defendant or defendants shall not be
liable with respect to such allegations if the warnings or information
that accompanied the product in its distribution were those required by
the United States food and drug administration for a product approved
pursuant to the federal food, drug, and cosmetic act (21 U.S.C. Sec.
321, et seq.) or section 351 of the public health service act (42
U.S.C. Sec. 262), or the warnings provided were those set forth in
monographs developed by the United States food and drug administration
for pharmaceutical products that may be distributed without an approved
new drug application.
NEW SECTION. Sec. 1001 A new section is added to chapter 7.72
RCW to read as follows:
A manufacturer of goods is not liable for harm caused by defects in
goods attributed to such a manufacturer where the goods have been
purchased through a chain of distribution that does not establish the
manufacturer as the lawful source of the defective product. This
section does not apply where the harm is caused by:
(1) Willful or wanton acts of negligence by the manufacturer;
(2) Conscious indifference or reckless disregard for the safety of
others by the manufacturer; or
(3) Intentional conduct on the part of the manufacturer.
NEW SECTION. Sec. 1101 A new section is added to chapter 7.72
RCW to read as follows:
(1) Any manufacturer, distributor, or seller of a food or
nonalcoholic beverage intended for human consumption shall not be
subject to civil liability for personal injury or wrongful death based
on an individual's consumption of food or nonalcoholic beverages in
cases where liability is premised upon the individual's weight gain,
obesity, or a health condition related to weight gain or obesity and
resulting from the individual's long-term consumption of a food or
nonalcoholic beverage.
(2) For the purposes of this section, the term "long-term
consumption" means the cumulative effect of the consumption of food or
nonalcoholic beverages, and not the effect of a single instance of
consumption.
NEW SECTION. Sec. 1201 Part headings used in this act are not
any part of the law.
NEW SECTION. Sec. 1202 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.