BILL REQ. #:  H-1460.1 

Read first time 02/11/2005.   Referred to Committee on Judiciary.

     AN ACT Relating to prerequisites for filing an action for injury occurring as a result of health care; and adding a new section to chapter 7.70 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 7.70 RCW to read as follows:
     (1) No action for damages for injury occurring as a result of health care may be commenced against any health care provider unless the claimant (a) has given the health care provider at least ninety days' written notice of intent to file a claim, which includes a request to meet and discuss the claim, and (b) after the health care provider responds to the request to meet, has made an appointment to meet, and has met or has had a designated nonlawyer representative meet, with the health care provider or the health care provider's designated nonlawyer representative to discuss the nature and basis of the claim and the health care provider's response.
     (2) The claimant shall serve the written notice required under subsection (1) of this section on the health care provider by registered mail, return receipt requested, to the health care provider's professional business address or residential address.
     (3) The written notice required under subsection (1) of this section must be signed by the claimant and contain at least the following:
     (a) A description of the claimed injury or damage;
     (b) A description of the conduct and circumstances alleged to have brought about the claimed injury or damage;
     (c) The names of all persons involved, if known;
     (d) The names of all health care providers the claimant is notifying under this section in relation to the claim;
     (e) A request to meet with the health care provider or the health care provider's designated nonlawyer representative to discuss the claim; and
     (f) The address and telephone number where the claimant may be reached.
     With respect to the content of the notice of intent, this section shall be liberally construed so that substantial compliance shall be deemed satisfactory.
     (4) If the notice of intent required under subsection (1) of this section is served within ninety days before the expiration of the applicable statute of limitations, the time for commencement of the action shall be extended ninety days from the service of notice.
     (5) Any health care provider who receives a notice of intent to file a claim pursuant to this section shall, within twenty days of receipt of the notice of intent, respond to the request to meet by contacting, or having someone from the health care provider's office contact, the claimant to schedule the date, time, and place for the claimant, the claimant's designated nonlawyer representative, or both to meet with the health care provider, the health care provider's designated nonlawyer representative, or both. The contact may be made either by telephone or by certified mail, return receipt requested. Unless otherwise mutually agreed between the health care provider and the claimant, the meeting shall be scheduled to take place during normal business hours at the health care provider's professional business address on a date no later than seventy-five days after receipt of the notice of intent.
     (6) If contact with the claimant to schedule the meeting is made by telephone, the health care provider shall provide the claimant, by certified mail, return receipt requested, written confirmation of the date, time, and place of the scheduled meeting and, if the meeting will be with, or will include, the health care provider's designated nonlawyer representative, the name of that representative. If the claimant intends to have a designated nonlawyer representative attend the meeting with, or on behalf of, the claimant, the claimant shall, within ten days of receipt of the written confirmation, notify the health care provider by certified mail, return receipt requested, of the name of that representative.
     (7) If contact with the claimant to schedule the meeting is not made by telephone, the health care provider shall, within twenty days of receipt of the notice of intent, send the claimant by certified mail, return receipt requested, a response to the request to meet that contains at least five different dates and times that the health care provider, the health care provider's designated nonlawyer representative, if any, or both, can meet with the claimant. The written response shall also state the professional business address of the health care provider where the meeting will take place and, if the meeting will be with, or will include, the health care provider's designated nonlawyer representative, the name of that representative. The dates proposed in the written response shall be dates that fall between the fiftieth day and the seventy-fifth day after the notice of intent was received. No later than ten days following receipt of such written response, the claimant shall notify the health care provider in writing, by certified mail, return receipt requested, which of the dates proposed by the health care provider the claimant selects for the meeting to take place, and if a designated nonlawyer representative will be attending the meeting with, or on behalf of, the claimant, the name of that representative.
     (8) Lawyers, or agents, employees, or consultants of lawyers, for the claimant or the health care provider shall not attend the meeting required by this section. However, the claimant may designate a family member or other nonlawyer representative to attend the meeting with, or on behalf of, the claimant, and the health care provider may designate a nonlawyer representative to attend the meeting with, or on behalf of, the health care provider. A claimant or a health care provider who chooses to have a designated nonlawyer representative attend the meeting, shall provide advance notification of that intent in accordance with the provisions of subsections (6) and (7) of this section.
     (9) Any statements made by, and any discussions had between, the claimant and the health care provider or the health care provider's designated representative pursuant to this section, and any records made of any such statements or discussions, shall not be subject to discovery or introduction into evidence in any judicial or administrative proceeding, and no person who was in attendance at any meeting held pursuant to this section shall be permitted or required to testify as to the content of any statements made or discussions had, or any records of any such statements or discussions, at any such meeting. A notice of intent to file a claim and any response thereto also shall not be subject to discovery or introduction into evidence in any judicial or administrative proceeding except as needed to demonstrate compliance or noncompliance with the provisions of this section.
     (10) The provisions of this section do not apply with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified in the complaint by a fictitious name.
     (11) Any action for damages for injury occurring as a result of health care against a health care provider that is filed by a claimant who has failed to serve the health care provider with the notice of intent to file a claim, or who has failed to make an appointment to meet, as required by subsection (1) of this section, or who has failed to attend the meeting scheduled pursuant to subsection (6) or (7) of this section, shall be barred.
     (12) If a health care provider who receives a notice of claim pursuant to this section fails to respond to the request to meet as required by subsection (5) of this section, or fails to attend, or have a designated nonlawyer representative attend, the meeting scheduled pursuant to subsection (6) or (7) of this section, then the failure of the claimant to meet with the health care provider to discuss the claim shall not constitute a bar to the commencement of an action for injury occurring as a result of health care against that health care provider.
     (13) For purposes of this section, "claimant" means either (a) the patient receiving the health care upon which the claim is based; or (b) if the patient is incompetent, the person or persons authorized to consent to health care on behalf of the patient pursuant to RCW 7.70.065; or (c) if the patient is deceased, the person or persons entitled to bring a wrongful death or survival action.