BILL REQ. #:  H-4400.1 

Read first time 01/23/2006.   Referred to Committee on Judiciary.

     AN ACT Relating to actions for injuries resulting from health care; amending RCW 4.22.070 and 7.70.070; adding a new section to chapter 4.56 RCW; and adding a new section to chapter 43.70 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 4.56 RCW to read as follows:
     (1)(a) In an action or arbitration for damages for injury or death occurring as a result of providing health care, or arranging for the provision of health care, whether brought under chapter 7.70, 4.20, or 4.24 RCW, or any other applicable law, the total amount of noneconomic damages that may be awarded to the claimant shall not exceed one million dollars unless the injury or death resulted from an act or omission that constituted gross negligence, or that was reckless, willful or wanton, or intentional, in which case there is no limitation on the amount of noneconomic damages that may be awarded to the claimant.
     (b) In an action involving more than one defendant where at least one defendant's acts or omissions are found to be negligent, and at least one defendant's acts or omissions are found to be grossly negligent, reckless, willful or wanton, or intentional:
     (i) The amount of noneconomic damages that may be awarded to the claimant from the judgment against a defendant whose acts or omissions constituted simple negligence are limited to the amount specified in subsection (1) of this section; and
     (ii) There is no limitation on the amount of noneconomic damages that may be awarded to the claimant from the judgment entered against a defendant whose acts or omissions constituted gross negligence, or were reckless, willful or wanton, or intentional.
     (2) If the jury's assessment of noneconomic damages that are attributable to a negligent defendant exceeds the amount that may be awarded under subsection (1) of this section, the court shall enter a judgment that:
     (a) Limits the claimant's award of noneconomic damages from the negligent defendant to the amount specified in subsection (1) of this section; and
     (b) Requires the negligent defendant to pay the amount of the jury's assessment of noneconomic damages attributable to the negligent defendant that is in excess of the limitation in subsection (1) of this section to the court for deposit into the indigent emergency medical care account established in section 2 of this act.

NEW SECTION.  Sec. 2   A new section is added to chapter 43.70 RCW to read as follows:
     The indigent emergency medical care account is created in the custody of the state treasurer. The account shall receive deposits of excess awards of noneconomic damages as provided in section 1 of this act. Disbursements from the account shall be made by the department subject to legislative appropriation. Expenditures from the account may be used only to provide grants to health care facilities that provide emergency room health care services. The department shall distribute the funds under a formula that provides a relatively larger share of the available funding to health care facilities that serve a disproportionate share of low-income and medically indigent patients with emergency room health care services. Any residue in the account shall accumulate in the account and shall not revert to the general fund at the end of the biennium. Costs incurred by the department in administering the account shall be paid from the account.

Sec. 3   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 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 who have been released by 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) 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.
     (b)(i) Except as provided in (b)(ii) of this subsection, 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])) claimant's total damages.
     (ii) Subsection (1)(b)(i) of this section does not apply to health care providers as defined in RCW 7.70.020, in an action or arbitration for damages for injury or death occurring as a result of providing health care, or arranging for the provision of health care, whether brought under chapter 7.70, 4.20, or 4.24 RCW, or any other applicable law, with respect to judgments for noneconomic damages. In such an action or arbitration, the liability of health care providers for noneconomic damages is several only. For the purposes of this section, "noneconomic damages" has the meaning given in RCW 4.56.250.
     (2) If a defendant is jointly and severally liable under one of the exceptions listed in subsections (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. 4   RCW 7.70.070 and 1975-'76 2nd ex.s. c 56 s 12 are each amended to read as follows:
     (1) Except as provided 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 for injury or death occurring as a result of providing health care or related services, or the arranging for the provision of health care or related services, that exceeds twenty percent of the amount recovered.
     (b) The limitation in this subsection (2) applies whether the recovery is by judgment, settlement, arbitration, mediation, or other form of alternative dispute resolution.
     (c) For purposes of this subsection (2), "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with the arbitration, litigation, or settlement of the claim. Costs of medical care incurred by the plaintiff and the attorney's office overhead costs or charges are not deductible disbursements or costs for such purposes.