BILL REQ. #: S-1842.2
| State of Washington | 59th Legislature | 2005 Regular Session |
Read first time 03/02/2005. Referred to Committee on Judiciary.
AN ACT Relating to civil liability reform; amending RCW 4.22.070, 4.22.015, 5.64.010, 4.56.250, 4.16.350, 7.70.100, 7.70.070, 43.70.110, 43.70.250, and 4.24.260; adding new sections to chapter 4.56 RCW; adding new sections to chapter 7.70 RCW; adding a new section to chapter 7.04 RCW; adding a new section to chapter 4.24 RCW; adding new sections to chapter 48.19 RCW; adding new sections to chapter 43.70 RCW; adding a new chapter to Title 48 RCW; adding a new chapter to Title 70 RCW; creating new sections; prescribing penalties; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 101 The department of health shall develop, in
consultation with the department of revenue, a program to provide
business and occupation tax credits for physicians who serve uninsured,
medicare, and medicaid patients in a private practice or a reduced fee
access program for the uninsured and shall submit proposed legislation
to the legislature by December 15, 2005.
Sec. 201 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. 202 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.
Sec. 203 RCW 5.64.010 and 1975-'76 2nd ex.s. c 56 s 3 are each
amended to read as follows:
(1) In any civil action against a health care provider for personal
injuries which is based upon alleged professional negligence ((and
which is against:)), or in any arbitration or mediation proceeding
related to such civil action, evidence of furnishing or offering or
promising to pay medical, hospital, or similar expenses occasioned by
an injury is not admissible ((
(1) A person licensed by this state to provide health care or
related services, including, but not limited to, a physician,
osteopathic physician, dentist, nurse, optometrist, podiatrist,
chiropractor, physical therapist, psychologist, pharmacist, optician,
physician's assistant, osteopathic physician's assistant, nurse
practitioner, or physician's trained mobile intensive care paramedic,
including, in the event such person is deceased, his estate or personal
representative;
(2) An employee or agent of a person described in subsection (1) of
this section, acting in the course and scope of his employment,
including, in the event such employee or agent is deceased, his estate
or personal representative; or
(3) An entity, whether or not incorporated, facility, or
institution employing one or more persons described in subsection (1)
of this section, including, but not limited to, a hospital, clinic,
health maintenance organization, or nursing home; or an officer,
director, employee, or agent thereof acting in the course and scope of
his employment, including, in the event such officer, director,
employee, or agent is deceased, his estate or personal
representative;to prove liability for the injury)).
(2) In a civil action against a health care provider for personal
injuries which is based upon alleged professional negligence, or in any
arbitration or mediation proceeding related to such civil action:
(a) Any and all statements, affirmations, gestures, or conduct
expressing apology, fault, sympathy, commiseration, condolence,
compassion, or a general sense of benevolence; or
(b) Any and all statements or affirmations regarding remedial
actions that may be taken to address the act or omission that is the
basis for the allegation of negligence;
which were in the past or are made by a health care provider to the
injured person, a relative of the injured person, or a representative
of the injured person and which relate to the discomfort, pain,
suffering, injury, or death of the injured person as the result of the
alleged professional negligence are not admissible as evidence.
(3) For the purposes of this section:
(a) "Health care provider" has the same meaning provided in RCW
7.70.020.
(b) "Relative" means:
(i) An injured person's spouse, parent, grandparent, stepfather,
stepmother, child, grandchild, brother, sister, half brother, half
sister, or spouse's parents;
(ii) Relationships in (b)(i) of this subsection that are
established with an injured person as a result of adoption; and
(iii) Any person who has a family-type relationship with an injured
person.
(c) "Representative" means a legal guardian, attorney, person
designated to make decisions on behalf of a patient under a medical
power of attorney, or any person recognized in law or custom as a
patient's agent.
Sec. 204 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. 205 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 one million 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.
NEW SECTION. Sec. 206 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 205 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. 207 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).
NEW SECTION. Sec. 208 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.
Sec. 209 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.
NEW SECTION. Sec. 210 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. 211 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. 212 Section 211 of this act applies to all
actions for damages filed on or after the effective date of this
section.
Sec. 213 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.
NEW SECTION. Sec. 301 A new section is added to chapter 48.19
RCW to read as follows:
(1) The insurance commissioner shall notify the public of any rate
filing by an insurer for a rate change affecting medical malpractice
that is less than fifteen percent of the then applicable rate. The
filing is approved forty-five days after public notice unless:
(a) A consumer or his or her representative requests a hearing
within thirty days of public notice and the commissioner grants the
hearing;
(b) The commissioner on his or her own motion determines to hold a
hearing; or
(c) The commissioner disapproves the filing.
(2) If the rate filing increase is fifteen percent or greater, the
commissioner shall order a public hearing. Any person shall have the
right to intervene and participate as a party or have the right to
comment at the public hearing.
(3) If rate hearings are commenced under subsection (1) or (2) of
this section, the applicant may not use the rates until the
commissioner approves the filing, either as originally submitted or as
amended, after the public hearing and consistent with the requirements
of this section.
(4) If a judicial proceeding directly involving the rate filing and
initiated by the insurer or an intervener begins, the commissioner has
thirty days after conclusion of the judicial proceedings to approve or
disapprove the rate filing. The commissioner may disapprove an
application without a hearing if a stay is in effect barring the
commissioner from holding a hearing.
(5) Upon a final determination of a disapproval or amendment of a
rate filing under this section, the insurer must issue an endorsement
changing the rate to comply with the commissioner's disapproval. The
endorsement is effective on the date the rate is no longer effective.
(6) The public notice required under subsections (1) and (2) of
this section must be made via distribution to the news media, posting
on the web site maintained by the commissioner, and by mail to any
member of the public who requests placement on a mailing list
maintained by the commissioner for this purpose.
(7) All medical malpractice insurance rate filings and related
material submitted to the commissioner by the insurer under this
section are available for public inspection pursuant to the public
disclosure act, chapter 42.17 RCW.
(8) Hearings and other administrative proceedings arising under
this section must be conducted under chapter 34.05 RCW.
NEW SECTION. Sec. 302 A new section is added to chapter 48.19
RCW to read as follows:
(1) With respect to administrative or legal proceedings authorized
by or arising under section 301 of this act, any person may:
(a) Initiate or intervene as a party, or comment in writing or in
person at any public hearing on the proceedings; or
(b) Challenge any action of the insurance commissioner.
(2) The commissioner or a court shall award reasonable advocacy and
witness fees and expenses to any person who demonstrates that:
(a) The person represents the interests of consumers; and
(b) The person made a substantial contribution to the adoption of
any order, rule, or decision by the commissioner or a court.
(3) When an award of fees or expenses under this section occurs in
a proceeding related to a rate application, the award must be paid by
the applicant.
NEW SECTION. Sec. 303 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Claim" means a demand for payment of a loss caused by medical
malpractice.
(a) Two or more claims, or a single claim naming multiple health
care providers or facilities, arising out of a single injury or
incident of medical malpractice is one claim.
(b) A series of related incidents of medical malpractice is one
claim.
(2) "Claimant" means a person filing a claim against a health care
provider or health care facility.
(3) "Closed claim" means a claim concluded with or without payment
and for which all administrative activity has been finalized by the
insuring entity or self-insurer.
(4) "Commissioner" means the insurance commissioner.
(5) "Health care facility" or "facility" means a clinic, diagnostic
center, hospital, laboratory, mental health center, nursing home,
office, surgical facility, treatment facility, or similar place where
a health care provider provides health care to patients.
(6) "Health care provider" or "provider" means a physician licensed
under chapter 18.71 RCW, an osteopathic physician licensed under
chapter 18.57 RCW, a podiatric physician licensed under chapter 18.22
RCW, a dentist licensed under chapter 18.32 RCW, a chiropractor
licensed under chapter 18.25 RCW, an advance registered nurse
practitioner licensed under chapter 18.79 RCW, a physician assistant
licensed under chapter 18.71A RCW, and a naturopath licensed under
chapter 18.36A RCW.
(7) "Insuring entity" means:
(a) An insurer;
(b) A joint underwriting association;
(c) A risk retention group; or
(d) An unauthorized insurer that provides surplus lines coverage.
(8) "Medical malpractice" means a negligent act, error, or omission
in providing or failing to provide professional health care services
that is actionable under chapter 7.70 RCW.
(9) "Self-insurer" means any health care provider, facility, or
other individual or entity that assumes operational or financial risk
for claims of medical malpractice.
NEW SECTION. Sec. 304 (1) Beginning April 1, 2006, every self-insurer or insuring entity that provides medical malpractice insurance
to any facility or provider in Washington state must report to the
commissioner any closed claim related to medical malpractice, if the
claim resulted in a final:
(a) Judgment in any amount;
(b) Settlement or payment in any amount; or
(c) Disposition of a medical malpractice claim resulting in no
indemnity payment on behalf of an insured.
(2) If a claim is not reported by an insuring entity or self-insurer under subsection (1) of this section due to limitations in the
medical malpractice coverage of a facility or provider, the facility or
provider must report the claim to the commissioner.
(3) Reports under this section must be filed with the commissioner
within sixty days after the claim is closed by the insuring entity or
self-insurer.
(4)(a) The commissioner may impose a fine of up to two hundred
fifty dollars per day per case against any insuring entity that
violates the requirements of this section. The total fine per case may
not exceed ten thousand dollars.
(b) The department of health may impose a fine of up to two hundred
fifty dollars per day per case against any facility or provider that
violates the requirements of this section. The total fine per case may
not exceed ten thousand dollars.
NEW SECTION. Sec. 305 The reports required under section 304 of
this act must contain the following data in a form prescribed by the
commissioner for each claim:
(1) A unique number assigned to the claim by the insuring entity or
self-insurer to serve as an identifier for the claim;
(2) The type of health care provider, including the provider's
medical specialty; the type of facility, if any, and the location
within the facility where the injury occurred;
(3) The date of the event that resulted in the claim;
(4) The county or counties in which the event that resulted in the
claim occurred;
(5) The date the claim was reported to the insuring entity, self-insurer, facility, or provider;
(6) The date of suit, if filed;
(7) The claimant's age and sex;
(8) Specific information about the judgment or settlement
including:
(a) The date and amount of any judgment or settlement;
(b) Whether the settlement:
(i) Was the result of a judgment, arbitration, or mediation; and
(ii) Occurred before or after trial;
(c) For claims that result in a verdict or judgment that itemizes
damages:
(i) Economic damages, such as incurred and anticipated medical
expense and lost wages;
(ii) Noneconomic damages; and
(iii) Allocated loss adjustment expense, including but not limited
to court costs, attorneys' fees, and costs of expert witnesses;
(d) For claims that do not result in a verdict or judgment that
itemizes damages:
(i) Total damages; and
(ii) Allocated loss adjustment expense, including but not limited
to court costs, attorneys' fees, and costs of expert witnesses; and
(e) If there is no judgment or settlement:
(i) The date and reason for final disposition; and
(ii) The date the claim was closed; and
(9) The reason for the medical malpractice claim. The commissioner
shall use the same coding of reasons for malpractice claims as those
used for mandatory reporting to the national practitioner data bank, in
the federal department of health and human services, as provided in 42
U.S.C. Secs. 11131 and 11134, as amended.
NEW SECTION. Sec. 306 The commissioner must prepare aggregate
statistical summaries of closed claims based on calendar year data
submitted under section 304 of this act.
(1) At a minimum, data must be sorted by calendar year and calendar
incident year. The commissioner may also decide to display data in
other ways.
(2) The summaries must be available by March 31st of each year.
(3) Information included in an individual closed claim report
submitted by an insurer or self-insurer under this chapter is
confidential, is exempt from public disclosure, and may not be made
available by the commissioner to the public.
NEW SECTION. Sec. 307 Beginning in 2006, the commissioner must
prepare an annual report by June 30th that summarizes and analyzes the
closed claim reports for medical malpractice filed under section 304 of
this act and the annual financial reports filed by insurers writing
medical malpractice insurance in this state. The report must include:
(1) An analysis of closed claim reports of prior years for which
data are collected and show:
(a) Trends in the frequency and severity of claims payments;
(b) An itemization of economic and noneconomic damages;
(c) An itemization of allocated loss adjustment expenses;
(d) The types of medical malpractice for which claims have been
paid; and
(e) Any other information the commissioner determines illustrates
trends in closed claims;
(2) An analysis of the medical malpractice insurance market in
Washington state, including:
(a) An analysis of the financial reports of the insurers with a
combined market share of at least ninety percent of net written medical
malpractice premium in Washington state for the prior calendar year;
(b) A loss ratio analysis of medical malpractice insurance written
in Washington state; and
(c) A profitability analysis of each insurer writing medical
malpractice insurance;
(3) A comparison of loss ratios and the profitability of medical
malpractice insurance in Washington state to other states based on
financial reports filed with the national association of insurance
commissioners and any other source of information the commissioner
deems relevant;
(4) A summary of the rate filings for medical malpractice that have
been approved by the commissioner for the prior calendar year,
including an analysis of the trend of direct and incurred losses as
compared to prior years;
(5) The commissioner must post reports required by this section on
the internet no later than thirty days after they are due; and
(6) The commissioner may adopt rules that require insuring entities
and self-insurers required to report under section 304(1) of this act
to report data related to:
(a) The frequency and severity of open claims for the reporting
period;
(b) The aggregate amounts reserved for incurred claims;
(c) Changes in reserves from the previous reporting period; and
(d) Any other information that helps the commissioner monitor
losses and claims development in the Washington state medical
malpractice insurance market.
NEW SECTION. Sec. 308 The commissioner shall adopt all rules
needed to implement this chapter. To ensure that claimants, health
care providers, health care facilities, and self-insurers cannot be
individually identified when data is disclosed to the public, the
commissioner shall adopt rules that require the protection of
information that, in combination, could result in the ability to
identify the claimant, health care provider, health care facility, or
self-insurer in a particular claim or collection of claims.
NEW SECTION. Sec. 309 A new section is added to chapter 7.70 RCW
to read as follows:
In any action filed under this chapter that results in a final:
(1) Judgment in any amount;
(2) Settlement or payment in any amount; or
(3) Disposition resulting in no indemnity payment,
the claimant or his or her attorney shall report to the office of the
insurance commissioner on forms provided by the commissioner any court
costs, attorneys' fees, or costs of expert witnesses incurred in
pursuing the action.
NEW SECTION. Sec. 310 (1) The legislature finds that the
advances in medical technology, diagnosis, and treatment have resulted
in great strides in maintaining and improving the health of
Washingtonians. Yet those advances substantially increase the
complexity of our health care delivery system and increase the risk
that medical errors will occur. The legislature further finds that our
health care and medical liability systems are not structured to promote
disclosure and analysis of medical errors, whether they result in
patient harm or not. Each medical error provides an opportunity to
learn how to avoid future errors.
(2) The legislature intends to promote full disclosure of medical
errors and adverse health events, and to use the experience and
knowledge gained from analysis of those events to advance patient
safety in a nonpunitive manner. The legislature further intends to
promote full disclosure of medical errors to patients by substantially
reducing the risk of liability exposure associated with such
disclosure.
NEW SECTION. Sec. 311 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Adverse event" means any of the following events or
occurrences:
(a) An unanticipated death or major permanent loss of function, not
related to the natural course of a patient's illness or underlying
condition;
(b) A patient suicide while the patient was under care in the
hospital;
(c) An infant abduction or discharge to the wrong family;
(d) Sexual assault or rape of a patient or staff member while in
the hospital;
(e) A hemolytic transfusion reaction involving administration of
blood or blood products having major blood group incompatibilities;
(f) Surgery performed on the wrong patient or wrong body part;
(g) A failure or major malfunction of a facility system such as the
heating, ventilation, fire alarm, fire sprinkler, electrical,
electronic information management, or water supply which affects any
patient diagnosis, treatment, or care service within the facility; or
(h) A fire which affects any patient diagnosis, treatment, or care
area of the facility.
The term does not include an incident.
(2) "Ambulatory surgical facility" means any distinct entity that
operates exclusively for the purpose of providing surgical services to
patients not requiring hospitalization, whether or not the facility is
certified under Title XVIII of the federal social security act.
(3) "Childbirth center" means a facility licensed under chapter
18.46 RCW.
(4) "Correctional medical facility" means a part or unit of a
correctional facility operated by the department of corrections under
chapter 72.10 RCW that provides medical services for lengths of stay in
excess of twenty-four hours to offenders.
(5) "Department" means the department of health.
(6) "Health care worker" means an employee, independent contractor,
licensee, or other individual who is directly involved in the delivery
of health services in a medical facility.
(7) "Hospital" means a facility licensed under chapter 70.41 RCW.
(8) "Incident" means an event, occurrence, or situation involving
the clinical care of a patient in a medical facility which:
(a) Results in unanticipated injury to a patient that is less
severe than death or major permanent loss of function and is not
related to the natural course of the patient's illness or underlying
condition; or
(b) Could have injured the patient but did not either cause an
unanticipated injury or require the delivery of additional health care
services to the patient.
The term does not include an adverse event.
(9) "Medical facility" means an ambulatory surgical facility,
childbirth center, hospital, psychiatric hospital, or correctional
medical facility.
(10) "Psychiatric hospital" means a hospital facility licensed as
a psychiatric hospital under chapter 71.12 RCW.
NEW SECTION. Sec. 312 (1) Each medical facility shall report to
the department the occurrence of any adverse event. The report must be
submitted to the department within forty-five days after occurrence of
the event has been confirmed.
(2) The report shall be filed in a format specified by the
department after consultation with medical facilities. It shall
identify the facility but shall not include any identifying information
for any of the health care professionals, facility employees, or
patients involved. This provision does not modify the duty of a
hospital to make a report to the department of health or a disciplinary
authority if a licensed practitioner has committed unprofessional
conduct as defined in RCW 18.130.180.
(3) Any medical facility or health care worker may report an
incident to the department. The report shall be filed in a format
specified by the department after consultation with medical facilities
and shall identify the facility but shall not include any identifying
information for any of the health care professionals, facility
employees, or patients involved. This provision does not modify the
duty of a hospital to make a report to the department of health or a
disciplinary authority if a licensed practitioner has committed
unprofessional conduct as defined in RCW 18.130.180.
(4) If, in the course of investigating a complaint received from an
employee of a licensed medical facility, the department determines that
the facility has not undertaken efforts to investigate the occurrence
of an adverse event, the department shall direct the facility to
undertake an investigation of the event. If a complaint related to a
potential adverse event involves care provided in an ambulatory
surgical facility, the department shall notify the facility and request
that they undertake an investigation of the event. The protections of
RCW 43.70.075 apply to complaints related to adverse events or
incidents that are submitted in good faith by employees of medical
facilities.
NEW SECTION. Sec. 313 The department shall:
(1) Receive reports of adverse events and incidents under section
312 of this act;
(2) Investigate adverse events;
(3) Establish a system for medical facilities and the health care
workers of a medical facility to report adverse events and incidents,
which shall be accessible twenty-four hours a day, seven days a week;
(4) Adopt rules as necessary to implement this act;
(5) Directly or by contract:
(a) Collect, analyze, and evaluate data regarding reports of
adverse events and incidents, including the identification of
performance indicators and patterns in frequency or severity at certain
medical facilities or in certain regions of the state;
(b) Develop recommendations for changes in health care practices
and procedures, which may be instituted for the purpose of reducing the
number and severity of adverse events and incidents;
(c) Directly advise reporting medical facilities of immediate
changes that can be instituted to reduce adverse events and incidents;
(d) Issue recommendations to medical facilities on a facility-specific or on a statewide basis regarding changes, trends, and
improvements in health care practices and procedures for the purpose of
reducing the number and severity of adverse events and incidents.
Prior to issuing recommendations, consideration shall be given to the
following factors: Expectation of improved quality care,
implementation feasibility, other relevant implementation practices,
and the cost impact to patients, payers, and medical facilities.
Statewide recommendations shall be issued to medical facilities on a
continuing basis and shall be published and posted on the department's
publicly accessible web site. The recommendations made to medical
facilities under this section shall not be considered mandatory for
licensure purposes unless they are adopted by the department as rules
pursuant to chapter 34.05 RCW; and
(e) Monitor implementation of reporting systems addressing adverse
events or their equivalent in other states and make recommendations to
the governor and the legislature as necessary for modifications to this
chapter to keep the system as nearly consistent as possible with
similar systems in other states;
(6) Report no later than January 1, 2007, and annually thereafter
to the governor and the legislature on the department's activities
under this act in the preceding year. The report shall include:
(a) The number of adverse events and incidents reported by medical
facilities on a geographical basis and their outcomes;
(b) The information derived from the data collected including any
recognized trends concerning patient safety; and
(c) Recommendations for statutory or regulatory changes that may
help improve patient safety in the state.
The annual report shall be made available for public inspection and
shall be posted on the department's web site;
(7) Conduct all activities under this section in a manner that
preserves the confidentiality of documents, materials, or information
made confidential by section 315 of this act.
NEW SECTION. Sec. 314 (1) Medical facilities licensed by the
department shall have in place policies to assure that, when
appropriate, information about unanticipated outcomes is provided to
patients or their families or any surrogate decision makers identified
pursuant to RCW 7.70.065. Notifications of unanticipated outcomes
under this section do not constitute an acknowledgment or admission of
liability, nor can the fact of notification or the content disclosed be
introduced as evidence in a civil action.
(2) Beginning January 1, 2006, the department shall, during the
annual survey of a licensed medical facility, ensure that the policy
required in subsection (1) of this section is in place.
NEW SECTION. Sec. 315 When a report of an adverse event or
incident under section 312 of this act is made by or through a
coordinated quality improvement program under RCW 43.70.510 or
70.41.200, or by a peer review committee under RCW 4.24.250,
information and documents, including complaints and incident reports,
created specifically for and collected and maintained by a quality
improvement committee for the purpose of preparing a report of an
adverse event or incident shall be subject to the confidentiality
protections of those laws and RCW 42.17.310(1)(hh).
Sec. 316 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 318 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. 317 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 318 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. 318 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
322 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. 319 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 318 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 322 of this act.
(3) The supreme court shall by rule adopt procedures to implement
this section.
NEW SECTION. Sec. 320 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. 321 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. 322 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 318
and 319 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. 323 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.
Sec. 324 RCW 4.24.260 and 1994 sp.s. c 9 s 701 are each amended
to read as follows:
((Physicians licensed under chapter 18.71 RCW, dentists licensed
under chapter 18.32 RCW, and pharmacists licensed under chapter 18.64
RCW)) Any member of a health profession listed under RCW 18.130.040
who, in good faith, makes a report, files charges, or presents evidence
against another member of ((their)) a health profession based on the
claimed ((incompetency or gross misconduct)) unprofessional conduct as
provided in RCW 18.130.180 or inability to practice with reasonable
skill and safety to consumers by reason of any physical or mental
condition as provided in RCW 18.130.170 of such person before the
((medical quality assurance commission established under chapter 18.71
RCW, in a proceeding under chapter 18.32 RCW, or to the board of
pharmacy under RCW 18.64.160)) agency, board, or commission responsible
for disciplinary activities for the person's profession under chapter
18.130 RCW, shall be immune from civil action for damages arising out
of such activities. A person prevailing upon the good faith defense
provided for in this section is entitled to recover expenses and
reasonable attorneys' fees incurred in establishing the defense.
NEW SECTION. Sec. 325 The uniform disciplinary act provides a
consistent process for addressing acts of unprofessional conduct
affecting fifty-nine health professions regulated by the state. The
disciplinary authorities include the secretary of health and sixteen
boards and commissions charged with protecting the health and safety of
patients from unprofessional conduct. It is recognized nationally as
a model law and has worked well over time to provide uniformity and
efficiency to the disciplinary process.
The legislature finds that there may be methods for increasing the
efficiency and effectiveness of this model through the redistribution
of duties between the secretary of health and the health profession
boards and commissions. In addition, there is an opportunity to
achieve greater consistency in the sanctions imposed across the health
professions through specifically identified sanctions for specific acts
of unprofessional conduct. A more consistent application of sanctions
across professions protects both the safety of the public and the due
process rights of all health care professionals.
NEW SECTION. Sec. 326 The secretary of health shall establish a
work group to review the complaint processing and sanction
determination phases of the health professions disciplinary process.
At the secretary of health's discretion, the work group may include
representatives of different health profession boards and commissions,
professional associations, and other interested parties. The work
group shall submit a report to the legislature by December 1, 2005,
with recommendations for creating:
(1) Greater efficiencies between the health professions boards and
commissions and the secretary of health in processing complaints
against license holders; and
(2) More consistent sanction determinations that balance the
protection of the public's health and the rights of health care
providers among the different health professions, including
recommendations for specific ranges of sanctions for each act of
unprofessional conduct and the effect of any aggravating and mitigating
factors that may apply to each.
NEW SECTION. Sec. 401 Part headings used in this act are not any
part of the law.
NEW SECTION. Sec. 402 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.
NEW SECTION. Sec. 403 Sections 303 through 308 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 404 Sections 310 through 315 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 405 Section 312 of this act takes effect April
1, 2006.