Introduced by Senator Lyons of Chittenden District and Senator Mullin of Rutland District
Subject: Court procedure; medical malpractice
Statement of purpose: This bill proposes a number of changes related to medical malpractice actions. The bill:
(1) requires the Vermont property and casualty guaranty association to pay medical malpractice claims which were timely filed against insolvent insurers;
(2) provides for public inspection of all rate filings;
(3) shortens the time period within which minors may bring medical malpractice actions;
(4) sets standards for the qualification of physician expert witnesses;
(5) limits damages for pain and suffering in medical malpractice actions to $250,000.00, adjusted every other year beginning in 2008 based on the Consumer Price Index;
(6) makes an expression of regret or apology made by or on behalf of a health care provider inadmissible in any civil or administrative proceeding against the provider;
(7) provides limited immunity to health care practitioners providing volunteer or public health services; and
(8) establishes a mandatory arbitration process for medical malpractice actions.
AN ACT RELATING TO PROCEDURES INVOLVING MEDICAL MALPRACTICE ACTIONS
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 8 V.S.A. § 3615(a)(1) is amended to read:
§ 3615. POWERS AND DUTIES OF ASSOCIATION
(a) The association shall:
(1) Be obligated to the extent of the covered claims
existing prior to the
Sec. 2. 8 V.S.A. § 4688(e) is amended to read:
open to inspection. All rates, supplementary rate information, and any
supporting information for risks filed under this chapter shall, as soon as
or after approval for those matters subject to prefiling, be open
to public inspection at any reasonable time. Copies may be obtained by any
person on request and upon payment of a reasonable charge in the manner and
amount prescribed by the commissioner.
Sec. 3. 12 V.S.A § 551 is amended to read:
§ 551. MINORITY, INSANITY, OR IMPRISONMENT
(a) When a person entitled to bring an action specified in this chapter is a minor, insane, or imprisoned at the time the cause of action accrues, such person may bring such action within the times in this chapter respectively
limited, after the disability is removed, except as provided in subsection (c) of this section.
* * *
(c) Notwithstanding the provisions of subsection (a) of this section, a claim by a minor to recover damages for injuries to the person arising out of any medical or surgical treatment or operation shall be brought within the time limitations required by section 521 of this title, except that a minor under six years of age shall have until his or her ninth birthday for the limitations period to commence.
Sec. 4. 12 V.S.A. § 1643a is added to read:
§ 1643a. PHYSICIAN EXPERT WITNESS
(a) No person shall be permitted to serve as a physician expert witness unless the person has a current, valid, and unrestricted license to practice medicine in the state in which he or she practices.
(b) The physician expert witness shall be:
(1) qualified by experience or demonstrated competence in the area of medical practice involved in the case; and
(2) familiar with the standard of care provided at the time of the alleged occurrence.
(c) The physician expert witness shall state the basis of his or her testimony or opinion, and whether it is based on personal experience, specific clinical references, evidence-based guidelines, or a generally accepted opinion in the specialty field.
Sec. 5. 12 V.S.A. § 1910 is added to read:
§ 1910. MEDICAL MALPRACTICE; LIMITATION ON DAMAGES FOR
PAIN AND SUFFERING
In an action based on medical malpractice, the damages awarded for pain and suffering or other noneconomic loss shall not exceed the amount of $250,000.00. On January 1, 2008, the department of banking, insurance, securities, and health care administration shall increase the $250,000.00 limit on damages established under this section by a percentage based on the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor, or successor agency for the 12 months preceding August 2007. Thereafter, beginning on January 1, 2010, and every other January 1 thereafter, the department of banking, insurance, securities, and health care administration shall increase the $250,000.00 limit on damages established under this section by a percentage based on the same Consumer Price Index, computed for the 12 months preceding the previous August, compounded annually. The limit on damages shall be rounded off to the nearest $1.00.
Sec. 6. 12 V.S.A. § 1911 is added to read:
§ 1911. EXPRESSION OF REGRET OR APOLOGY BY HEALTH CARE
(a) An expression of regret or apology made by or on behalf of a health care provider, including an expression of regret or apology that is made in writing, orally, or by conduct, does not constitute an admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider, including any arbitration or mediation proceeding.
(b) A health care provider, or any other person who makes an expression of regret or apology on behalf of the health care provider, including an expression of regret or apology that is made in writing, orally or by conduct, may not be examined by deposition or otherwise with respect to the expression of regret or apology in any civil or administrative proceeding against the health care provider, including any arbitration or mediation proceeding.
(c) As used in this section, “health care provider” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advance practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, or a physician’s assistant certified pursuant to section 1733 of Title 26 acting within the scope of the license under which the health care provider is practicing.
Sec. 7. 12 V.S.A. § 5784 is added to read:
§ 5784. VOLUNTEER SERVICES BY HEALTH CARE PRACTITIONERS
Notwithstanding any other provision of law, a licensed health care practitioner shall not be liable for injury or death arising from the practitioner’s provision of professional services unless the injury or death was caused by the gross negligence or willful misconduct of the health care practitioner, if the professional services were:
(1) provided voluntarily, without the expectation of directly or indirectly receiving monetary or other compensation;
(2) within the scope of the health care practitioner’s licensure; and
(3) provided at a free clinic.
Sec. 8. 12 V.S.A. § 5785 is added to read:
§ 5785. PUBLIC HEALTH SERVICES PROVIDED BY HEALTH CARE
A licensed health care practitioner who provides professional services or advice in response to a health order issued by the commissioner of health under section 126 of Title 18 shall not be liable for injury or death arising from the services or advice, or from the practitioner’s response to the order, unless the injury or death was caused by the gross negligence or willful misconduct of the health care practitioner.
Sec. 9. Sec. 50 of No. 160 of the Acts of the 1991 Adj. Sess. (1992) is amended to read:
Sec. 50. EFFECTIVE DATE Secs. 46,
47, 48 and 49, amending chapter 215 of Title 12 to provide for mandatory
arbitration in medical malpractice cases and admission of practice guidelines,
shall take effect on the effective date of a universal health care system enacted
by the general assembly.
Sec. 10. EFFECTIVE DATE
(a) This act shall take effect on July 1, 2005, except as provided in subsection (b) of this section.
(b) Sec. 9 of this act, which establishes mandatory arbitration of claims based on medical malpractice by repealing Sec. 50 and making effective Secs. 46-49 of No. 160 of the Acts of the 1991 Adj. Sess. (1992), shall take effect on September 1, 2005.
The Vermont General Assembly
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