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BILL AS INTRODUCED 2007-2008

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S.24

Introduced by Senator Mullin of Rutland District

Referred to Committee on

Date:

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 2009 based on the Consumer Price Index;

(6)  provides limited immunity to health care practitioners providing volunteer or public health services; and

(7)  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 order of liquidation, arising within 30 days after the order of liquidation, or before the policy expiration date if less than 30 days after the order of liquidation, or before the insured replaces the policy or causes its cancellation, if the insured does so within 30 days of the determination, or in the case of a claim for medical malpractice, if the claim is brought within the time period required under section 521 of Title 12, but this obligation shall include only that amount of each covered claim which, unless it is a claim arising out of a workers’ compensation policy, is less than $300,000.00 and which, if it is a claim for unearned premium, is in excess of $25.00.  In no event shall the association be obligated to a policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy from which the claim arises, nor for any claim filed with the association after the final date set for the filing of claims against the liquidator or receiver of the insolvent insurer, nor in any event after the expiration of three years from the date of determination of


the insolvency of such insurer, unless the obligation arises out of an action for medical malpractice.  

Sec. 2.  8 V.S.A. § 4688(e) is amended to read:

(e)  Filings open to inspection.  All rates, supplementary rate information, and any supporting information for risks filed under this chapter shall, as soon as filed 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. § 1913 is added to read:

§ 1913.  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, 2009, 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 2008.  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. § 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. 7.  12 V.S.A. § 5785 is added to read:

§ 5785.  PUBLIC HEALTH SERVICES PROVIDED BY HEALTH CARE

               PRACTITIONERS

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. 8.  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. 9.  EFFECTIVE DATE

(a)  This act shall take effect on July 1, 2007, except as provided in subsection (b) of this section.

(b)  Sec. 8 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, 2007.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us