2006 Legislative Wrap Up

ESHB 1850 Creation of a retired volunteer medical worker license
Summary of Engrossed Substitute Bill: The Secretary of Health (Secretary) is authorized to issue a retired volunteer medical worker license to any person that:

• held an active health care provider license within 10 years prior to their initial application for the retired volunteer medical worker license;
• does not have any restrictions to practice due to violations of the Uniform Disciplinary Act; and
• registers with a local emergency services or management organization affiliated with the Emergency Management Division of the Military Department.

2SHB 2292 Compromise bill addressing health care liability reform
After both initiatives on the November 2005 ballot failed, Governor Gregoire orchestrated an omnibus bill that took the “good” parts from both initiatives and avoided the “bad.” We believe the changes will help, but that progress will be modest. The law, enacted in 2006, addressed three key areas: patient safety, insurance industry reform, and civil liability reform. To get a complete list of all aspects of this bill, go to www.leg.wa.gov

Highlights of the Patient Safety Areas

Statements of Apology: In a medical negligence action, a statement of fault, apology, or sympathy, or a statement of remedial actions that may be taken, is not admissible as evidence in a civil action if the statement was conveyed by a health care provider to the injured person or certain family members within 30 days of the act or omission, or the discovery of the act or omission, that is the basis for the claim.

Coordinated Quality Improvement Programs: The types of programs that may apply to the Department to become coordinated quality improvement programs are expanded to include consortiums of health care providers that consist of at least five health care providers.

Prescription Legibility: Prescriptions for legend drugs must either be hand-printed, typewritten, or generated electronically.

Highlights of the Insurance Industry Reform Areas

Medical Malpractice Closed Claim Reporting: Self-insurers and insuring entities that write medical malpractice insurance are required to report medical malpractice closed claims that are closed after January 1, 2008, to the Office of the Insurance Commissioner (Commissioner). Closed claims reports must be filed annually by March 1, and must include data for closed claims for the preceding year. The Commissioner must use the data to prepare aggregate statistical summaries of closed claims and an annual report of closed claims and insurer financial reports.

Cancellation or Non-Renewal of Liability Insurance Policies: The mandatory notice period for cancellation or non-renewal of medical malpractice liability insurance policies is increased from 45 days to 90 days.

Highlights of the Health Care liability Reform Areas

Statutes of Limitations and Repose: Tolling of the statute of limitations during minority is eliminated. The eight-year statute of repose is re-established. Legislative intent and findings regarding the justification for a statute of repose are provided in response to the Washington Supreme Court's decision overturning the statute of repose in DeYoung v. Providence Medical Center.

Certificate of Merit: In medical negligence actions involving a claim of a breach of the standard of care, the plaintiff must file a certificate of merit at the time of commencing the action, or no later than 45 days after filing the action if the action is filed 45 days prior to the running of the statute of limitations. The certificate of merit must be executed by a qualified expert and state that there is a reasonable probability that the defendant's conduct did not meet the required standard of care based on the information known at the time. The court for good cause may grant up to a 90-day extension for filing the certificate of merit.

Voluntary Arbitration: A new voluntary arbitration system is established for disputes involving alleged professional negligence in the provision of health care. The voluntary arbitration system may be used only where all parties have agreed to submit the dispute to voluntary arbitration once the suit is filed, either through the initial complaint and answer, or after the commencement of the suit upon stipulation by all parties. The maximum award an arbitrator can make is limited to $1 million for both economic and non-economic damages. In addition, the arbitrator may not make an award of damages based on the “ostensible agency” theory of vicarious liability.

Collateral Sources: The collateral source payment statute is amended to remove the restriction on presenting evidence of collateral source payments that come from insurance purchased by the plaintiff. The plaintiff, however, may introduce evidence of amounts paid to secure the right to the collateral source payments (e.g., premiums), in addition to introducing evidence of an obligation to repay the collateral source compensation.

Frivolous Lawsuits: An attorney in a medical malpractice action, by signing and filing a claim, counterclaim, cross claim, or defense, certifies that the claim or defense is not frivolous. An attorney who signs a filing in violation of this section is subject to sanctions, including an order to pay reasonable expenses and reasonable attorneys' fees incurred by the other party.

2006 Legislative Agenda

Follow up to the results of the November ballot initiatives (I-330/336) regarding the professional liability crisis

• Regardless of the initiative vote results, evaluate and promote future legislation as it addresses the Nursing Principles for Malpractice Reform of our WSNA/Nurse Practitioners' Coalition
  • Maintain access to care for patients
  • Retain access to the courts for all
  • Reduce the incidence of medical errors and injuries by applying systems-based (rather than blame-based) approaches to health care improvement
  • Ensure public disclosure and transparency by liability insurers of relevant business practices, income, losses, claims and benefits
  • If caps on non-economic damages are made legal, promote a fair and reasonable level of $1 million

Maintain ARNP autonomy

Ensure ARNPs are included in the language of all health care bills wherever “physician” is written

Improve insurance reimbursement of ARNPs