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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1171 |
TWENTY-SECOND LEGISLATURE, 2003 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO CONCILIATION PANELS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 671, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§671- Certificate of consultation. (a) Any claim filed with the medical claims conciliation panel under this chapter shall be accompanied by a certificate which declares one of the following:
(1) That the claimant or the claimant's attorney has reviewed the facts of the case, that the claimant or claimant's attorney has consulted with at least one physician who is licensed to practice and practices in this State or any other state, or who teaches at an accredited college or university and is licensed to practice in this State or any other state, in the same medical specialty as the health care professional against whom the claim is made and who the claimant or the claimant's attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the claimant or claimant's attorney has concluded on the basis of such review and consultation that there is a reasonable and meritorious cause for the filing of the claim. The physicians consulted by the claimant or the claimant's attorney may not be a party to the case, nor be compelled to testify or otherwise participate in the hearing before the medical claims conciliation panel;
(2) That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (l) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed by the claimant or the claimant's attorney within thirty days after filing the claim; or
(3) That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (1) after the claimant or the claimant's attorney has made three separate good faith attempts with three separate physicians to obtain such consultation and none of those contacted would agree to such a consultation.
(b) Where a claimant or the claimant's attorney intends to rely solely on a failure to inform of the consequences of a procedure (informed consent), this section shall be inapplicable. The claimant or the claimant's attorney shall certify upon filing of the claim that the claimant or the claimant's attorney is relying solely on the failure to inform of the consequences of a procedure and for that reason is not filing a certificate as required by this section.
(c) For the purposes of this section, the claimant or the claimant's attorney shall not be required to disclose the names of the physicians consulted to fulfill the requirements of subsection (a) unless required to do so by the medical claims conciliation panel.
(d) Unless a certificate is filed pursuant to subsection (a) or (b), the claim shall not be received for filing by the medical claims conciliation panel."
SECTION 2. Chapter 671, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§671- Alternatives to proceeding through the medical claims conciliation panels; certified alternative dispute resolution program. (a) In lieu of pursuing a claim through the medical claim conciliation panels, a person or the person's representative claiming that a medical tort has been committed may submit the claim to any alternative dispute resolution program certified by the supreme court of Hawaii as being appropriate to review medical tort claims.
(b) Any claim initially filed with the medical claim conciliation panels may be subsequently submitted to a certified alternative dispute resolution program, upon the written agreement of all of the parties to the claim, prior to the claim being decided by a medical claim conciliation panel.
(c) Once a claim is filed with a certified alternative dispute resolution program, the parties shall comply with the procedures established by the certified alternative dispute resolution program.
(d) The decision rendered by the certified alternative dispute resolution program shall be advisory and not binding on the parties.
(e) Within thirty days after the completion of a hearing, the certified alternative dispute resolution program shall issue a written advisory decision and mail copies to all parties concerned, their counsel, and the representative of each health care provider's liability insurance carrier authorized to act for the carrier, as appropriate.
(f) The claimant may institute litigation based upon the claim in an appropriate court only:
(1) after a party to a claim rejects the decision of the certified alternative dispute resolution program, or
(2) if the claim has not been decided by the certified alternative dispute resolution program after twelve months from the date the claim was filed with the certified alternative dispute resolution program.
(g) Any medical tort action filed after the claim has been submitted to the certified alternative dispute resolution program shall be accompanied by a certificate of consultation as set forth in section 671- . Medical tort lawsuits not accompanied by a certificate of consultation shall be rejected for filing by the courts.
(h) No statement made in the course of the hearing conducted by the certified alternative dispute resolution program shall be admissible in evidence either as an admission, to impeach the credibility of a witness, or for any other purpose in any trial of the action. No decision, conclusion, finding, or recommendation of the certified alternative dispute resolution program on the issue of liability or on the issue of damages shall be admitted into evidence in any subsequent trial, nor shall any party to the certified alternative dispute resolution program hearing, or the counsel or other representative of such party, refer or comment thereon in an opening statement, an argument, or at any time, to the court or jury."
SECTION 3. Section 671-18, Hawaii Revised Statutes, is amended to read as follows:
"§671-18 Statute of limitations tolled. The filing of the claim with the medical claim conciliation panel or with a certified alternative dispute resolution program shall toll any applicable statute of limitations, and any such statute of limitations shall remain tolled until sixty days after the date the decision of the panel or the certified alternative dispute resolution program is mailed or delivered to the parties[; provided that in no case shall the applicable statute of limitations be tolled for more than eighteen months]. If a decision by the medical claim conciliation panel or the certified alternative dispute resolution program is not reached within [eighteen] twelve months, the statute of limitations shall resume running and the party filing the claim may commence a suit based on the claim in any appropriate court of this State. The panel or the certified alternative dispute resolution program shall notify in writing all parties of this provision."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
INTRODUCED BY: |
_____________________________ |
BY REQUEST |