YEAR-END REPORT - 2019 Published 23-Dec-2019 HPTS Issue Brief 12-23-19.11 Health Policy Tracking Service - Issue Briefs Healthcare Providers & Facilities Medical Malpractice and Tort Reform Authored by Robert White a contributing writer, compliance attorney and member of the Oklahoma bar. 12/23/2019 I. OVERVIEW Although research calls into question the impact medical malpractice and tort reforms have on healthcare quality and costs, state and the federal governments continue to introduce and adopt changes. II. NEWS Pennsylvania Supreme Court Considering Repeal of the Venue Rule in Medical Professional Liability Cases In 2002 the Pennsylvania General Assembly enacted sweeping medical malpractice tort reform with the passage of the Medical Care Availability and Reduction of Error (MCARE) Act, and the Supreme Court promulgated new rules of civil procedure seeking to restore balance and fairness to medical malpractice litigation in Pennsylvania. In MCARE, the General Assembly recognized that changes in the healthcare delivery system unduly expanded the reach and scope of existing venue rules. The Supreme Court subsequently amended the applicable rules of civil procedure pertaining to venue in medical malpractice actions to limit venue to the county in which the cause of action arose to prevent forum shopping in medical malpractice actions. On December 22, 2018, more than 15 years after the implementation of these changes, the Civil Procedural Rules Committee of the Supreme Court has proposed rescission of the venue rule in medical malpractice cases on the grounds that it “no longer appears warranted.” According to the Committee, “ data compiled by the Supreme Court on case filings on medical professional liability actions indicates that there has been a significant reduction in those filings for the past 15 years. Additionally, it has been reported to the Committee that this reduction has resulted in a decrease of the amount of claim payments resulting in far fewer compensated victims of medical negligence. The Civil Procedural Rules Committee is accepting comments by all interested parties with respect to this proposed change through February 22, 2019. Tort Reform Advocates Push To Amend Kentucky's Constitution [FN1] A January article in the Louisville Business First provides additional information regarding 2019 KY S.B. 11 (NS). 2019 KY S.B. 11 (NS) calls for Kentucky's constitution to be changed to allow the General Assembly to create statutes of limitation for civil actions involving death, personal injury and property damage and to set limits on non-economic damages for civil complaints. The change would be made to Section 54 of the constitution, which currently forbids the state government from imposing such limits. It has not been amended since the constitution was ratified in 1891, according to the Kentucky Legislative Research Commission's website. Sen. Ralph Alvarado, a Republican from Winchester, is the primary sponsor of the bill. Alvarado filed a similar bill last year, but it didn't make it out of the Senate. ”It's time for us to change the constitution to adapt to the times,” Alvarado, a practicing physician, said in an interview. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -1- The effort is welcomed by many in the business community - especially the health care industry - as business and community leaders have called for years for the state to change its tort system to be more business-friendly. Greater Louisville Inc., the city's chamber of commerce, and the Kentucky Chamber of Commerce have stated that their legislative priorities in 2019 include advocating for a reform of the state's tort system. The need to alter the state's constitution as part of the tort reform effort crystallized in November, after the Kentucky Supreme Court deemed medical review panels unconstitutional. The law to create medical review panels was passed in 2016. The intent was for the panels to review litigation against care providers and weed out frivolous lawsuits. The constitutional amendment would have to clear more hurdles than a regular bill. Constitutional amendments require a three-fifths supermajority in both houses of the General Assembly and must be approved by a majority of Kentucky voters - in this case, in 2020. Oklahoma Supreme Court Strikes Down Noneconomic Damages Cap The Oklahoma Supreme Court has struck down as unconstitutional a state law that capped at $350,000 the amount that a plaintiff in a [FN2] personal injury lawsuit could recover in noneconomic damages for pain and suffering. [FN3] On April 23, 2019, the court ruled by a 5-3 vote that a tort reform law passed in 2011 violated the state's Constitution by limiting damages only for people who survive injuries and not in cases resulting in death. The decision marked the latest by a state court weighing the constitutionality of noneconomic damages caps. About half of the states limit noneconomic damages in at least medical malpractice cases, the American Tort Reform Association says. Justice John Reif, writing for the majority, said the statute was a type of so-called “special law” that the Oklahoma Constitution forbids because it treats parts of a class of similarly-situated people differently. “The failure of the statute is that it purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, while persons who die from the injury-causing event face no such limitation,” Reif wrote. Three justices dissented from the ruling, including Justice James Edmondson, who said a cap on damages “is included within the historically recognized role of a legislature in defining, creating, or abolishing a legal cause of action.” Other states including Alaska, Idaho and Kansas have rejected similar constitutional challenges to caps on noneconomic damages in tort actions while courts in states including Florida and Illinois have struck such caps down. The North Dakota Supreme Court in February heard arguments over whether that state's cap on noneconomic damages in medical malpractice cases is constitutional. Louisiana House Rejects Tort Reform Measure th [FN4] An April 25 article in the Baton Rouge Advocate, discussed the Louisiana House rejection of 2019 LA H.B. 213 (NS). The billed provided for “expedited jury trials”, which would have allowed for a case to be tried by a jury during a single day. Expeditated trials have been pressed by tort reform movements around the nation. Plaintiffs attorneys have argued that the proposed to courtroom procedures make suing businesses and insurance companies much harder. In California and Texas, where some form of expedited juries has been approved, the number of civil trials dropped dramatically. In Louisiana, opponents say “expedited jury trials” would press courts to fill up trial days with small one-day affairs thereby slow down resolution of the more complex, higher-valued cases. The House voted 40-45 to reject the legislation. Tennessee Bans Deceptive Lawyer Ads About Medicines, Medical Devices [FN5] A new bill adopted in Tennessee seeks to prevent lawyers from running deceptive ads as they go about soliciting consumers who may have been harmed by a prescription medicine or medical device. The law, which takes effect in July, does not prohibit such advertising altogether, but does ban ads that contain language suggesting they are medical warnings or health alerts, or fail to disclose information stating the ad was paid for by a lawyer, among other things. Ads are also not allowed to display the logo of a government agency, such as the Food and Drug Administration. [FN6] A similar bill has been introduced in Texas. Tennessee Judge Finds Law Limiting Caps On Damages Unconstitutional [FN7] A September 5, 2019, article in the Nashville Tennessean, discusses a recent ruling in Tennessee challenging a state law that limits how much money victims in tort cases can receive from those found responsible. Circuit Court Judge Michael Binkley struck down a cap on compensatory damages ruling that the cap, first passed in the 2011 legislative session is unconstitutional. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -2- [FN8] The cap on non-economic damages was part of the Tennessee Civil Justice Act of 2011 , containing tort reform measures that capped non-economic damages at $750,000 per plaintiff in both health care and other civil liability cases. The law also tightened restrictions on awarding punitive damages, which are now limited to “the greater of two times the total amount of compensatory damages or $500,000.” Those limits don't apply if the defendant was convicted of a felony that caused the injury, or under the influence of alcohol or drugs. Binkley's order comes as the Tennessee Supreme Court prepares to hear oral arguments in a similar case that challenges the constitutionality of the statutory cap. In June, the Tennessee Supreme Court accepted a certified question to determine whether the cap on non-economic damages violates the Tennessee constitution in another case, McClay v. Airport Management Services, Inc. The court is expected to hear oral arguments in that case in October. Florida's Wrongful Death Act has a Loophole for Medical Negligence. [FN9] An October 13, 2019 article in the Sarasota Herald Tribune discusses a loophole in Florida's Wrongful Death Act when you are a single adult 25 or older with no minor children who dies as a result of medical negligence. On August 2, Gerald Giannillo checked in at Sarasota Memorial Hospital for surgery to repair an aneurysm and leaking heart valve caused by a hereditary condition. Eighteen days later, at Tampa General Hospital, where he had been transferred by helicopter four days after the delicate surgery, he was removed from life support. There is no clarity on whether any mistakes were made in Giannillo's procedure. Sarasota Memorial officials say he was at a high risk for an aortic tear, which would likely have brought life-threatening bleeding. They say surgeons repaired his aneurysm and preserved his heart valve, but despite their best efforts to restore full function to his heart, one section of his left ventricle did not respond to further treatment. After consulting with cardiac surgeons at Columbia University Medical Center and transplant surgeons in Tampa, Giannillo was transferred to Tampa General, Sarasota Memorial says. He died on Aug. 20 without ever having regained consciousness or stabilized sufficiently to be placed on a heart transplant list. Shirley Giannillo, Gerald's mother, wanted to explore the possibility of initiating an independent investigation into the circumstances of Giannillo's care and death. Because of a little-known exemption in Florida's Wrongful Death Act, neither she nor the next of kin of anyone who was over the age of 25, unmarried and without minor children, was entitled to file a medical malpractice suit. Florida's Wrongful Death Act (FL ST § 768.21) is the state's legal blueprint for redressing a death caused by negligence. It provides guidelines for who can bring a medical facility or a health care provider to court in the event of a suspected wrongful death, and by what measure they can be compensated. But an exemption within the law prevents the remaining next of kin of any adult child (in Florida, anyone age 25 or older) who has no spouse or minor children, or the adult children of a parent who has no spouse, from recovering damages for pain and suffering after a wrongful death in a medical setting. In other words, in cases where medical negligence is suspected, only a spouse or a minor child may file a wrongful death grievance in a court of law. Florida is the only state in the nation with such an exclusion. Given the state's high population of widowed seniors, unmarried college students and middle-aged single and divorced individuals whose children are over 25, it is estimated more than half the state's population falls into the category. The Wrongful Death statute evolved from medical malpractice tort reforms of the late '80s and early '90s, prior to which there were limitations on who could bring any kind of negligence lawsuit for damages. In 1990, the Legislature altered a statute to add the ability of adult children and parents of an adult child to bring wrongful death lawsuits in non-medical negligence cases - a right they had not previously enjoyed. But while that meant they could file suit if, for example, their loved one was hit by a drunk driver while crossing the street, the statute specifically excluded medical malpractice lawsuits. Florida legislators felt that by protecting medical providers from a plethora of malpractice suits and escalating liability insurance rates, it would encourage more physicians to practice in the state and lower the cost of health care by reducing malpractice premiums. Opponents argue that neither of those benefits have accrued and that the exemption has done, in fact, done more harm than good. Instead of attracting the best doctors, they say, Florida has lured physicians who've experienced malpractice suits elsewhere or had their licenses stripped in other states. They point to the fact that malpractice insurance and health care costs have also continued to steadily climb, despite the exemption. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -3- The constitutionality of the law also has been challenged. In a 2000 case, Mizrahi v. North Miami Medical Center, the surviving adult children of Morris Mizrahi charged that they had not been afforded equal protection under the law by being prevented from filing a medical negligence suit. Nevertheless, the Florida Supreme Court upheld the exclusion as constitutional, stating “the statute's disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.” Missouri Business Leader Says Tort Reform Will Be A Top Issue In Next Year's Legislative Session An October 28, 2019, article in the St. Louis Record discusses potential tort reform bill for next year's legislative session in Missouri. [FN10] The Associated Industries of Missouri (AIM) president and CEO Ray McCarty said there are several key issues for 2020 that the organization would likely focus on. McCarty said punitive damages reform has been a focus for several years and he hoped work would continue with 2019 MO H.B. 489 (NS) and 2019 MO S.B. 65 (NS). McCarty said the purpose of these two bills is to make sure punitive damages are only brought up in a court case when a defendant needs to be punished for verifiable wrong-doing, not just for the purpose of driving up settlements. McCarty said two bills regarding the statute of repose, 2019 MO H.B. 186 (NS) and 2019 MO S.B. 100 (NS), would also be something to focus on in the following session. “Missouri is one of the few states that doesn't have [a statute of repose],” McCarty said. “It involves diseases that take a longer time to develop. This bill would say you'd have 15 years after you purchased a product or if there was a longer warranty, you'd have that full warranty period. You'd have additional time for things like mesothelioma.” Pennsylvania Supreme Court Takes Down Tort Reform Measure [FN11] A November 18, 2019, article in the Pennsylvania Record discusses the impact of a recent Supreme Court of Pennsylvania ruling on the future medical malpractice litigation in Pennsylvania. In Yanakos Et. Al v. UPMC et. al, the state Supreme Court justices arrived at a 4-3 ruling which declared as unconstitutional the seven- year statute of limitations on filing medical malpractice lawsuits in Pennsylvania. This decision reversed an earlier ruling from the Superior Court of Pennsylvania and reverts the statute to 12 years. In September 2003, plaintiff Christopher G. Yanakos chose to donate part of his liver to his mother and fellow plaintiff, Susan Yanakos. As part of pre-donor preparation, Christopher participated in testing which showed that his liver did not have full function – but, the Yanakos plaintiffs say they were not made aware of this result for 11 years, until 2014. At that time, both Christopher and Susan were suffering from a severe liver disease, Antitrypsin Deficiency (AATD). In December 2015, the Yanakoses sued the University of Pittsburgh Medical Center and two physicians for negligence, lack of informed consent, medical malpractice and loss of consortium, arguing the 2003 tests should have disqualified him as a prospective donor. The high court's decision reversed the Superior Court's ruling in favor of UPMC that affirmed an Allegheny County Court of Common Pleas decision. Both courts found that Christopher, his mother Susan and his father William Ronald Yanakos had waited too long – 12 years – to file their case. The Court ruled that the Medical Care Availability and Reduction of Error (MCARE) Act's repose statute violates access to the courts, as assured by the Pennsylvania State Constitution. Authoring the Court's majority opinion was Justice Sallie Updyke Mundy, who said it was the defendants who needed to prove that the MCARE Act's statute of repose was “substantially or closely related to an important government interest” but added they did not do so. “There was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it ‘seemed like a reasonable resolution’ to ‘provide some stability and predictability’ to insurers,” Mundy stated. “There is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action. There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.” Hospital & Health Systems Association of Pennsylvania (HAP) Media Relations Director Rachel Moore issued a statement from the organization in response to the decision. “A sharply divided state Supreme Court struck down the seven-year statue of repose provision in the Medical Care Availability and Reduction of Error (MCARE) Act that established a deadline for filing medical actions in Pennsylvania. Statutes of repose exist without challenge in many contexts, and this ruling is unprecedented. The same can be said for the more commonly understood statute of limitations,” Moore said. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -4- “The Supreme Court applied a completely new level of scrutiny to the statute in question and many organizations have questioned this ruling. HAP – with approval from its Board of Directors – will join a number of these organizations in an amicus brief that urges the Supreme Court to reconsider its decision.” III. SELECTED LEGISLATION Arkansas 2019 AR S.B. 273 (NS), enacted April 5, 2019, effective August 5, 2019, to clarify that an expert witness testifying or offering opinions regarding an administrative proceeding before a board of any profession or occupation classified under the laws of the state of Arkansas as a profession of the healing arts has immunity. Arizona 2019 AZ H.B. 2711 (NS), introduced February 12, 2019, providing that unless the elements of proof prescribed in AZ ST § 12-563 (Necessary elements of proof) are established by clear and convincing evidence, a physician who practices in obstetrics is not liable to the pregnant female patient or the child or children delivered, or their families, for medical malpractice related to labor or delivery. Colorado 2019 CO S.B. 201 (NS), enacted May 6, 2019, effective July 1, 2019, adopts the Colorado Candor Act, providing for the creation of a process by which certain parties to an adverse health care incident may discuss potential outcomes. Provides that open discussion communications and offers of compensation: (a) do not constitute an admission of liability; (b) are privileged and confidential and shall not be disclosed; (c) are not admissible as evidence in any subsequent judicial, administrative, or arbitration proceeding arising directly out of the adverse health care incident; (d) are not subject to discovery, subpoena, or other means of legal compulsion for release; and (e) shall not be disclosed by any party in any subsequent judicial, administrative, or arbitration proceeding arising directly out of the adverse health care incident. Connecticut • 2019 CT H.B. 6762 (NS), introduced January 29, 2019, to protect the personal assets of a physician and an advanced practice registered nurse during a medical malpractice action when such persons have complied with the statutory requirements concerning the purchase of professional liability insurance. • 2019 CT H.B. 7343 (NS), enrolled June 24, 2019, permits certain medical malpractice claims to be initiated in state court instead of the Office of the Claims Commissioner. District of Columbia 2019 DC L.B. 269 (NS), introduced April 22, 2019, to require a health professional to submit to a board, commission or authority responsible for licensing, registering or certifying the health professional within 10 days, notice of a malpractice judgment, or confidential settlement. Georgia 2019 GA H.B. 128 (NS), enacted May 7, 2019, effective July 1, 2019, provides that insurers do not have to notify the Georgia Composite Medical Board of agreements to settle medical malpractice claims against physicians when the settlement resulted in the low payment under a high/low agreement; provides that licensees, certificate holders, and permit holders do not have to notify the Georgia Composite Medical Board of agreements to settle medical malpractice claims against physicians when the settlement resulted in the low payment under a high/low agreement; and provides that low payments under high/low agreements shall not be included in physician profiles as medical malpractice settlements. Hawaii 2019 HI S.B. 903 (NS), introduced January 18, 2019, provides immunity from liability for postgraduate resident physicians and fellows for medical malpractice claims arising from injury that occurs as a result of care that is provided while the resident physician or fellow is participating in an accredited training program under the supervision of a licensed faculty or volunteer physician. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -5- Illinois 2019 IL S.B. 1571 (NS), enacted and effective August 16, 2019, amends the Healing Art Malpractice Part of the Civil Practice Article of the Code of Civil Procedure. Repeals provisions regarding: election for periodic payment; special findings required; calculation of future damages; basis for determining judgment to be entered; payment of periodic installment obligations; form of security; posting and maintaining security; equivalent lump sum value; effect of death; liability insurance policy limits; assignment of periodic installments; exemption of benefits; settlement agreements and consent judgments; satisfaction of judgments; and duties of Director of Insurance. Indiana 2019 IN S.B. 26 (NS), filed December 11, 2018, permits a patient to bring an action against a health care provider without submitting the complaint to the medical review board if the amount of the claim is not more than $187,000. (Under current law, a patient may bring a direct action only if the amount is not more than $15,000.) Iowa 2019 IA S.S.B. 1087 (NS), filed January 31, 2019, provides that the total amount of noneconomic damages recoverable from all defendants in all civil actions, whether in tort, contract, or otherwise and including derivate actions, that arise out of an act or omission in connection with the provision of health care services shall not exceed two hundred fifty thousand dollars; provides requirements for an expert witness certificate of merit affidavit and an evidence-based medical practice guidelines affirmative defense. Kentucky 2019 KY H.B. 429 (NS), introduced February 19, 2019, delivered to Governor March 14, 2019, to create a new section of KRS Chapter 411, requiring plaintiffs in medical malpractice actions to file a certificate of merit; and repeal all sections in KRS Chapter 216C, the 2017 Medical Review Panel Act. Maryland • 2019 MD S.B. 322 (NS), introduced January 30, 2019, prohibiting a claim against a health care provider for damage due to a medical injury from being filed with the Director of the Health Care Alternative Dispute Resolution Office unless, at least 90 days before filing the claim, the claimant has given a notice to the health care provider of intent to file a claim; requiring the notice to include certain information and to be served on the health care provider at a certain address; etc. • 2019 MD S.B. 869 (NS), introduced February 6, 2019, establishing a system for adjudication of a claim involving a birth-related neurological injury; providing for certain benefits and compensation of a claimant under the Act; establishing the Maryland No-Fault Birth Injury Fund to provide compensation and benefits to eligible claimants; providing for certain premiums and insurance surcharges to be used to finance and administer the Fund; and requiring the Maryland Patient Safety Center to convene a certain Perinatal Clinical Advisory Committee. • 2019 MD H.B. 1323 (NS), introduced February 15, 2019, for the purpose of requiring a certain award or verdict for future medical expenses to be based on a certain average national reimbursement rate for a certain locality except under certain circumstances; requiring a certain award or verdict for future medical expenses for hospital facility services to be based on certain rates; requiring a certain award or verdict for future medical expenses for nursing facility services to be based on a certain rate; requiring a certain award or verdict for certain future medical expenses for which there is not a certain reimbursement rate to be based on a certain cost; requiring future medical expenses to be adjusted for inflation by a certain index; requiring a certain adjustment for inflation to be based on the average rate of inflation for a certain amount of years preceding an award or verdict; authorizing a certain expert witness to testify at trial in a health care malpractice case, under certain circumstances; and generally relating to health care malpractice claims. • 2019 MD S.B. 773 (NS), enacted May 13, 2019, effective October 1, 2019, altering, from 20% to 25%, the percentage of an expert's professional activities that may have been devoted to certain activities that directly involve testimony in personal injury claims during the 12 months immediately before the date when the claim was first filed in order for the expert to qualify to testify in relation to a certain proceeding; and establishing that a certain health care provider shall be deemed to have met a certain requirement during the pendency of a claim under certain circumstances. New Hampshire 2019 NH S.B. 296 (NS), enacted June 19, 2019, effective January 1, 2020, the purpose of this bill is to reduce the costs to the parties and to the judicial system, and to reduce the burdens on medical practitioners and their patients, of requiring live medical testimony in trials of tort claims seeking damages on account of bodily injury. This bill permits certain medical and dental records and reports to be admissible in civil proceedings as evidence of the necessity of and charges for certain medical and dental services, the diagnosis and prognosis of a licensed health care provider, and certain opinions of licensed health care providers. New Jersey © 2020 Thomson Reuters. No claim to original U.S. Government Works. -6- 2018 NJ A.B. 5684 (NS), introduced June 24, 2019, provides that retired physicians practicing under a limited medical license are not required to be covered by medical malpractice liability insurance. New Mexico • 2019 NM H.B. 629 (NS), introduced February 14, 2019, amending the Medical Malpractice Act to clarify that business entities providing health care services are health care providers under the act; raising the recoverable limits; prohibiting the disclosure of certain confidential information; and creating an advisory committee. On March 5, 2019 bill died as it was tabled indefinitely. • 2019 NM S.M. 108 (NS), introduced February 28, 2019, a memorial requesting a task force to study matters pertaining to the Medical Malpractice Act and to recommend appropriate amendments to the medical malpractice act to make available affordable medical professional liability insurance and appropriate insurance recovery for medical injury patients. New York • 2019 NY A.B. 476 (NS), introduced January 9, 2019, establishes the medical malpractice relief fund; such fund shall consist of all moneys received from taxes assessed on health maintenance organizations pursuant to article thirty-three-C of the tax law; moneys in the fund shall be kept separately from and shall not be commingled with any other moneys in the custody of the state comptroller; and moneys in the account, following appropriation by the legislature, shall be expended by the superintendent of financial services for the purpose of providing relief to health care practitioners by reducing the increasing costs of medical malpractice insurance. • 2019 NY A.B. 1142 (NS), introduced January 14, 2019, requires physicians subject to proceedings for medical misconduct or actions for medical malpractice to give notice to patients of such proceedings and actions. • 2019 NY A.B. 1164 (NS), introduced January 14, 2019, establishes the category of “qualified group practice” for medical, dental and podiatric practices that comply with certain standards and authorizes such practices to operate a malpractice prevention program. • 2019 NY A.B. 1970 (NS), introduced January 18, 2019, lengthens the period of time for the filing of medical malpractice cases based upon allegations of reckless use of a syringe, needle or other sharp. • 2019 NY A.B. 3698 (NS), introduced January 30, 2019, establishes the Medical malpractice rate relief program for physicians practicing in designated physician shortage areas in counties with a population of less than 160,000 to be awarded medical malpractice rate relief in an amount to be determined by the commissioner of health. • 2019 NY A.B. 4858 (NS), introduced February 5, 2019, requires licensed health care professionals and hospitals to make available to patients and prospective patients a printed copy of any medical malpractice conviction. • 2019 NY A.B. 5018 (NS), introduced February 7, 2019, requires the complaint in an action for medical, dental or podiatric malpractice to be accompanied by an affidavit of merit stating information attested to by an appropriate health care professional which establishes the alleged malpractice; and requires enhanced discovery and disclosure of experts in medical, dental and podiatric malpractice actions. • 2019 NY A.B. 5909 (NS), introduced February 20, 2019, provides that in any action for medical, dental or podiatric malpractice, any communication or conduct by a health care provider expressing apology or regret, made in good faith to a patient or a patient's relative is inadmissible in any civil proceeding as an admission of liability or against interest. • 2019 NY A.B. 6903 (NS), introduced March 25, 2019, every hospital is strictly liable for any injuries suffered to any patient as a result of an error in providing medication to said patient in the course of a treatment, procedure or delivery of health care service. • 2019 NY S.B. 6547 (NS) delivered to governor October 17, 2019, governor action due by October 29, 2019. Medical malpractice insurers have been afforded certain exemptions from various rules pertaining to financial reporting and regulation. This bill extends the exemptions from RBC requirements and from an application for an order or rehabilitation or liquidation until December 31, 2022. Nevada 2019 NV S.B. 289 (NS), introduced March 18, 2019, removes prior disciplinary actions and malpractice claims as prohibitions to receiving a license by endorsement, provided that the applicant is certified in a recognized specialty and licensed in another jurisdiction. North Carolina 2019 NC H.B. 228 (NS), enacted August 1, 2019, effective October 1, 2019, clarifies that all applicants and licensees shall report all medical malpractice judgments or awards affecting or involving the applicant or licensee; and all settlements in the amount of seventy- five thousand dollars ($75,000) or more related to an incident of alleged medical malpractice. Texas © 2020 Thomson Reuters. No claim to original U.S. Government Works. -7- 2019 TX H.B. 1504 (NS), adopted June 14, 2019, effective September 1, 2019, provides that if no action is taken against a physician's license as a result of an investigation of medical malpractice claims or complaints required to be investigated by the board, the board shall, not later than the 10th working day after the date the board resolves the investigation, remove any record of the investigation from the physician's profile. Utah 2019 UT S.B. 29 (NS), filed December 20, 2018, reauthorizes provisions regarding medical malpractice arbitration agreements to extend the sunset date for provisions for 10 years. West Virginia 2019 WV S.B. 510 (NS), enacted March 25, 2019, effective May 29, 2019, providing for requirements for notice of claim relating to medical professional liability IV. SELECTED REGULATIONS Federal 84 FR 34718-01, published July 18, 2019, effective September 16, 2019, amends the requirements that Long-Term Care (LTC) facilities must meet to participate in the Medicare and Medicaid programs. Repeals the prohibition on the use of pre-dispute, binding arbitration agreements in LTC facilities. Pre-dispute binding arbitration agreements are arrangements, whereby two parties agree to settle future disputes through an arbitration process rather than through litigation, and requires both parties to accept the arbitration process' outcome. Utah 2019 UT REG TEXT 508249 (NS), published January 8, 2019, effective December 10, 2018, amends UT ADC R156-78B (Prelitigation Panel Review Rule) to meet the mandate required by 2018 UT S.B. 223 (NS). 2018 UT S.B. 223 (NS) amended the Utah Health Care Malpractice Act to require the Division of Occupational and Professional Licensing (Division) to compile certain information related to medical liability prelitigation proceedings, and authorized the Division to gather that information from various persons involved in the proceedings. © Copyright Thomson/West - NETSCAN's Health Policy Tracking Service [FN1] . 2019 WLNR 729968 [FN2] . 4/24/19 REUTERS LEGAL 19:32:29 [FN3] . 2019 WL 1772328 [FN4] . 2019 WLNR 12954212 [FN5] . 2019 TN S.B. 352 (NS) [FN6] . 2019 TX S.B. 1189 (NS) [FN7] . 2019 WLNR 27019787 [FN8] . TN LEGIS 510 (2011) © 2020 Thomson Reuters. No claim to original U.S. Government Works. -8- [FN9] . 2019 WLNR 31037312 [FN10] . 2019 WLNR 32488432 [FN11] . 2019 WLNR 34736192 Produced by Thomson Reuters Accelus Regulatory Intelligence 04-Feb-2020 © 2020 Thomson Reuters. No claim to original U.S. Government Works. -9-