HF 4179

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to civil actions; regulating the liability of certain health care providers for
providing emergency care and treatment; regulating affidavits of expert review in
malpractice actions against health care providers; amending Minnesota Statutes
2006, sections 145.682, subdivisions 3, 6; 604A.01, subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 145.682, subdivision 3, is amended to read:

Subd. 3.

Affidavit of expert review.

The affidavit required by subdivision 2, clause
(1), must be by the plaintiff's attorney and state that:

(a) the facts of the case have been reviewed by the plaintiff's attorney with an
expert deleted text begin whose qualifications provide a reasonable expectation that the expert's opinions
could be admissible at trial deleted text end new text begin who is board certified if board certification is available to that
particular specialty and currently practicing in the specialty or specialty areas of practice
from which the applicable standard of care arises new text end and that, in the opinion of this expert,
one or more defendants deviated from the applicable standard of care and by that action
caused injury to the plaintiff; or

(b) the expert review required by paragraph (a) could not reasonably be obtained
before the action was commenced because of the applicable statute of limitations. If
an affidavit is executed pursuant to this paragraph, the affidavit in paragraph (a) must
be served on defendant or the defendant's counsel within 90 days after service of the
summons and complaint.

Sec. 2.

Minnesota Statutes 2006, section 145.682, subdivision 6, is amended to read:

Subd. 6.

Penalty for noncompliance.

(a) Failure to comply with subdivision
2, clause (1), within 60 days after demand for the affidavit results, upon motion, in
mandatory dismissal with prejudice of each cause of action as to which expert testimony is
necessary to establish a prima facie case.

(b) Failure to comply with subdivision 2, clause (2), new text begin and subdivision 4 new text end results, upon
motion, in mandatory dismissal with prejudice of each cause of action as to which expert
testimony is necessary to establish a prima facie case.

deleted text begin (c) Failure to comply with subdivision 4 because of deficiencies in the affidavit or
answers to interrogatories results, upon motion, in mandatory dismissal with prejudice
of each action as to which expert testimony is necessary to establish a prima facie case,
provided that:
deleted text end

deleted text begin (1) the motion to dismiss the action identifies the claimed deficiencies in the affidavit
or answers to interrogatories;
deleted text end

deleted text begin (2) the time for hearing the motion is at least 45 days from the date of service of
the motion; and
deleted text end

deleted text begin (3) before the hearing on the motion, the plaintiff does not serve upon the defendant
an amended affidavit or answers to interrogatories that correct the claimed deficiencies.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment
and applies to causes of action commenced on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2006, section 604A.01, subdivision 2, is amended to read:

Subd. 2.

General immunity from liability.

(a) A person who, without
compensation or the expectation of compensation, renders emergency care, advice, or
assistance at the scene of an emergency or during transit to a location where professional
medical care can be rendered, is not liable for any civil damages as a result of acts or
omissions by that person in rendering the emergency care, advice, or assistance, unless the
person acts in a willful and wanton or reckless manner in providing the care, advice, or
assistance. This subdivision does not apply to a person rendering emergency care, advice,
or assistance during the course of regular employment, and receiving compensation or
expecting to receive compensation for rendering the care, advice, or assistance.

new text begin (b) Any hospital licensed under chapter 144, any employee of the hospital working
in a clinical area within the facility and providing patient care, and any person licensed
to practice medicine who in good faith renders medical care and treatment necessitated
by a sudden, unexpected situation or occurrence resulting in a serious medical condition
demanding immediate medical attention, for which the patient enters the hospital through
its emergency room or trauma center, including but not limited to medical care and
treatment rendered in an obstetrical unit, is not held liable for any civil damages as a
result of this medical care and treatment unless the damages result from providing, or
failing to provide, medical care and treatment under circumstances demonstrating gross
negligence for the consequences so as to affect the life or health of another. The immunity
from liability described in this paragraph shall not be construed to include any claim
in a civil action that is based solely on intentional denial of medical treatment that a
patient is otherwise qualified to receive, against the wishes of a patient, or, if the patient
is incompetent, against the wishes of the patient's guardian, on the basis of the patient's
present or predicted age, disability, degree of medical dependency, or quality of life.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end For the purposes of this section, the scene of an emergency is an area outside
the confines of a hospital or other institution that has hospital facilities, or an office of
a person licensed to practice one or more of the healing arts under chapter 147, 147A,
148, 150A, or 153. The scene of an emergency includes areas threatened by or exposed to
spillage, seepage, fire, explosion, or other release of hazardous materials, and includes
ski areas and trails.

deleted text begin (c) deleted text end new text begin (d) new text end For the purposes of this section, "person" includes a public or private
nonprofit volunteer firefighter, volunteer police officer, volunteer ambulance attendant,
volunteer first provider of emergency medical services, volunteer ski patroller, and any
partnership, corporation, association, or other entity.

deleted text begin (d) deleted text end new text begin (e) new text end For the purposes of this section, "compensation" does not include payments,
reimbursement for expenses, or pension benefits paid to members of volunteer
organizations.

deleted text begin (e) deleted text end new text begin (f) new text end For purposes of this section, "emergency care" includes providing emergency
medical care by using or providing an automatic external defibrillator, unless the person
on whom the device is to be used objects; or unless the person is rendering this care
during the course of regular employment, the person is receiving or expects to receive
compensation for rendering this care, and the usual and regular duties of the person
include the provision of emergency medical care. "Automatic external defibrillator"
means a medical device heart monitor and defibrillator that:

(1) has received approval of its premarket notification, filed pursuant to United States
Code, title 21, section 360(k), from the United States Food and Drug Administration;

(2) is capable of recognizing the presence or absence of ventricular fibrillation or
rapid ventricular tachycardia, and is capable of determining, without intervention by an
operator, whether defibrillation should be performed; and

(3) upon determining that defibrillation should be performed, automatically charges
and requests delivery of an electrical impulse to an individual's heart.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment
and applies to actions arising from incidents occurring on or after that date.
new text end