HF 1181

1st Engrossment - 93rd Legislature (2023 - 2024) Posted on 03/16/2023 04:23pm

A bill for an act
relating to public health; creating an open discussion process by which certain
parties of a health care adverse incident may discuss potential outcomes; proposing
coding for new law in Minnesota Statutes, chapter 145.

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

Section 1.

new text begin [145.685] COMMUNICATION AND RESOLUTION AFTER A HEALTH
CARE ADVERSE INCIDENT.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section, the following terms have
the meanings given.
new text end

new text begin (b) "Health care adverse incident" means an objective and definable outcome arising
from or related to patient care that results in the death or physical injury of a patient.
new text end

new text begin (c) "Health care provider" means a person who is licensed, certified, or registered, or
otherwise permitted by state law, to administer health care in the ordinary course of business
or in the practice of a profession and practices at a health facility.
new text end

new text begin (d) "Health facility" means a hospital or outpatient surgical center licensed under sections
144.50 to 144.56; a medical, dental, or health care clinic; a diagnostic laboratory; or a
birthing center licensed under section 144.615. The definition of health facility includes
any corporation, professional corporation, partnership, limited liability company, limited
liability partnership, or other entity comprised of health facilities or health care providers.
new text end

new text begin (e) "Open discussion" means all communications that are made during an open discussion
process under this section and includes memoranda, work product, documents, and other
materials that are prepared for or submitted in the course of or in connection with
communications made under this section. Open discussion does not include any
communication, memoranda, work product, or other materials that would otherwise be
subject to discovery and were not prepared specifically for use in an open discussion pursuant
to this section.
new text end

new text begin (f) "Patient" means a person who receives health care from a health care provider. If the
patient is under 18 years of age and is not an emancipated minor, the definition of patient
includes the patient's legal guardian or parent. If the patient is deceased or incapacitated,
the definition of patient includes the patient's legal representative.
new text end

new text begin Subd. 2. new text end

new text begin Engaging in an open discussion. new text end

new text begin (a) If a health care adverse incident occurs,
a health care provider involved in the health care adverse incident, the health facility involved
in the health care adverse incident, or both jointly may provide the patient with written
notice of their desire to enter into an open discussion with the patient to discuss potential
outcomes following a health care adverse incident in accordance with this section. A health
facility may designate a person or class of persons who has the authority to provide the
notice on behalf of the health facility. The patient involved in the health care adverse incident
may provide oral notice to the health care provider, the health facility involved in the health
care adverse incident, or both, of the patient's desire to enter into an open discussion with
either the health care provider, or the health care provider and health facility jointly, to
discuss potential outcomes following a health care adverse incident in accordance with this
section.
new text end

new text begin (b) If a health care provider or health facility decides to enter into an open discussion
as specified in this section, the written notice must be sent to the patient within 365 days
from the date the health care provider or the health facility knew, or through the use of
diligence should have known, of the health care adverse incident. The notice must include
the following:
new text end

new text begin (1) the health care provider, health facility, or both jointly desire to pursue an open
discussion in accordance with this section;
new text end

new text begin (2) the patient's right to receive a copy of the medical records related to the health care
adverse incident and the patient's right to authorize the release of the patient's medical
records related to the health care adverse incident to a third party;
new text end

new text begin (3) the patient's right to seek legal counsel and to have legal counsel present throughout
the open discussion process;
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new text begin (4) a copy of section 541.076 with notice that the time for a patient to bring a lawsuit is
limited under section 541.076 and will not be extended by engaging in an open discussion
under this section unless all parties agree in writing to an extension;
new text end

new text begin (5) that if the patient chooses to engage in an open discussion with the health care
provider, health facility, or jointly with both, all communications made during the course
of the open discussion process, including communications regarding the initiation of an
open discussion are:
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new text begin (i) privileged and confidential;
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new text begin (ii) not subject to discovery, subpoena, or other means of legal compulsion for release;
and
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new text begin (iii) not admissible as evidence in a proceeding arising directly out of the health care
adverse incident, including a judicial, administrative, or arbitration proceeding; and
new text end

new text begin (6) that any communications, memoranda, work product, documents, or other material
that are otherwise subject to discovery and not prepared specifically for use in an open
discussion under this section are not confidential.
new text end

new text begin (c) If the patient agrees to engage in an open discussion with a health care provider,
health facility, or jointly with both, the agreement must be in writing and must state that
the patient has received the notice described in paragraph (b).
new text end

new text begin (d) Upon agreement to engage in an open discussion, the patient, health care provider,
or health facility may include other persons in the open discussion process. All other persons
included in the open discussion must be advised of the parameters of communications made
during the open discussion process specified under paragraph (b), clauses (5) and (6).
new text end

new text begin (e) If a health care provider or health facility decides to engage in an open discussion,
the health care provider or health facility may:
new text end

new text begin (1) investigate how the health care adverse incident occurred, including gathering
information regarding the medical care or treatment and disclose the results of the
investigation to the patient;
new text end

new text begin (2) openly communicate to the patient the steps the health care provider or health facility
will take to prevent future occurrences of the health care adverse incident; and
new text end

new text begin (3) determine that no offer of compensation for the health care adverse incident is
warranted or that an offer of compensation for the health care adverse incident is warranted.
new text end

new text begin (f) If a health care provider or health facility determines that no offer of compensation
is warranted, the health care provider or health facility shall orally communicate that decision
to the patient.
new text end

new text begin (g) If a health care provider or a health facility determines that an offer of compensation
is warranted, the health care provider or health facility shall provide the patient with a written
offer of compensation. If an offer of compensation is made under this paragraph, and the
patient is not represented by legal counsel, the health care provider or health facility shall:
new text end

new text begin (1) advise the patient of the patient's right to seek legal counsel regarding the offer of
compensation and encourage the patient to seek legal counsel; and
new text end

new text begin (2) provide notice to the patient that the patient may be legally required to repay medical
and other expenses that were paid by a third party on the patient's behalf, including private
health insurance, Medicaid, or Medicare, along with an itemized statement from the health
provider showing all charges and third-party payments.
new text end

new text begin (h) Except for an offer of compensation made under paragraph (g), open discussions
between the health care provider or health facility and the patient about compensation shall
not be in writing.
new text end

new text begin Subd. 3. new text end

new text begin Confidentiality of open discussions and offers of compensation. new text end

new text begin (a) Open
discussion communications made under this section, including offers of compensation made
under subdivision 2:
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new text begin (1) do not constitute an admission of liability;
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new text begin (2) are privileged and confidential and shall not be disclosed;
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new text begin (3) are not admissible as evidence in any subsequent judicial, administrative, or arbitration
proceeding arising directly out of the health care adverse incident, except as provided in
paragraph (b);
new text end

new text begin (4) are not subject to discovery, subpoena, or other means of legal compulsion for release;
and
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new text begin (5) shall not be disclosed by any party in any subsequent judicial, administrative, or
arbitration proceeding arising directly out of the health care adverse incident.
new text end

new text begin (b) A party may move the court or other decision maker in a subsequent proceeding to
adjudicate the matter to admit as evidence a communication made during an open discussion
that contradicts a statement made during the proceeding. The court, or other decision maker,
shall allow a communication made during an open discussion that contradicts a statement
made at a subsequent proceeding to adjudicate the matter into evidence only if the
communication made during an open discussion is material to the claims presented in the
subsequent proceeding.
new text end

new text begin (c) Communications, memoranda, work product, documents, and other materials that
are otherwise subject to discovery and that were not prepared specifically for use in an open
discussion under this section are not confidential.
new text end

new text begin (d) The limitation on disclosure imposed by this subdivision includes disclosure during
any discovery conducted as part of a subsequent adjudicatory proceeding, and a court or
other adjudicatory body shall not compel any person who engages in an open discussion
under this section to disclose confidential communications or agreements made under this
section.
new text end

new text begin (e) This subdivision does not affect any other law, rule, or requirement with respect to
confidentiality.
new text end

new text begin Subd. 4. new text end

new text begin Payment and resolution. new text end

new text begin (a) If a patient accepts an offer of compensation
made pursuant to this section, and payment of compensation is made to a patient as a result,
the payment to the patient is not payment resulting from:
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new text begin (1) a written claim or demand for payment;
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new text begin (2) a final judgment, settlement, or arbitration award against a health care institution for
medical malpractice purposes; or
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new text begin (3) a malpractice claim settled or in which judgment is rendered against a health care
professional for purposes of reporting by malpractice insurance companies under sections
146A.03, 147.111, 147A.14, 148.102, 148.263, 148B.381, 148F.205, 150A.13, and 153.24.
new text end

new text begin (b) A health care provider or health facility may require, as a condition of an offer of
compensation made pursuant to this section, a patient to execute all documents and obtain
any necessary court approval to resolve a health care adverse incident. The parties shall
negotiate the form of the documents to be executed and obtain court approval as necessary.
new text end

new text begin Subd. 5. new text end

new text begin Sunset. new text end

new text begin This section sunsets on June 30, 2031.
new text end

new text begin Subd. 6. new text end

new text begin Applicability. new text end

new text begin This section applies only to health care adverse incidents that
occur on or after August 1, 2023.
new text end