SF 2385

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to civil law; reforming medical malpractice 
  1.3             liability; proposing coding for new law in Minnesota 
  1.4             Statutes, chapters 147; 604. 
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [147.37] [BEST PRACTICE GUIDELINES; USE IN 
  1.7   MEDICAL MALPRACTICE CASES.] 
  1.8      (a) In an action against a provider for malpractice, error, 
  1.9   mistake, or failure to cure, whether based in contract or tort, 
  1.10  adherence to a best practice guideline approved by either a 
  1.11  recognized specialty organization or an organization established 
  1.12  for the purpose of developing community-based clinical practice 
  1.13  guidelines is an absolute defense against an allegation that the 
  1.14  provider did not comply with accepted standards of practice in 
  1.15  the community. 
  1.16     (b) Evidence of a departure from a best practice guideline 
  1.17  is admissible only on the issue of whether the provider is 
  1.18  entitled to an absolute defense under paragraph (a). 
  1.19     (c) Paragraphs (a) and (b) apply to claims arising on or 
  1.20  after August 1, 2004. 
  1.21     (d) Nothing in this section changes the standard or burden 
  1.22  of proof in an action alleging a delay in diagnosis, a 
  1.23  misdiagnosis, inappropriate application of a best practice 
  1.24  guideline, failure to obtain informed consent, battery or other 
  1.25  intentional tort, or product liability. 
  2.1      Sec. 2.  [604.111] [HEALTH CARE PROVIDER ACTIONS; LIMITS ON 
  2.2   DAMAGES AND ATTORNEY FEES.] 
  2.3      Subdivision 1.  [DEFINITIONS.] (a) For the purposes of this 
  2.4   section, the terms in paragraphs (b) to (d) have the meanings 
  2.5   given them. 
  2.6      (b) "Economic loss" means all harm for which damages are 
  2.7   recoverable, other than noneconomic losses. 
  2.8      (c) "Health care provider" has the meaning given in section 
  2.9   541.076, paragraph (a), except that health care provider also 
  2.10  includes a physician assistant registered under chapter 147A and 
  2.11  ambulance services, medical directors, and personnel regulated 
  2.12  under chapter 144E. 
  2.13     (d) "Noneconomic loss" means all nonpecuniary harm for 
  2.14  which damages are recoverable, including, but not limited to, 
  2.15  pain, disability, disfigurement, embarrassment, emotional 
  2.16  distress, and loss of consortium.  
  2.17     Subd. 2.  [LIMITATIONS.] (a) In an action for injury or 
  2.18  death against a health care provider alleging malpractice, 
  2.19  error, mistake, or failure to cure, whether based in contract or 
  2.20  tort, the amount of damages awarded for noneconomic losses must 
  2.21  not exceed $250,000, regardless of the number of parties against 
  2.22  whom the action is brought or the number of separate claims or 
  2.23  actions brought with respect to the same occurrence. 
  2.24     (b) The limitation imposed by this subdivision must not be 
  2.25  disclosed to the trier of fact by any person at trial. 
  2.26     Subd. 3.  [FINDINGS.] (a) A court in an action tried 
  2.27  without a jury shall make a finding as to noneconomic loss 
  2.28  without regard to the limit under subdivision 2.  If noneconomic 
  2.29  loss in excess of the limit is found, the court shall make any 
  2.30  reduction required under this section and shall award as damages 
  2.31  for noneconomic loss the lesser of the reduced amount or the 
  2.32  limit.  
  2.33     (b) If an action is before a jury, the jury shall make a 
  2.34  finding as to noneconomic loss without regard to the limit under 
  2.35  subdivision 2.  If the jury finds that noneconomic loss exceeds 
  2.36  the limit, the court shall make any reduction required under 
  3.1   this section and shall award as damages for noneconomic loss the 
  3.2   lesser of the reduced amount or the limit. 
  3.3      Subd. 4.  [PUNITIVE DAMAGES LIMITED.] (a) Punitive, 
  3.4   exemplary, and similar damages recoverable against a health care 
  3.5   provider in a cause of action described in subdivision 2 must 
  3.6   not exceed $250,000.  The jury must not be informed of this 
  3.7   limitation. 
  3.8      (b) All damages described in paragraph (a) must be paid 
  3.9   directly to the Minnesota Comprehensive Health Association 
  3.10  created under section 62E.10, subdivision 1, to be used for the 
  3.11  purpose of reducing its assessments on its members.  
  3.12     Subd. 5.  [EXCESSIVE ATTORNEY FEES PROHIBITED.] (a) 
  3.13  Attorney fees payable by a plaintiff in any cause of action 
  3.14  referred to in subdivision 2 must not exceed the following 
  3.15  percentage of damages: 
  3.16     (1) 40 percent of the first $50,000; 
  3.17     (2) 33-1/3 percent of the next $50,000; 
  3.18     (3) 25 percent of the next $500,000; plus 
  3.19     (4) 15 percent of that portion of damages that exceeds 
  3.20  $600,000. 
  3.21     (b) This subdivision applies to the net damages actually 
  3.22  recovered by that plaintiff under the cause of action, whether 
  3.23  through settlement, alternative dispute resolution, court 
  3.24  judgment, or otherwise.  "Net damages actually recovered" means 
  3.25  the net sum recovered after deducting any disbursements or costs 
  3.26  incurred in connection with prosecution or settlement of the 
  3.27  claim, including all costs paid or advanced by any person.  
  3.28  Costs of health care incurred by the plaintiff and the 
  3.29  attorney's office overhead costs or charges for legal services 
  3.30  are not deductible disbursements of costs for such purpose. 
  3.31     (c) A fee agreement that violates this subdivision is void 
  3.32  and unenforceable, to the extent of the violation. 
  3.33     Subd. 6.  [NONPROFIT HOSPITALS; DAMAGES LIMIT.] (a) With 
  3.34  respect to a cause of action described in subdivision 2, the 
  3.35  limitations on damages provided in section 466.04 apply to 
  3.36  damages recoverable from any private, nonprofit hospital 
  4.1   licensed under sections 144.50 to 144.56 that is incorporated 
  4.2   under chapter 317A. 
  4.3      (b) All other provisions of this section apply with respect 
  4.4   to hospitals described in paragraph (a), except as otherwise 
  4.5   provided in section 466.04. 
  4.6      Sec. 3.  [EFFECTIVE DATE; APPLICATION.] 
  4.7      Section 2 is effective August 1, 2004, and applies to 
  4.8   causes of actions arising from incidents occurring on or after 
  4.9   that date.