SF 432

as introduced - 87th Legislature (2011 - 2012) Posted on 02/23/2012 08:49am

A bill for an act
relating to civil actions; reforming medical malpractice liability; proposing
coding for new law in Minnesota Statutes, chapters 147; 604.

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

Section 1.

new text begin [147.38] BEST PRACTICE GUIDELINES; USE IN MEDICAL
MALPRACTICE CASES.
new text end

new text begin (a) In an action against a provider for malpractice, error, mistake, or failure to cure,
whether based in contract or tort, adherence to a best practice guideline approved by either
a recognized specialty organization or an organization established for the purpose of
developing community-based clinical practice guidelines is an absolute defense against
an allegation that the provider did not comply with accepted standards of practice in the
community. This paragraph does not apply if the best practice guideline authorizes or
recommends denial of treatment, food, or fluids necessary to sustain life on the basis of
the patient's age or expected length of life or the patient's present or predicted disability,
degree of medical dependency, or quality of life.
new text end

new text begin (b) Evidence of a departure from a best practice guideline is admissible only on the
issue of whether the provider is entitled to an absolute defense under paragraph (a).
new text end

new text begin (c) Nothing in this section changes the standard or burden of proof in an action
alleging a delay in diagnosis, a misdiagnosis, inappropriate application of a best practice
guideline, failure to obtain informed consent, battery or other intentional tort, or product
liability.
new text end

Sec. 2.

new text begin [604.111] HEALTH CARE PROVIDER ACTIONS; LIMITS ON
DAMAGES AND ATTORNEY FEES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section, the terms in
paragraphs (b) through (d) have the meanings given them.
new text end

new text begin (b) "Economic loss" means all harm for which damages are recoverable, other
than noneconomic losses.
new text end

new text begin (c) "Health care provider" has the meaning given in section 541.076, paragraph
(a), except that health care provider also includes a physician assistant registered under
chapter 147A and ambulance services, medical directors, and personnel regulated under
chapter 144E.
new text end

new text begin (d) "Noneconomic loss" means all nonpecuniary harm for which damages are
recoverable, including, but not limited to, pain, disability, disfigurement, embarrassment,
emotional distress, and loss of consortium.
new text end

new text begin Subd. 2. new text end

new text begin Limitation. new text end

new text begin (a) In an action for injury or death against a health care
provider alleging malpractice, error, mistake, or failure to cure, whether based in contract
or tort, the amount of damages awarded for noneconomic losses must not exceed
$250,000, regardless of the number of parties against whom the action is brought or the
number of separate claims or actions brought with respect to the same occurrence.
new text end

new text begin (b) The limitation imposed by this subdivision must not be disclosed to the trier of
fact by any person at trial.
new text end

new text begin Subd. 3. new text end

new text begin Findings. new text end

new text begin (a) A court in an action tried without a jury shall make a finding
as to noneconomic loss without regard to the limit under subdivision 2. If noneconomic
loss in excess of the limit is found, the court shall make any reduction required under
this section, and shall award as damages for noneconomic loss the lesser of the reduced
amount or the limit.
new text end

new text begin (b) If an action is before a jury, the jury shall make a finding as to noneconomic loss
without regard to the limit under subdivision 2. If the jury finds that noneconomic loss
exceeds the limit, the court shall make any reduction required under this section and shall
award as damages for noneconomic loss the lesser of the reduced amount or the limit.
new text end

new text begin Subd. 4. new text end

new text begin Punitive damages limited. new text end

new text begin (a) Punitive, exemplary, and similar damages
recoverable against a health care provider in a cause of action described in subdivision 2
must not exceed $250,000. The jury must not be informed of this limitation.
new text end

new text begin (b) All damages described in paragraph (a) must be paid directly to the Minnesota
Comprehensive Health Association created under section 62E.10, subdivision 1, to be
used for the purpose of reducing its assessments on its members.
new text end

new text begin (c) Notwithstanding paragraph (a), a private nonprofit hospital licensed under
sections 144.50 to 144.56 is not liable for punitive, exemplary, or similar damages in an
action described in subdivision 2.
new text end

new text begin Subd. 5. new text end

new text begin Excessive attorney fees prohibited. new text end

new text begin (a) Attorney fees payable by a
plaintiff in a cause of action referred to in subdivision 2 must not exceed the following
percent of damages:
new text end

new text begin (1) 40 percent of the first $50,000;
new text end

new text begin (2) 33-1/3 percent of the next $50,000;
new text end

new text begin (3) 25 percent of the next $500,000; plus
new text end

new text begin (4) 15 percent of that portion of damages that exceeds $600,000.
new text end

new text begin (b) This subdivision applies to the net damages actually recovered by that plaintiff
under the cause of action, whether through settlement, alternative dispute resolution, court
judgment, or otherwise. "Net damages actually recovered" means the net sum recovered
after deducting any disbursements or costs incurred in connection with prosecution or
settlement of the claim, including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorney's office overhead costs or charges for
legal services are not deductible disbursements of costs for such purpose.
new text end

new text begin (c) A fee agreement that violates this subdivision is void and unenforceable, to
the extent of the violation.
new text end

new text begin Subd. 6. new text end

new text begin Intentional discriminatory denial of treatment. new text end

new text begin Except for the purposes
of subdivision 5, an action described in subdivision 2 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

new text begin EFFECTIVE DATE. new text end

new text begin Sections 1 and 2 are effective August 1, 2011, and apply to
causes of actions arising from incidents occurring on or after that date.
new text end