1.1                          A bill for an act 
  1.2             relating to civil actions; regulating professional 
  1.3             negligence actions against health care providers; 
  1.4             providing limitations on noneconomic losses, 
  1.5             attorney's fees, and damages; providing a waiver of 
  1.6             privilege for health care providers; amending 
  1.7             Minnesota Statutes 1994, sections 549.01; 595.02, 
  1.8             subdivision 5; and 604.02, by adding a subdivision; 
  1.9             proposing coding for new law in Minnesota Statutes, 
  1.10            chapter 548. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  [548.061] [NONECONOMIC LOSSES; LIMITATION; 
  1.13  NEGLIGENCE OF A HEALTH CARE PROVIDER.] 
  1.14     (a) In an action for injury against a health care provider 
  1.15  based on professional negligence, the injured plaintiff may 
  1.16  recover noneconomic losses to compensate for pain, suffering, 
  1.17  inconvenience, physical impairment, disfigurement, and other 
  1.18  nonpecuniary damage. 
  1.19     (b) In no action may the amount of damages for noneconomic 
  1.20  losses exceed $250,000. 
  1.21     (c) For purposes of this section, "health care provider" 
  1.22  means a physician, surgeon, dentist, or other health care 
  1.23  professional or hospital, including all persons or entities 
  1.24  providing health care as defined in section 145.61, subdivisions 
  1.25  2 and 4, or a certified health care professional employed by or 
  1.26  providing services as an independent contractor in a hospital. 
  1.27     Sec. 2.  Minnesota Statutes 1994, section 549.01, is 
  1.28  amended to read: 
  2.1      549.01 [AGREEMENT AS TO FEES OF ATTORNEY.] 
  2.2      Subdivision 1.  [DEFINITIONS.] For purposes of this 
  2.3   section, "health care provider" means a physician, surgeon, 
  2.4   dentist, or other health care professional or hospital, 
  2.5   including all persons or entities providing health care as 
  2.6   defined in section 145.61, subdivisions 2 and 4, or a certified 
  2.7   health care professional employed by or providing services as an 
  2.8   independent contractor in a hospital; and "contingency fee" 
  2.9   means a fee for professional legal services that is in whole or 
  2.10  in part dependent upon the recovery of any amount of damages, 
  2.11  whether through judgment or settlement. 
  2.12     Subd. 2.  [FEES GENERALLY.] Other than as provided in 
  2.13  subdivision 3, a party shall have an unrestricted right to agree 
  2.14  with an attorney as to compensation for services, and the 
  2.15  measure and mode thereof; but certain sums may be allowed to the 
  2.16  prevailing party for expenses in an action, which are termed 
  2.17  costs.  
  2.18     Subd. 3.  [CONTINGENCY FEES; ACTIONS AGAINST A HEALTH CARE 
  2.19  PROVIDER.] (a) An attorney shall not contract for or collect a 
  2.20  contingency fee for representing a person seeking damages in 
  2.21  connection with an action for injury or damage against a health 
  2.22  care provider based upon the person's alleged professional 
  2.23  negligence in excess of the following limits: 
  2.24     (1) 40 percent of the first $50,000 recovered; 
  2.25     (2) 33-1/3 percent of the next $50,000 recovered; 
  2.26     (3) 20 percent of the next $400,000 recovered; and 
  2.27     (4) 10 percent of any amount on which the recovery exceeds 
  2.28  $500,000. 
  2.29     The limitations apply regardless of whether the recovery is 
  2.30  by settlement, arbitration, or judgment, or whether the person 
  2.31  for whom the recovery is made is a responsible adult, an infant, 
  2.32  or a person of unsound mind. 
  2.33     (b) An attorney may not receive contingency fees on any 
  2.34  portion of an award for noneconomic or punitive damages. 
  2.35     (c) In the event that the judgment or settlement includes 
  2.36  periodic or future payments of damages, the amount recovered for 
  3.1   purposes of this section is the cost of the annuity or trust 
  3.2   established to make the payments, or if there is no annuity or 
  3.3   trust, the present value of the payments. 
  3.4      Subd. 4.  [VIOLATION OF SECTION.] A fee contracted for in 
  3.5   violation of this section is void and unenforceable.  A claimant 
  3.6   affected by a violation of this section may bring an action in 
  3.7   the court in which the claim was or could have been brought, for 
  3.8   damages in the amount of three times the fee improperly 
  3.9   contracted for or collected, reasonable attorney fees, and other 
  3.10  relief to which the person may be entitled. 
  3.11     Sec. 3.  Minnesota Statutes 1994, section 595.02, 
  3.12  subdivision 5, is amended to read: 
  3.13     Subd. 5.  [WAIVER OF PRIVILEGE FOR HEALTH CARE PROVIDERS.] 
  3.14  A party who ~~commences an action~~ makes a claim or files a lawsuit 
  3.15  for malpractice, error, mistake, or failure to cure, whether 
  3.16  based on contract or tort, against a health care provider on the 
  3.17  person's own behalf or in a representative capacity, waives in 
  3.18  that action any privilege existing under subdivision 1, 
  3.19  paragraphs (d) and (g), as to any information or opinion in the 
  3.20  possession of a health care provider who has examined or cared 
  3.21  for the party or other person whose health or medical condition 
  3.22  has been placed in controversy in the action.  This waiver must 
  3.23  permit all parties to the action, and their attorneys or 
  3.24  authorized representatives, to informally discuss the 
  3.25  information or opinion with the health care provider if the 
  3.26  provider consents.  ~~Prior to an informal discussion with a~~ 
  3.27  ~~health care provider, the defendant must mail written notice to~~ 
  3.28  ~~the other party at least 15 days before the discussion.  The~~ 
  3.29  ~~plaintiff's attorney or authorized representative must have the~~ 
  3.30  ~~opportunity to be present at any informal discussion.~~  
  3.31  ~~Appropriate medical authorizations permitting discussion must be~~ 
  3.32  ~~provided by the party commencing the action upon request from~~ 
  3.33  ~~any other party.~~ 
  3.34     A health care provider may refuse to consent to the 
  3.35  discussion but, in that event, the party seeking the information 
  3.36  or opinion may take the deposition of the health care provider 
  4.1   with respect to that information and opinion, without obtaining 
  4.2   a prior court order. 
  4.3      For purposes of this subdivision, "health care provider" 
  4.4   means a physician, surgeon, dentist, or other health care 
  4.5   professional or hospital, including all persons or entities 
  4.6   providing health care as defined in section 145.61, subdivisions 
  4.7   2 and 4, or a certified health care professional employed by or 
  4.8   providing services as an independent contractor in a hospital. 
  4.9      Sec. 4.  Minnesota Statutes 1994, section 604.02, is 
  4.10  amended by adding a subdivision to read: 
  4.11     Subd. 4.  [APPORTIONMENT OF DAMAGES; MEDICAL 
  4.12  MALPRACTICE.] Notwithstanding subdivisions 1 to 3, for purposes 
  4.13  of medical malpractice actions, when two or more persons are 
  4.14  jointly liable, contributions to awards must be in proportion to 
  4.15  the percentage of fault attributable to each. 
  4.16     Sec. 5.  [EFFECTIVE DATE; APPLICATION.] 
  4.17     Sections 1 to 4 are effective August 1, 1995, and apply to 
  4.18  actions commenced on or after that date.