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28th Legislature(2013-2014)

Bill Text 28th Legislature


00 Enrolled HB 250                                                                                                         
01 Making an expression of apology, sympathy, commiseration, compassion, or benevolence by                                 
02 a health care provider inadmissible in a medical malpractice case; requiring a health care                              
03 provider to advise a patient or the patient's legal representative to seek legal advice before                          
04 making an agreement with the patient to correct an unanticipated outcome of medical                                     
05 treatment or care; and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of                                      
06 Evidence.                                                                                                               
07                           _______________                                                                               
08    * Section 1. AS 09.55 is amended by adding new sections to read:                                                   
09            Sec. 09.55.544. Evidence. (a) In a civil action or arbitration under                                     
10       AS 09.55.530 - 09.55.560, notwithstanding AS 09.43.050(2), 09.43.420(a), or                                       
11       09.43.440(e), the following are not admissible as evidence:                                                       
12                 (1)  an expression of apology, sympathy, commiseration, compassion,                                     
13       or benevolence made orally, by conduct, or in writing by a health care provider or an                             
01       employee of a health care provider to a patient, the patient's relative, or a legal                               
02       representative of a patient concerning an unanticipated outcome of medical treatment                              
03       or care regarding the patient's discomfort, pain, suffering, injury, or death;                                    
04                 (2)  evidence of an offer made by a health care provider to a patient, the                              
05       patient's relative, or a legal representative of a patient to correct or remediate an                             
06       unanticipated outcome of medical treatment or care;                                                               
07                 (3)  evidence of conduct or statements by a health care provider to                                     
08       furnish, offer, accept, or promise to furnish or accept valuable consideration to                                 
09       compromise or attempt to compromise or settle a medical malpractice claim disputed                                
10       as to validity or amount;                                                                                         
11                 (4)  evidence of furnishing, offering, or promising to pay medical,                                     
12       hospital, or similar expenses, in full or in part, by a health care provider following an                         
13       unanticipated outcome of medical treatment or care;                                                               
14                 (5)  evidence of a health care provider requesting, demanding,                                          
15       inquiring, or directing another to write-off, offer, or promise to pay medical, hospital,                         
16       or similar expenses, in whole or in part, following an unanticipated outcome of                                   
17       medical treatment or care.                                                                                        
18            (b)  If an expression of apology, sympathy, commiseration, compassion, or                                    
19       benevolence made under (a)(1) of this section is made in conjunction with an                                      
20       admission of liability or negligence, only the expression of apology, sympathy,                                   
21       commiseration, compassion, or benevolence is inadmissible, and the admission of                                   
22       liability or negligence may be admissible as evidence.                                                            
23            (c)  This section does not apply to an offer of judgment under AS 09.30.065.                                 
24            (d)  In this section,                                                                                        
25                 (1)  "legal representative" means a legal guardian, attorney, person                                    
26       designated to make decisions on behalf of a patient under a power of attorney, or                                 
27       patient's agent;                                                                                                  
28                 (2)  "relative" means                                                                                   
29                      (A)  the spouse of the patient;                                                                    
30                      (B)  a parent, grandparent, stepparent, child, stepchild,                                          
31            grandchild, brother, sister, half brother, or half sister of the patient;                                    
01                      (C)  a parent of the patient's spouse; or                                                          
02                      (D)  an individual adopted by the patient.                                                         
03            Sec. 09.55.545. Agreement to correct unanticipated outcome or settle                                       
04       claim; legal advice. An agreement to correct an unanticipated outcome of medical                                
05       treatment or care or to settle a claim of medical malpractice made between a health                               
06       care provider and a patient or the patient's legal representative is voidable if the health                       
07       care provider has not advised the patient or the patient's legal representative in writing                        
08       that the patient or the patient's legal representative may seek legal advice.                                     
09    * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to                          
10 read:                                                                                                                   
11       INDIRECT COURT RULE AMENDMENT. AS 09.55.544, added by sec. 1 of this                                              
12 Act, has the effect of changing the following court rules in the manner specified:                                      
13            (1)  Rule 402, Alaska Rules of Evidence, by prohibiting the admission of an                                  
14 expression of apology, sympathy, commiseration, compassion, or benevolence by a health                                  
15 care provider in a medical malpractice cause of action regardless of its relevance;                                     
16            (2)  Rule 407, Alaska Rules of Evidence, by modifying the admissibility of                                   
17 evidence of subsequent remedial measures so that evidence of subsequent remedial measures                               
18 in a malpractice cause of action is not admissible for any purpose;                                                     
19            (3)  Rule 408, Alaska Rules of Evidence, by modifying the admissibility of                                   
20 evidence of compromise and offers of compromise or settlement in a medical malpractice                                  
21 cause of action so that evidence of compromise or settlement in a medical malpractice cause                             
22 of action is not admissible for any purpose;                                                                            
23            (4)  Rule 409, Alaska Rules of Evidence, by modifying the admissibility of                                   
24 evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses by                         
25 a health care provider in a medical malpractice cause of action;                                                        
26            (5)  Rule 801, Alaska Rules of Evidence, by prohibiting the admission of an                                  
27 offer of correction, remediation, or settlement by a health care provider in a medical                                  
28 malpractice cause of action.                                                                                            
29    * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to                          
30 read:                                                                                                                   
31       APPLICABILITY. AS 09.55.544 and 09.55.545, enacted by sec. 1 of this Act, apply                                   
01 to causes of action that accrue on or after the effective date of this Act.                                             
02    * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to                          
03 read:                                                                                                                   
04       CONDITIONAL EFFECT. AS 09.55.544 and 09.55.545, enacted by sec. 1 of this Act,                                    
05 take effect only if sec. 2 of this Act receives the two-thirds majority vote of each house                              
06 required by art. IV, sec. 15, Constitution of the State of Alaska.                                                      
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