Relating to open communications related to adverse health care incidents, including the rights of patients, health care providers, and health care facilities

This bill relates to open communications related to adverse health care incidents, including the rights of patients, health care providers, and health care facilities. Under Code chapter 135P, a health care provider, or a health care provider jointly with a health facility, may engage in an open, confidential discussion with a patient related to an adverse health care incident. Under current law, a health care provider or health care facility desiring to do so must provide notice within one year of the date of the adverse health care incident. The bill provides that the one-year limitation may be waived by the patient or patient’s legal representative by written consent. The bill provides that if a health care provider or health facility makes an offer of compensation, the health care provider or health care facility shall provide the patient with the contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy a judgment. If at the end of the discussion, the patient and health care provider or health care facility has reached an agreement for an amount equal to or less than that of the insurance policy, then the insurance carrier has days to respond in writing to the agreed-upon demand. If the insurance carrier refuses to pay and the patient receives a subsequent verdict or judgment against the health care provider or health care facility that exceeds the policy limits than the health care provider or health care facility’s consent and insurance carrier’s refusal is discoverable and admissible in any subsequent action against the insurance company for bad faith. The bill provides that if the discussion contents become discoverable, there shall be an irrebuttable presumption of bad faith against the insurer and in favor of the health care provider or health care facility. Any subsequent verdict amount against the insurer for bad faith cannot be used to increase the premium charged to the health care provider, health care facility, or health care industry as a whole. The bill does not prohibit a patient or a patient’s representative from requesting that a health care provider consider the initiation of open discussions. Upon such an inquiry, the health care provider may notify the insurance company of the inquiry. Upon receipt of the notification of the inquiry, the insurance carrier shall appoint independent legal counsel to advise the health care provider regarding the health care provider’s rights under Code chapter 135P. A failure to appoint legal counsel shall be an irrebuttable presumption of bad faith in any subsequent litigation between the health care provider and the insurance company.