By: Strama H.B. No. 2837

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of a full disclosure protocol for hospitals.

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

SECTION 1. DEFINITIONS. In this Act:

(a) "Civil or administrative proceeding" includes a health care liability claim, an arbitration or mediation relating to a health care liability claim, or a licensing proceeding.

(b) "Communication" means:

(1) an oral statement;

(2) a writing; or

(3) a gesture.

(c) "Health care provider," "health care liability claim," and "physician" have the meanings assigned by Section 74.001, Civil Practice and Remedies Code.

(d) "Patient's representative" means:

(1) a person related to a patient within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; or

(2) a legal guardian, an attorney, or a person legally authorized to make health care decisions for a patient.

(e) "Covered event" means any event that caused unanticipated harm to the patient, including that which resulted from a medical error, while the patient was receiving care at or through a hospital that was participating in the full disclosure protocol pilot program at the time of the event.

(f) "Affiliated provider" with respect to any hospital participating in the full disclosure protocol pilot program means any health care provider, including a physician, who is a member of the hospital's medical staff or who holds clinical privileges to practice at the hospital, or who is an independent contractor of the hospital.

SECTION 2. FULL DISCLOSURE PROTOCOL PILOT PROGRAM. (a) The full disclosure protocol pilot program is a program established to promote the use of a full disclosure protocol in hospitals.

(b) A hospital participating in the pilot program:

(1) shall adopt a policy of prompt and complete disclosure to patients or patients' representatives of any occurrence of a covered event;

(2) shall include in such disclosures, or in subsequent discussions about a covered event:

(A) an explanation of the event; and

(B) an acknowledgement of fault, if appropriate; and

(C) an explanation of the steps the hospital is taking to prevent a similar event from occurring in the future, if appropriate;

(3) shall encourage the patient or patient's representative to retain legal counsel if an offer of fair compensation is made in connection with the covered event, at the time that the offer is made;

(4) shall require that all hospital employees and affiliated providers must adhere to this policy;

(5) shall provide notice to all hospital employees and affiliated providers that:

(A) the hospital has adopted this policy; and

(B) that by adopting this policy, the hospital and all hospital employees and affiliated providers have obtained the protection conferred by Section 5 of this Act;

(6) shall provide notice to patients that the hospital has adopted this policy;

(7) shall refer all covered events to the hospital's existing peer review, quality improvement, or performance improvement process, as applicable; and

(8) shall track the financial impact of the program, and collect other information about the impact of the program to share with the Department of State Health Services.

SECTION 3. ADMINISTRATION. The Department of State Health Services shall:

(1) develop, implement, and oversee the full disclosure protocol pilot program;

(2) communicate with hospitals that are interested in participating in the program; and

(3) develop standards and guidelines to compare costs for health care liability claims handled by traditional means with costs for those cases handled under the full disclosure protocol pilot program.

SECTION 4. PARTICIPATION. (a) A hospital may participate in the full disclosure protocol pilot program only if the senior administrator of the hospital signs an affidavit committing the hospital to the policy outlined in Section 2(b), and files that affidavit with the Department of State Health Services.

(b) The Department of State Health Services shall designate each hospital participating in the full disclosure protocol pilot program in writing, certifying that an affidavit as specified in Section 4(a) has been received from the participating hospital, and that, by filing such an affidavit, the participating hospital has obtained the privilege of confidentiality conferred by Section 5 of this Act. The determination of the Department of State Health Services on this issue shall be final and conclusive. The designation expires September 1, 2011.

(c) A hospital that has been designated for participation in the full disclosure protocol pilot program may discontinue participation in the program by filing a notification of discontinuation with the Department of State Health Services and by providing notice of the discontinuation to all hospital employees and affiliated providers. A discontinuation in the program by a hospital does not affect the admissibility in a civil or administrative proceeding of a communication described by Section 5 of this Act.

(d) A hospital's insurer may require the hospital to enter into an agreement with the insurer in order to participate in the program if the insurer determines such an agreement is required under the terms of the hospital's insurance agreements.

SECTION 5. INADMISSIBILITY OF COMMUNICATIONS OF SYMPATHY, APOLOGY, FAULT, OR EXPLANATION.

(a) A communication that expresses sympathy, regret, compassion, a general sense of benevolence, apology, or fault relating to the pain, suffering, or death of an individual is not discoverable and is not admissible in a civil or administrative proceeding if:

(1) the communication is made in connection with a covered event, or made to explain the occurrence of a covered event; and

(2) the communication is made by an employee or other representative of the hospital, or by an affiliated provider; and

(3) the communication is made to the individual, to a person related to the individual within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code, or to a legal representative of the individual; and

(4) the communication is offered to prove liability, in relation to the individual, of a hospital that participates in the full disclosure protocol pilot program in accordance with Section 4(a) of this Act, or any of such hospital's employees, affiliated providers, officers, directors, or trustees.

(b) Neither the hospital nor any of its employees, officers, directors, trustees, or affiliated providers shall be deemed to have waived any privilege that may apply to any of the information that is disclosed by making a communication as described by this Section.

(c) Any communication made by the patient or the patient's representative at any meeting covered by the full disclosure protocol is also not admissible in any civil or administrative proceeding.

(d) The protection conferred in this section extends only to the discoverability or admissibility of the communications described in Subsection (a) and Subsection (c), and not to the underlying covered event.

SECTION 6. REPORTING. (a) Not later than August 1 of each year in which the full disclosure protocol pilot program is in operation, the Department of State Health Services shall submit a report detailing the status of the program to the governor, the lieutenant governor, and the speaker of the house of representatives. The report may include:

(1) the number of participating hospitals;

(2) the number of covered events disclosed;

(3) the effect of the full disclosure protocol on patient satisfaction;

(4) the effect of the full disclosure protocol on patient safety and injury;

(5) the financial impact of the full disclosure protocol; and

(6) a summary of the problems or barriers to implementation from the hospitals' perspective.

(b) By September 1, 2009, and again by September 1, 2011, a participating hospital shall publish a report containing the results of the hospital's use of a full disclosure protocol under the program, and will share all data relevant to that report or collected in accordance with Section 2(b) of this Act, with the Department of State Health Services. At a minimum, this report shall include:

(1) the number of covered events disclosed;

(2) the effect of the full disclosure protocol on patient satisfaction;

(3) the effect of the full disclosure protocol on patient safety and injury;

(4) the financial impact of the full disclosure protocol, including:

(A) health care liability or other related costs;

(B) legal defense costs; and

(C) settlements or judgments awarding damages to patients;

(5) a summary profile of the types and frequency of events being disclosed; and

(6) a summary of problems or barriers to implementation from the hospital's perspective.

(c) The Department of State Health Services shall make public all data collected under Section 6(b) of this Act for the purpose of studying the results of the full disclosure protocol pilot program.

SECTION 7. PRIVATE RIGHT OF ACTION. This Act does not create a private right of action or establish a standard of care.

SECTION 8. TRANSITION. The expiration of Sections 1-9 of this Act and the termination of the full disclosure protocol pilot program do not affect the admissibility in a civil or administrative proceeding of a communication described by Section 5 of this Act.

SECTION 9. EXPIRATION. Sections 1-8 of this Act expire and the full disclosure protocol pilot program is terminated September 1, 2011.

SECTION 10. EFFECTIVE DATE. This Act takes effect September 1, 2007.