Assembly Bill A1673

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1673--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by M. of A. GOTTFRIED, GANTT, MAGNARELLI, MAYERSOHN, McENENY,
  PAULIN,  PERRY,  POWELL, GALEF -- Multi-Sponsored by -- M. of A. BREN-
  NAN, COLTON, DINOWITZ, HOOPER, JACOBS, J. MILLER, PHEFFER,  WEINSTEIN,
  WRIGHT  -- read once and referred to the Committee on Health -- recom-
  mitted to the Committee on Health in accordance with Assembly Rule  3,
  sec. 2 -- reported and referred to the Committee on Codes -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to amend the public health law, in relation to requiring health
  care providers to inform patients or their representatives of  certain
  errors in diagnosis, treatment or other services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings. The legislature finds that the Ameri-
can Medical Association (AMA) has expressed its support  for  physicians
providing  full  disclosure  to  their  patients regarding their medical
treatments and conditions. The AMA's council  on  ethical  and  judicial
affairs  has  stated:  "It  is  a fundamental ethical requirement that a
physician should at all times deal honestly and  openly  with  patients.
Patients  have a right to know their past and present medical status and
to be free of any mistaken beliefs concerning their conditions.    Situ-
ations occasionally occur in which a patient suffers significant medical
complications  that  may  have  resulted from the physician's mistake or
judgment. In these situations, the physician is  ethically  required  to
inform the patient of all the facts necessary to ensure understanding of
what  has  occurred.  Only  through full disclosure is a patient able to
make informed decisions regarding future medical care."   The AMA  adds:
"Concern regarding legal liability which might result following truthful
disclosure  should  not  affect the physician's honesty with a patient."
(code of medical ethics: current opinions of the council on ethical  and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD00978-02-0

A. 1673--A                          2

judicial  affairs,  AMA  Policy Finder, E-8.12, updated June, 1994.) The
legislature further finds that this ethical mandate ought  to  have  the
support  of  law,  and ought to apply not only to physicians, but to all
health care providers.
  S  2.  The public health law is amended by adding a new section 2805-u
to read as follows:
  S 2805-U. HEALTH CARE PROVIDER; DUTY TO INFORM PATIENT OF ERROR.    1.
DEFINITION.  AS  USED  IN  THIS SECTION, "HEALTH CARE PROVIDER" MEANS AN
ENTITY LICENSED OR CERTIFIED UNDER THIS ARTICLE OR ARTICLE THIRTY-SIX OF
THIS CHAPTER OR UNDER ARTICLE THIRTY-ONE OR  THIRTY-TWO  OF  THE  MENTAL
HYGIENE  LAW,  A HEALTH CARE PRACTITIONER LICENSED, REGISTERED OR CERTI-
FIED UNDER TITLE EIGHT OF THE EDUCATION LAW, OR A PROVIDER OF PHARMACEU-
TICAL PRODUCTS OR SERVICES OR DURABLE MEDICAL EQUIPMENT.
  2. A HEALTH CARE PROVIDER SHALL DISCLOSE TO HIS, HER, OR  ITS  PATIENT
OR  THE  PATIENT'S  REPRESENTATIVE, ANY ERROR IN DIAGNOSIS, TREATMENT OR
OTHER SERVICE BY THE HEALTH CARE PROVIDER THAT THE HEALTH CARE  PROVIDER
KNOWS  HAS  CAUSED  SUBSTANTIAL  HARM OR SIGNIFICANT RISK OF SUBSTANTIAL
HARM TO THE PATIENT. THERE SHALL BE A REBUTTABLE  PRESUMPTION  THAT  THE
HEALTH CARE PROVIDER KNEW OF SUCH ERROR AND OF SUCH HARM OR RISK OF HARM
IF,  UNDER THE CIRCUMSTANCES, THE HEALTH CARE PROVIDER REASONABLY SHOULD
HAVE HAD KNOWLEDGE THEREOF.  THE  DISCLOSURE  SHALL  BE  MADE  WITHIN  A
REASONABLE  PERIOD  OF  TIME  AND  BE  REASONABLY  UNDERSTANDABLE TO THE
PATIENT OR THE PATIENT'S REPRESENTATIVE, AND SHALL INCLUDE  A  STATEMENT
OF THE HARM OR RISK OF HARM.
  3.  A HEALTH CARE PROVIDER SHALL NOT BE LIABLE FOR FAILURE TO DISCLOSE
AN ERROR, HARM OR RISK OF HARM UNDER THIS SECTION  IF  THE  HEALTH  CARE
PROVIDER  REASONABLY BELIEVES THAT SUCH DISCLOSURE HAS ALREADY BEEN MADE
BY ANOTHER HEALTH CARE PROVIDER.
  S 3. This act shall take effect immediately.