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

                                  7526

                            I N  S E N A T E

                             April 19, 2010
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

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
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

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

                                                           LBD00978-03-0

S. 7526                             2

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.