S T A T E O F N E W Y O R K
________________________________________________________________________
655
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. GOTTFRIED, GANTT, MAGNARELLI, MAYERSOHN, McENENY,
PAULIN, PERRY, GALEF -- Multi-Sponsored by -- M. of A. BRENNAN,
COLTON, DINOWITZ, HOOPER, JACOBS, J. MILLER, PHEFFER, WRIGHT -- read
once and referred 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02351-01-1
A. 655 2
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.