Connecticut Seal

General Assembly

 

Raised Bill No. 222

February Session, 2010

 

LCO No. 1181

 

*01181_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING COMPLAINTS PENDING IN THE DEPARTMENT OF PUBLIC HEALTH AGAINST PHYSICIANS AND CERTAIN OTHER HEALTH CARE PROVIDERS AND ESTABLISHING A MEDIATION PROGRAM FOR MEDICAL MALPRACTICE ACTIONS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 19a-14 of the 2010 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) The Department of Public Health shall have the following powers and duties with regard to the boards and commissions listed in subsection (b) of this section which are within the Department of Public Health. The department shall:

(1) Control the allocation, disbursement and budgeting of funds appropriated to the department for the operation of the boards and commissions;

(2) Employ and assign such personnel as the commissioner deems necessary for the performance of the functions of the boards and commissions;

(3) Perform all management functions including purchasing, bookkeeping, accounting, payroll, secretarial, clerical and routine housekeeping functions;

(4) Adopt, with the advice and assistance of the appropriate board or commission, and in accordance with chapter 54, any regulations which are consistent with protecting the public health and safety and which are necessary to implement the purposes of subsection (a) of section 2c-2b, this chapter, and chapters 368v, 369 to 375, inclusive, 378 to 381, inclusive, 383 to 388, inclusive, 398 and 399;

(5) Develop and perform all administrative functions necessary to process applications for licenses and certificates;

(6) Determine the eligibility of all applicants for permits, licensure, certification or registration, based upon compliance with the general statutes and administrative regulations. The department may deny the eligibility of an applicant for a permit or for licensure by examination, endorsement, reciprocity or for reinstatement of a license voided pursuant to subsection (f) of section 19a-88, or may issue a license pursuant to a consent order containing conditions that must be met by the applicant if the department determines that the applicant:

(A) Has failed to comply with the general statutes and administrative regulations governing [his] the applicant's profession;

(B) Has been found guilty or convicted as a result of an act which constitutes a felony under (i) the laws of this state, (ii) federal law or (iii) the laws of another jurisdiction and which, if committed within this state, would have constituted a felony under the laws of this state;

(C) Is subject to a pending disciplinary action or unresolved complaint before the duly authorized professional disciplinary agency of any state, the District of Columbia, a United States possession or territory, or a foreign jurisdiction;

(D) Has been subject to disciplinary action similar to an action specified in subsection (a) of section 19a-17 by a duly authorized professional disciplinary agency of any state, the District of Columbia, a United States possession or territory, or a foreign jurisdiction;

(E) Has committed an act which, if the applicant were licensed, would not conform to the accepted standards of practice of the profession, including, but not limited to, incompetence, negligence, fraud or deceit; illegal conduct; procuring or attempting to procure a license, certificate or registration by fraud or deceit; or engaging in, aiding or abetting unlicensed practice of a regulated profession, provided the commissioner, or [his] the commissioner's designee, gives notice and holds a hearing, in accordance with the provisions of chapter 54, prior to denying an application for a permit or a license based on this subparagraph; or

(F) Has a condition which would interfere with the practice of [his] the applicant's profession, including, but not limited to, physical illness or loss of skill or deterioration due to the aging process, emotional disorder or mental illness, abuse or excessive use of drugs or alcohol, provided the commissioner, or [his] the commissioner's designee, gives notice and holds a hearing in accordance with the provisions of chapter 54, prior to denying an application for a permit or a license based on this subparagraph;

(7) Administer licensing examinations under the supervision of the appropriate board or commission;

(8) Develop and perform all administrative functions necessary to process complaints against persons licensed by the department;

(9) Consent to the approval or disapproval by the appropriate boards or commissions of schools at which educational requirements shall be met;

(10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the Commissioner of Public Health or [said] the commissioner's authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the Superior Court may make such order as may be appropriate to aid in the enforcement of this section;

(11) Conduct any necessary investigation and follow-up in connection with complaints regarding persons subject to regulation or licensing by the department;

(12) With respect to any complaint filed with the department on or after October 1, 2010, alleging incompetence, negligence, fraud or deceit by a person subject to regulation or licensing by any board or commission described in subdivision (1) to (5), inclusive, (7), (8), (12) to (14), inclusive, or (16) of subsection (b) of this section:

(A) Upon request of the person who filed the complaint, provide such person with information on the status of the complaint;

(B) Upon request of the person who filed the complaint, provide such person with an opportunity to review, at the department, records compiled as of the date of the request pursuant to any investigation of the complaint, including, but not limited to, the respondent's written response to the complaint, except that such person shall not be entitled to copy such records and the department (i) shall not disclose (I) information concerning a health care professional's referral to, participation in or completion of an assistance program in accordance with sections 19a-12a and 19a-12b, that is confidential pursuant to section 19a-12a, (II) information not related to such person's specific complaint, including, but not limited to, information concerning patients other than such person, or (III) personnel or medical records and similar files the disclosure of which would constitute an invasion of personal privacy pursuant to section 1-210, except for such records or similar files solely related to such person; (ii) shall not be required to disclose any other information that is otherwise confidential pursuant to federal law or state statute, except for information solely related to such person; and (iii) may require up to ten business days written notice prior to providing such opportunity for review;

(C) Prior to resolving the complaint with a consent order, provide the person who filed the complaint with not less than ten business days to submit a written statement as to whether such person objects to resolving the complaint with a consent order;

(D) If a hearing is held with respect to such complaint after a finding of probable cause, provide the person who filed the complaint with a copy of the notice of hearing issued pursuant to section 4-177, which shall include information concerning the opportunity to present oral or written statements pursuant to subsection (b) of section 4-177c; and

(E) Notify the person who filed the complaint of the final disposition of such complaint not later than seven business days after such final disposition;

[(12)] (13) Perform any other function necessary to the effective operation of a board or commission and not specifically vested by statute in the board or commission;

[(13)] (14) Contract with a third party, if the commissioner deems necessary, to administer licensing examinations and perform all attendant administrative functions in connection with such examination.

(b) The department shall have the powers and duties indicated in subsection (a) of this section with regard to the following professional boards and commissions:

(1) The Connecticut Medical Examining Board, established under section 20-8a;

(2) The Connecticut State Board of Examiners for Optometrists, established under subsections (a) to (c), inclusive, of section 20-128a;

(3) The Connecticut State Board of Examiners for Nursing, established under section 20-88;

(4) The Dental Commission, established under section 20-103a;

(5) The Board of Examiners of Psychologists, established under section 20-186;

(6) The Connecticut Board of Veterinary Medicine, established under section 20-196;

(7) The Connecticut Homeopathic Medical Examining Board, established under section 20-8;

(8) The Connecticut State Board of Examiners for Opticians, established under subsections (a) to (c), inclusive, of section 20-139a;

(9) The Connecticut State Board of Examiners for Barbers and Hairdressers and Cosmeticians, established under section 20-235a;

(10) The Connecticut Board of Examiners of Embalmers and Funeral Directors established under section 20-208;

(11) Repealed by P.A. 99-102, S. 51;

(12) The State Board of Natureopathic Examiners, established under section 20-35;

(13) The State Board of Chiropractic Examiners, established under section 20-25;

(14) The Connecticut Board of Examiners in Podiatry, established under section 20-51;

(15) The Board of Examiners of Electrologists, established under section 20-268; and

(16) The Connecticut State Board of Examiners for Physical Therapists.

(c) No board shall exist for the following professions that are licensed or otherwise regulated by the Department of Public Health:

(1) Speech and language pathologist and audiologist;

(2) Hearing instrument specialist;

(3) Nursing home administrator;

(4) Sanitarian;

(5) Subsurface sewage system installer or cleaner;

(6) Marital and family therapist;

(7) Nurse-midwife;

(8) Licensed clinical social worker;

(9) Respiratory care practitioner;

(10) Asbestos contractor and asbestos consultant;

(11) Massage therapist;

(12) Registered nurse's aide;

(13) Radiographer;

(14) Dental hygienist;

(15) Dietitian-Nutritionist;

(16) Asbestos abatement worker;

(17) Asbestos abatement site supervisor;

(18) Licensed or certified alcohol and drug counselor;

(19) Professional counselor;

(20) Acupuncturist;

(21) Occupational therapist and occupational therapist assistant;

(22) Lead abatement contractor, lead consultant contractor, lead consultant, lead abatement supervisor, lead abatement worker, inspector and planner-project designer;

(23) Emergency medical technician, advanced emergency medical technician, emergency medical responder and emergency medical services instructor;

(24) Paramedic;

(25) Athletic trainer;

(26) Perfusionist; and

(27) On and after July 1, 2011, a radiologist assistant, subject to the provisions of section 20-74tt.

The department shall assume all powers and duties normally vested with a board in administering regulatory jurisdiction over such professions. The uniform provisions of this chapter and chapters 368v, 369 to 381a, inclusive, 383 to 388, inclusive, 393a, 395, 398, 399, 400a and 400c, including, but not limited to, standards for entry and renewal; grounds for professional discipline; receiving and processing complaints; and disciplinary sanctions, shall apply, except as otherwise provided by law, to the professions listed in this subsection.

(d) Except as provided in section 20-13e, as amended by this act, all records obtained by the department in connection with any investigation of a person or facility over which the department has jurisdiction under this chapter, other than a physician as defined in subdivision (5) of section 20-13a, shall not be subject to disclosure under section 1-210 for a period of one year from the date of the petition or other event initiating such investigation, or until such time as the investigation is terminated pursuant to a withdrawal or other informal disposition or until a hearing is convened pursuant to chapter 54, whichever is earlier. A complaint, as defined in subdivision (6) of section 19a-13, shall be subject to the provisions of section 1-210 from the time that it is served or mailed to the respondent. Records [which] that are otherwise public records shall not be deemed confidential merely because they have been obtained in connection with an investigation under this chapter. Records disclosed to a person who files a complaint pursuant to subdivision (12) of subsection (a) of this section that are otherwise confidential shall not be deemed public records merely because they have been disclosed pursuant to said subdivision (12).

Sec. 2. Section 20-13e of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) The department shall investigate each petition filed pursuant to section 20-13d, in accordance with the provisions of [subdivision] subdivisions (10) and (11) of subsection (a) of section 19a-14, as amended by this act, to determine if probable cause exists to issue a statement of charges and to institute proceedings against the physician under subsection (d) of this section. Such investigation shall be concluded not later than eighteen months from the date the petition is filed with the department and, unless otherwise specified by this subsection, the record of such investigation shall be deemed a public record, in accordance with section 1-210, at the conclusion of such eighteen-month period. Any such investigation shall be confidential and no person shall disclose his knowledge of such investigation to a third party unless the physician requests that such investigation and disclosure be open, except that the department shall provide information to the person who filed the complaint pursuant to subdivision (12) of subsection (a) of section 19a-14, as amended by this act. If the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in [a rehabilitation] an assistance program in accordance with the provisions of sections 19a-12a and 19a-12b. The petition and all records of any physician determined to be eligible for participation in [a rehabilitation] an assistance program prior to June 11, 2007, shall remain confidential during the physician's participation and upon successful completion of the [rehabilitation] assistance program, in accordance with the terms and conditions agreed upon by the physician and the department. If at any time subsequent to the filing of a petition and during the eighteen-month period, the department makes a finding of no probable cause, the petition and the entire record of such investigation shall remain confidential, except as provided in subdivision (12) of subsection (a) of section 19a-14, as amended by this act, unless the physician requests that such petition and record be open.

(b) As part of an investigation of a petition filed pursuant to subsection (a) of section 20-13d, the Department of Public Health may order the physician to submit to a physical or mental examination, to be performed by a physician chosen from a list approved by the department. The department may seek the advice of established medical organizations or licensed health professionals in determining the nature and scope of any diagnostic examinations to be used as part of any such physical or mental examination. The examining physician shall make a written statement of his or her findings.

(c) If the physician fails to obey a department order to submit to examination or attend a hearing, the department may petition the superior court for the judicial district of Hartford to order such examination or attendance, and said court or any judge assigned to said court shall have jurisdiction to issue such order.

(d) Subject to the provisions of section 4-182, no license shall be restricted, suspended or revoked by the board, and no physician's right to practice shall be limited by the board, until the physician has been given notice and opportunity for hearing in accordance with the regulations established by the commissioner.

Sec. 3. (NEW) (Effective July 1, 2010) (a) There shall be mandatory mediation for all civil actions brought to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider. Each such civil action for which a valid certificate has been filed pursuant to section 52-190a of the general statutes shall be referred to mandatory mediation pursuant to subsection (b) of this section, unless the civil action is referred to another alternative dispute resolution program agreed to by the parties. Mandatory mediation under this section shall be conducted for the purpose of achieving a prompt settlement or resolution of the civil action. For the purposes of this section, "health care provider" means a provider, as defined in subsection (b) of section 20-7b of the general statutes, an institution, as defined in section 19a-490 of the general statutes, or any other health care provider described in subsection (a) of section 52-184b of the general statutes.

(b) Prior to the close of pleadings in such civil action, the presiding judge of the civil session of the court of the judicial district in which the action is pending shall refer the action to mandatory mediation or any other alternative dispute resolution program agreed to by the parties. The duration of the referral shall not exceed one hundred twenty days unless the court, for good cause shown, extends the duration of the referral. The court shall stay the time periods within which all further pleadings, motions, requests, discovery and other procedures must be filed or undertaken, including, but not limited to, filings under section 52-192a of the general statutes, except with respect to any apportionment complaint under section 52-102b of the general statutes.

(c) Mediation under this section shall begin as soon as practicable, but not later than twenty business days after the date the action is referred under subsection (b) of this section. The first mediation session shall be conducted by the presiding judge or, at the discretion of the presiding judge, a different judge of the superior court or a senior judge or judge trial referee. At the first mediation session, the judge conducting the mediation session shall determine whether the action can be resolved at such mediation session, or, if the action cannot be resolved at that mediation session, whether the parties agree to participate in further mediation. If the action is not resolved at the first mediation session and the parties do not agree to further mediation, mandatory mediation under this section shall end. If the action is not resolved at the first mediation session and the parties agree to further mediation, the presiding judge of such civil session shall refer the action for mediation before an attorney who has experience as an attorney related to such civil actions and who has been a member of the bar of the state of Connecticut for at least five years. Upon such referral, mediation shall begin as soon as practicable, but not later than twenty business days after the referral. Fifty per cent of the cost of such mediation shall be paid by the plaintiffs, and fifty per cent of the cost of such mediation shall be apportioned among all defendants who are parties to the mediation.

(d) Each party to such action, and a representative of each insurer that may be liable to pay a claim on behalf of a defendant pursuant to such action, shall appear in person at each mediation session, unless participation by telephone or electronic means is permitted by the judge or mediator.

(e) If such mediation does not settle or conclude the civil action, and if all parties in attendance at such mediation agree, the mediator and all such parties may file a stipulation with the court setting forth any matter or conclusion that the parties and the mediator believe may be useful or relevant to narrow the issues, expedite discovery or assist the parties in preparing the civil action for trial.

(f) The judges of the Superior Court may adopt such rules as they deem necessary for the conduct of mediation pursuant to this section. Such rules shall be adopted in accordance with section 51-14 of the general statutes.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2010

19a-14

Sec. 2

October 1, 2010

20-13e

Sec. 3

July 1, 2010

New section

Statement of Purpose:

To (1) permit a person who files a complaint with the Department of Public Health alleging incompetence, negligence, fraud or deceit by a health care provider to obtain information about the status of the complaint, notice of any scheduled hearing or proposed consent order with respect to the complaint, and notice of the final disposition of the complaint, and (2) establish a mediation program for medical malpractice actions.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]