SPONSOR:

Rep. Smith & Sen. Venables

Reps. Atkins, Buckworth, DiPinto, Ewing, Fallon, Hocker, Hudson, Maier; Sens. Bunting, Sorenson, Amick, Copeland, Simpson

HOUSE OF REPRESENTATIVES

142nd GENERAL ASSEMBLY

HOUSE BILL NO. 182

AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO THE PROTECTION OF CONTINUED ACCESS TO HEALTH CARE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. This Act may be cited as the "Health Care Access Act".

Section 2. Amend §6801 of Title 18 of the Delaware Code by adding a new Subsection §6801 (10) to read as follows:

"(10) ‘Non-economic damages’ means damages arising from pain, suffering, inconvenience, physical impairment, mental anguish emotional pain and suffering, loss of consortium, and any other non-pecuniary damages."

Section 3. Amend § 6853 of Title 18 of the Delaware Code, by redesignating the existing language thereof as subsection (c), and by inserting therein the following new subsections:

"(a) No health care negligence suit shall be filed in this state unless the complaint is accompanied by an affidavit of merit signed by an expert witness, as defined in §6854 of this Title, stating that there has been health care medical negligence. If an expert affidavit of merit is not submitted at the time of filing of the complaint and the statute of limitations is less than sixty (60) days hence, the Plaintiff may file with his complaint an application to file the necessary accompanying affidavit within sixty (60) days of the date of filing the complaint. The defendant is not required to take any action with respect to the complaint in such cases until twenty (20) days after the required affidavit is filed. If within that sixty (60) day period an affidavit of merit has not been filed, this suit shall be dismissed with prejudice. If there is more than one defendant there shall be an affidavit of merit by such an expert witness in the specialty of each defendant."

(b) The affidavit of merit shall state with particularity the expert’s competency and compliance with the qualification set forth in § 6854, and shall set forth the expert’s opinion as to how the standard of care was breached, and how such breach resulted in injury or death.".

Section 4. Amend Chapter 68, Title 18 of the Delaware Code, by deleting § 6854 thereof in its entirety and by substituting in lieu thereof the following:

"§ 6854. Expert witnesses.

    1. No person shall be competent to give expert medical testimony as to applicable standards of skill and care unless such person is licensed to practice and actively practices and is board certified by a board within the American Board of Medical Specialties in the specialty of the defendant. Such experts must devote at least one thousand (1000) hours per year to the active practice of medicine and must derive no more than twenty-percent (20%) of their professional income from medico-legal activities (e.g. case review, deposition testimony, or trial testimony).

    2. A person who is licensed in another state, qualifies under subsection (a) of this Section, and who testifies as an expert witness in Delaware in any action for injury or death against a physician, whether in contract or tort, arising out of the provision of or failure to provide health care services, shall be deemed to have a temporary license to practice medicine in Delaware for the purpose of providing such testimony and shall be subject to the authority of the Board of Medical Practice and the provisions of its disciplinary proceedings in Title 24 Chapter 17 of the Delaware Code.".

Section 5. Amend § 6864 (a) of Title 18 of the Delaware Code by deleting the word "may" and replacing it with the word "shall".

Section 6. Amend Chapter 68 of Title 18 of the Delaware Code by adding a new § 6866 to read as follows:

"§ 6866 Limitation on non-economic damages in medical liability cases.

In any action for damages for injury or death against any health care provider or health care providers, whether based on tort, contract or otherwise, arising out of the provision of or failure to provide health care services, the prevailing plaintiff or plaintiffs shall be entitled to compensation for non-economic damages, provided that the total amount of damages awarded for non-economic losses shall be commensurate with pecuniary damages but in any a case shall not exceed a total of $250,000 adjudged against all defendants. Any award of damages shall separately state the elements of damages upon which the award is based and the amount assigned to each element.".

Section 7. Further Amend Chapter 68 of Title 18 of the Delaware Code by adding a new § 6867 to read as follows:

"Chapter 63 of Title 10 of the Delaware Code shall not apply to this Chapter.".

Section 8. Further Amend Chapter 68 of Title 18 of the Delaware Code by adding a new § 6868 to read as follows:

"§ 6868 Joint and Several Liability Abolition.
    1. Definitions

1. ‘Damages’ means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, any other theory of damages such as fear or loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.

2. ‘Fault’ means an act or omission of a person that is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability, or failure to warn.

3. ‘Person’ means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity or unincorporated association of persons.

(b) Several Liability

In any action for personal injury, property damage accompanying personal injury, or wrongful death, the liability of each defendant for damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant’s fault, and that amount shall be the maximum recoverable against the defendant.

(c) Fault of Nonparties

1. In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death, or damage to property, tangible or intangible, regardless of whether said person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice within one-hundred twenty (120) days of the date of trial that a nonparty was wholly or partially at fault. In cases where there has been a settlement, the maximum recovery by the claimant shall not exceed the amount of damages awarded by the jury or by the court. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty’s name and last-known address, or the best identification of such nonparty that is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault.

2. Nothing in this Section is meant to eliminate or diminish any defenses or immunities that currently exist, except as expressly noted herein. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of such fault shall not subject any nonparty to liability in this or any other action, or be introduced as evidence of liability in any action.

(d) Concert of Action

Joint liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortuous act, or actively take part in it. Any person held jointly liable under the Section shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible only for the portion of fault assessed to those with whom he acted in concert under this Section.

(e) Burden of Proof

The burden of alleging and providing fault shall be upon the person who seeks to establish such fault.

(f) Limitations

Nothing in this Section shall be construed to create a cause of action. Nothing in this Section shall be construed, in any way, to alter the immunity of any person.

(g) Punitive Damages

A claimant injured as a result of medical negligence shall be entitled to compensatory damages. The award of punitive damages is limited to be made to the Board of Medical Practice of the State of Delaware for the purpose of improving medical care. Attorney’s fees and expenses shall in no event be deducted from the award of punitive damages to the Board of Medical Practice.".

SYNOPSIS

This bill protects patient access to health care providers in Delaware by:

    1. requiring a Certificate of Merit for each defendant in all health care negligence suits,

    2. mandating periodic payments of jury awards,

    3. placing a cap of $250,000 on non-economic damages; and

    4. abolishing joint and several liability in health care negligence cases.