HB 250: "An Act making an expression of apology, responsibility, liability, sympathy, commiseration, compassion, or benevolence by a health care provider inadmissible in a medical malpractice case; requiring a health care provider to advise a patient or the patient's legal representative to seek legal advice before making an agreement with the patient to correct an unanticipated outcome of medical treatment or care; and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of Evidence."
00 HOUSE BILL NO. 250 01 "An Act making an expression of apology, responsibility, liability, sympathy, 02 commiseration, compassion, or benevolence by a health care provider inadmissible in a 03 medical malpractice case; requiring a health care provider to advise a patient or the 04 patient's legal representative to seek legal advice before making an agreement with the 05 patient to correct an unanticipated outcome of medical treatment or care; and amending 06 Rules 402, 407, 408, 409, and 801, Alaska Rules of Evidence." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 09.55 is amended by adding new sections to read: 09 Sec. 09.55.544. Evidence. (a) In a civil action or arbitration under 10 AS 09.55.530 - 09.55.560, notwithstanding AS 09.43.050(2), 09.43.420(a), or 11 09.43.440(e), the following are not admissible as evidence: 12 (1) an expression of apology, responsibility, liability, sympathy, 13 commiseration, compassion, or benevolence made orally, by conduct, or in writing by
01 a health care provider or an employee of a health care provider to a patient, the 02 patient's relative, or a legal representative of a patient concerning an unanticipated 03 outcome of medical treatment or care regarding the patient's discomfort, pain, 04 suffering, injury, or death; 05 (2) evidence of an offer made by a health care provider to a patient, the 06 patient's relative, or a legal representative of a patient to correct or remediate an 07 unanticipated outcome of medical treatment or care; 08 (3) evidence of conduct or statements by a health care provider to 09 furnish, offer, accept, or promise to furnish or accept valuable consideration to 10 compromise or attempt to compromise or settle a medical malpractice claim disputed 11 as to validity or amount; 12 (4) evidence of furnishing, offering, or promising to pay medical, 13 hospital, or similar expenses by a health care provider following an unanticipated 14 outcome of medical treatment or care. 15 (b) This section does not apply to an offer of judgment under AS 09.30.065. 16 (c) In this section, 17 (1) "legal representative" means a legal guardian, attorney, person 18 designated to make decisions on behalf of a patient under a power of attorney, or 19 patient's agent; 20 (2) "relative" means 21 (A) the spouse of the patient; 22 (B) a parent, grandparent, stepparent, child, stepchild, 23 grandchild, brother, sister, half brother, or half sister of the patient; 24 (C) a parent of the patient's spouse; or 25 (D) an individual adopted by the patient. 26 Sec. 09.55.545. Agreement to correct unanticipated outcome or settle 27 claim; legal advice. An agreement to correct an unanticipated outcome of medical 28 treatment or care or to settle a claim of medical malpractice made between a health 29 care provider and a patient or the patient's legal representative is voidable if the health 30 care provider has not advised the patient or the patient's legal representative to seek 31 legal advice.
01 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 INDIRECT COURT RULE AMENDMENT. AS 09.55.544, added by sec. 1 of this 04 Act, has the effect of changing the following court rules in the manner specified: 05 (1) Rule 402, Alaska Rules of Evidence, by prohibiting the admission of an 06 expression of apology, responsibility, liability, sympathy, commiseration, compassion, or 07 benevolence by a health care provider in a medical malpractice cause of action regardless of 08 its relevance; 09 (2) Rule 407, Alaska Rules of Evidence, by modifying the admissibility of 10 evidence of subsequent remedial measures so that evidence of subsequent remedial measures 11 in a malpractice cause of action is not admissible for any purpose; 12 (3) Rule 408, Alaska Rules of Evidence, by modifying the admissibility of 13 evidence of compromise and offers of compromise or settlement in a medical malpractice 14 cause of action so that evidence of compromise or settlement in a medical malpractice cause 15 of action is not admissible for any purpose; 16 (4) Rule 409, Alaska Rules of Evidence, by modifying the admissibility of 17 evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses by 18 a health care provider in a medical malpractice cause of action; 19 (5) Rule 801, Alaska Rules of Evidence, by prohibiting the admission of an 20 offer of correction, remediation, or settlement by a health care provider in a medical 21 malpractice cause of action. 22 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. AS 09.55.544 and 09.55.545, as enacted by sec. 1 of this Act, 25 apply to causes of action that accrue on or after the effective date of this Act. 26 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 CONDITIONAL EFFECT. AS 09.55.544, as enacted by sec. 1 of this Act, takes effect 29 only if sec. 2 of this Act receives the two-thirds majority vote of each house required by art. 30 IV, sec. 15, Constitution of the State of Alaska.