Enrolled HB 250: Making an expression of apology, 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.
00Enrolled HB 250 01 Making an expression of apology, sympathy, commiseration, compassion, or benevolence by 02 a health care provider inadmissible in a medical malpractice case; requiring a health care 03 provider to advise a patient or the patient's legal representative to seek legal advice before 04 making an agreement with the patient to correct an unanticipated outcome of medical 05 treatment or care; and amending Rules 402, 407, 408, 409, and 801, Alaska Rules of 06 Evidence. 07 _______________ 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, sympathy, commiseration, compassion, 13 or benevolence made orally, by conduct, or in writing by a health care provider or an
01 employee of a health care provider to a patient, the patient's relative, or a legal 02 representative of a patient concerning an unanticipated outcome of medical treatment 03 or care regarding the patient's discomfort, pain, suffering, injury, or death; 04 (2) evidence of an offer made by a health care provider to a patient, the 05 patient's relative, or a legal representative of a patient to correct or remediate an 06 unanticipated outcome of medical treatment or care; 07 (3) evidence of conduct or statements by a health care provider to 08 furnish, offer, accept, or promise to furnish or accept valuable consideration to 09 compromise or attempt to compromise or settle a medical malpractice claim disputed 10 as to validity or amount; 11 (4) evidence of furnishing, offering, or promising to pay medical, 12 hospital, or similar expenses, in full or in part, by a health care provider following an 13 unanticipated outcome of medical treatment or care; 14 (5) evidence of a health care provider requesting, demanding, 15 inquiring, or directing another to write-off, offer, or promise to pay medical, hospital, 16 or similar expenses, in whole or in part, following an unanticipated outcome of 17 medical treatment or care. 18 (b) If an expression of apology, sympathy, commiseration, compassion, or 19 benevolence made under (a)(1) of this section is made in conjunction with an 20 admission of liability or negligence, only the expression of apology, sympathy, 21 commiseration, compassion, or benevolence is inadmissible, and the admission of 22 liability or negligence may be admissible as evidence. 23 (c) This section does not apply to an offer of judgment under AS 09.30.065. 24 (d) In this section, 25 (1) "legal representative" means a legal guardian, attorney, person 26 designated to make decisions on behalf of a patient under a power of attorney, or 27 patient's agent; 28 (2) "relative" means 29 (A) the spouse of the patient; 30 (B) a parent, grandparent, stepparent, child, stepchild, 31 grandchild, brother, sister, half brother, or half sister of the patient;
01 (C) a parent of the patient's spouse; or 02 (D) an individual adopted by the patient. 03 Sec. 09.55.545. Agreement to correct unanticipated outcome or settle 04 claim; legal advice. An agreement to correct an unanticipated outcome of medical 05 treatment or care or to settle a claim of medical malpractice made between a health 06 care provider and a patient or the patient's legal representative is voidable if the health 07 care provider has not advised the patient or the patient's legal representative in writing 08 that the patient or the patient's legal representative may seek legal advice. 09 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 INDIRECT COURT RULE AMENDMENT. AS 09.55.544, added by sec. 1 of this 12 Act, has the effect of changing the following court rules in the manner specified: 13 (1) Rule 402, Alaska Rules of Evidence, by prohibiting the admission of an 14 expression of apology, sympathy, commiseration, compassion, or benevolence by a health 15 care provider in a medical malpractice cause of action regardless of its relevance; 16 (2) Rule 407, Alaska Rules of Evidence, by modifying the admissibility of 17 evidence of subsequent remedial measures so that evidence of subsequent remedial measures 18 in a malpractice cause of action is not admissible for any purpose; 19 (3) Rule 408, Alaska Rules of Evidence, by modifying the admissibility of 20 evidence of compromise and offers of compromise or settlement in a medical malpractice 21 cause of action so that evidence of compromise or settlement in a medical malpractice cause 22 of action is not admissible for any purpose; 23 (4) Rule 409, Alaska Rules of Evidence, by modifying the admissibility of 24 evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses by 25 a health care provider in a medical malpractice cause of action; 26 (5) Rule 801, Alaska Rules of Evidence, by prohibiting the admission of an 27 offer of correction, remediation, or settlement by a health care provider in a medical 28 malpractice cause of action. 29 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 APPLICABILITY. AS 09.55.544 and 09.55.545, enacted by sec. 1 of this Act, apply
01 to causes of action that accrue on or after the effective date of this Act. 02 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 CONDITIONAL EFFECT. AS 09.55.544 and 09.55.545, enacted by sec. 1 of this Act, 05 take effect only if sec. 2 of this Act receives the two-thirds majority vote of each house 06 required by art. IV, sec. 15, Constitution of the State of Alaska.